Mr Gregory Pfeifer v Cleanaway Operations Pty Ltd

[2016] FWC 7730

[2016] FWC 7730

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Gregory Pfeifer
v
Cleanaway Operations Pty Ltd
(C2016/5536)

COMMISSIONER SAUNDERS NEWCASTLE, 2 NOVEMBER 2016

Application to deal with contraventions involving dismissal - application for extension of time refused – application refused.

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Mr Gregory Pfeifer (the applicant) a further period for his general protections application (the Application) to be made.

The Hearing

[3] On 28 October 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant gave evidence in support of his application for an extension of time. The respondent did not adduce any evidence, but made submissions in opposition to the applicant’s application for an extension of time.

Legislative Scheme

[5] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:

“(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3

[7] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

Consideration

Paragraph 366(2)(a) – reasons for delay

[8] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6

[9] There must be an acceptable reason for the delay in making the general protections application. 7

[10] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8 Ignorance of the 21 day timeframe is not an exceptional circumstance.9

[11] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 10 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:11

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

Relevant chronology of events and reasons for delay

[12] There is no dispute and I am satisfied on the evidence that the applicant was dismissed by the respondent on 22 August 2016. He was notified of his dismissal on that day.

[13] The 21 day time period for the applicant to make his Application expired on 12 September 2016. 12 Given that the applicant filed his Application on 13 September 2016, the Application was one day late.13

[14] In accordance with the principles summarised in paragraphs [8] to [11] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 12 September 2016 to 13 September 2016. However, the circumstances from the time of the dismissal (22 August 2016) must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.

[15] In his outline of argument, the applicant contends, in effect, that there were three reasons for the delay in filing his Application:

(a) First, following his dismissal, the applicant submits that he felt extremely stressed, anxious, depressed and worthless, given he had worked at the respondent’s organisation for in excess of 21 years;

(b) Secondly, the applicant contends that his legal representative miscalculated 21 days from the day following the dismissal, calculating the lodgement date as 13 September 2016 rather than 12 September 2016; and

(c) Thirdly, the applicant contends that delays were caused by the process of reviewing numerous enterprise agreements to ascertain if they applied to the applicant’s employment with the respondent, and accordingly whether the applicant was eligible to apply for unfair dismissal.

[16] As to the first reason relied on by the applicant, he gave the following evidence in support of this reason in his witness statement:

“After my termination, I felt extremely stressed, anxious and depressed and have been consulting with my doctor, who has recommended a Mental Health Plan with a specialist. I am currently on medication with regular reviews. Attached is a copy of the Mental Health Plan dated 24 October 2016.”

[17] The Mental Health Plan dated 24 October 2016 has been signed by the applicant and his general practitioner, Dr Singh. It records a diagnosis of “depression” and under the heading “Mental Status Examination” records the following as “normal”:

• appearance and a general behaviour;



• thinking;



• perception;



• sleep;



• cognition (level of consciousness/delirium/intelligence);



• appetite;



• attention/concentration;



• memory;



• insight;



• orientation;



• judgement (ability to make rational decisions);



• anxiety symptoms (physical & emotional); and



• speech.

[18] The Mental Health Plan records the following as other than “normal”:

• mood (depressed/labile) is recorded as both “normal” and “other: low”;



• affect (flat/blunted) is recorded as “other: flat”; and



• motivation/energy is recorded as “other: low”.

[19] Step two of the Mental Health Plan records the goal for the applicant as “reduce symptoms, improve functioning” and states that the initial action plan for the applicant is cognitive behavioural therapy.

[20] Dr Singh was not called to give evidence on behalf of the applicant, nor was any evidence called from any other expert in relation to any medical condition the applicant was suffering in the period after his dismissal or the impact of any such condition on the applicant’s level of functioning or his ability or capacity to make decisions concerning the commencement of legal proceedings.

[21] On the basis of the evidence adduced in relation to the applicant’s medical condition and his mental state following his dismissal on 22 August 2016, I am not satisfied that he was incapacitated or otherwise unable to make a decision about whether to commence proceedings against the respondent in the period from 22 August 2016 until 13 September 2016.

[22] As to the second reason relied on by the applicant, it is important to note that in and of itself representative error will not provide an acceptable explanation for a delay. A person relying upon representative error must also show that the person was blameless and did not by act or omission cause or contribute to the error. 14

[23] In the present case, although the applicant made an assertion of representative error in his outline of argument no evidence was adduced to support that contention. In particular, notwithstanding that the applicant was represented by a solicitor in the hearing concerning whether or not I should exercise my discretion to extend the time for his Application to be filed, no evidence was adduced from the applicant, either in his written witness statement or in his oral evidence, in relation to the alleged representative error. Further, no evidence was adduced from the solicitor, or the firm of solicitors, who allegedly made the representative error. In those circumstances, I cannot be satisfied that a representative error was made or that, if such an error did occur, the applicant was “blameless” and did not by act or omission cause or contribute to the error.

[24] If indeed a representative error did occur in relation to the calculation of the expiry of the 21 day period following the applicant’s dismissal, it seems that a second representative error may have occurred in failing to put on evidence in relation to the error and whether the applicant was “blameless” in the circumstances. Those are matters that the applicant will no doubt take up with his solicitors in the future, but they cannot assist the applicant in this case because I have no evidence in relation to them.

[25] As to the third reason relied on by the applicant, it is not out of the ordinary course, unusual, special or uncommon for investigations to occur and advice be given in the period following dismissal in relation to the different legal remedies which may be available for a person who has recently been dismissed.

[26] Whilst I do have some sympathy for the applicant, I am not satisfied on the evidence before me that the applicant’s circumstances were out of the ordinary course, unusual, special or uncommon, or that he has provided an adequate explanation for the one day delay in filing his Application. This factor weighs against granting the applicant an extension of time.

Paragraph 366(2)(b) – any action taken by the person to dispute the dismissal

[27] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 15

[28] After the applicant was informed at the meeting on 22 August 2016 that his employment was being terminated, he took action to dispute his dismissal by stating to the representatives of the respondent who were in attendance at the meeting: “I’ve done nothing wrong”. This is the only step the applicant has taken to dispute his dismissal.

[29] This factor weighs slightly in favour of granting the applicant an extension of time.

Paragraph 366 (2)(c) - prejudice to the employer (including prejudice caused by the delay)

[30] Prejudice to the employer will weigh against granting an extension of time. 16 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.17

[31] A long delay gives rise “to a general presumption of prejudice”. 18

[32] The employer must produce evidence to demonstrate prejudice. No such evidence was adduced in this case.

[33] The period of the delay in this matter was one day. That is obviously a short period of delay.

[34] In its outline of argument, the respondent asserts that the lateness of the Application has caused a disadvantage or unfairness to the business, in particular because new issues have been raised by the applicant which were not included in the original Application filed on 13 September 2016.

[35] Noting that the delay was one day, I am satisfied that there would be no greater prejudice to the respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the respondent is a neutral consideration.

Paragraph 366(2)(d) - merits of the application

[36] The applicant contends that his employment was terminated because he exercised a workplace right by making an inquiry in relation to his employment, namely, in relation to “the contradiction between the Absolutes and Training Plan relating to driver licensing, vehicle definition and safety imperatives”. The respondent denies this assertion and contends that it dismissed the applicant for failing “to demonstrate a commitment to a level of performance that is considered acceptable to the Company”.

[37] The resolution of the contested factual question concerning the reasons for the termination of the applicant’s employment will only be able to be determined after a full hearing on the merits, including cross examination of the decision makers. In those circumstances, I am satisfied that the merits of the Application is a neutral consideration in relation to whether or not I should extend time for the Application to be made.

Paragraph 366(2)(e) - fairness as between the person and other persons in a like position

[38] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 19 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[39] I am not satisfied that the issue of fairness as between the applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[40] Having taken into account the matters referred to in paragraphs [12] to [39] above, I am, on balance, not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. The applicant’s circumstances were not out of the ordinary course, unusual, special or uncommon.

[41] Accordingly, the application for an extension of time is refused. The jurisdictional objection as to the Application being made out of time is upheld and the substantive Application is dismissed.

COMMISSIONER

Appearances:

Ms A Munshey, solicitor from R B Flinders, on behalf of the applicant;

Ms K Llewellyn, Employee Relations Manager for the respondent.

Hearing details:

2016.

Newcastle:

October, 28.

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2   Secction 366(2) of the Act.

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 4 [2011] 203 IR 1

 5   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 6   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 8   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 9   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 10   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 11   [2016] FWCFB 349 at [31]

 12   That is, 21 days from 22 August 2016 (not including 22 August) is 12 September 2016.

 13   That is, 13 September 2016 is one day after 12 September 2016.

 14   Clark v Ringwood Private Hospital (1997) 74 IR 413 at 418‒42

 15   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 16   Ibid.

 17   Ibid.

 18   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 19   [2016] FWCFB 6963

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