Mr Ian Swan v Mr Phillip King

[2015] FWC 6701

[2015] FWC 6701

FAIR WORK COMMISSION

DECISION

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

Mr Ian Swan
v
Mr Phillip King; Integrated Trolley Management Pty Ltd T/A ITM; Woolworths Ltd T/A Woolworths
(C2015/1629)

COMMISSIONER BOOTH BRISBANE, 1 OCTOBER 2015

Application to deal with contraventions involving dismissal - jurisdiction: out of time.

[1] Mr Ian Swan seeks an extension of time to make application for dismissal relief under s.365 of the Fair Work Act 2009 (Cth) (general protections application). The application was lodged on 10 February 2015.

[2] Mr Swan had earlier applied for unfair dismissal relief under s.372 (first application) brought against Integrated Trolley Management Pty Ltd t/a ITM (ITM). ITM contracted with Woolworths Limited (Woolworths) for trolley management at Centro, a shopping centre in Gympie. ITM in turn sub-contracted to Mr Phillip King.

[3] The applications relate to Mr Swan’s dismissal from his job of trolley collecting at Centro by letter of 11 August 2014.

[4] On 21 January 2015, Vice President Lawler made an order dismissing the first application. The order referred to His Honour’s oral reasons given at the hearing of the matter on 8 December 2014. In essence his Honour found that Mr Swan was not employed by ITM but by Mr King, and accordingly ITM’s jurisdictional objection was upheld. At the hearing, His Honour formed the view that Mr King was a small business employer and noted that Mr Swan had been employed for less than 12 months, and accordingly he would not be able to amend to add or substitute Mr King for ITM.

[5] His Honour noted in transcript at PN727-PN728 as follows, addressing Mr Swan:

“When your application is dismissed you would be free to file an application under s.365 … But … you are out of time to file an application under section 365 and time would need to be extended.”

[6] At PN741 and PN745 His Honour refers to a 21-day period, but was referring there to the time allowed for an appeal against his order once issued and not the time within which Mr Swan must file any general protections application.

[7] Mr Swan’s general protections application names Mr King as first respondent, ITM, second respondent and Woolworths, third respondent respectively. It was lodged 20 days after the order dismissing the first application issued.

[8] This decision relates to Mr Swan’s application for an extension of time to lodge the general protections application. Extension of time is necessary because the general protections application was lodged almost six months after Mr Swan’s employment was terminated.

[9] The Act provides as follows.

366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.

[10] Mr Swan, who represented himself, bears the onus of demonstrating exceptional circumstances. If the Fair Work Commission (the Commission) is satisfied exceptional circumstances exist, then, as a second step, the Commission must consider if it should exercise its discretion to allow the further period.

[11] The general protections application was filed 183 days after the termination letter. I note that Mr Swan filed the first application on 18 August 2015, well within the 21 days allowed for unfair dismissal applications.

[12] Woolworths, in resisting the application for additional time, notes the present application was lodged 64 days after the Vice President’s oral reasons. But the 64-day period is not the appropriate measure. Even though Mr Swan was on notice that his application would be dismissed at the date of the hearing, the dismissal of the first application did not take effect until the order was made. As Woolworths itself noted in its submissions, “until the order issued, Mr Swan was disentitled from lodging the general protections application”.

Mr Swan’s evidence and submissions

[13] Mr Swan commenced work as a trolley collector on 12 December 2013, and was dismissed on 11 August 2014. He submitted that he immediately disputed the dismissal and brought the first application promptly.

[14] In April 2014 Mr Swan was the subject of a customer complaint. He was suspended without pay for a short period while the complaint was investigated.

[15] On 8 July 2014, Mr Swan wrote to the Manager of the Centro Centre (a Woolworths’ employee) complaining that Mr King had reduced his work hours. He claimed that this was a result of the wage increase that came into effect on 1 July, that he was being underpaid and that Mr King had a “long history of underpaying or simply not paying his employees”. This appears to be the workplace right exercised by Mr King that underpins the general protections application.

[16] On 11 July 2014, Mr Swan was involved in an incident in the car park. Two customers were involved in an altercation with Mr Swan. They reported the incident to the police, without, it seems pressing the matter. Characterisation of the incident as an assault by Mr Swan on the women was hotly disputed by Mr Swan. He asserted that it was he who was the victim of assault. He produced his own statutory declaration to that effect, and two supporting statutory declarations made by other shoppers who witnessed the altercation, or part of it.

[17] Woolworths apparently received a report of the incident, and wrote to ITM on 14 July asking that it investigate, and that Mr Swan “be taken offsite until the investigation is complete.” He was again suspended without pay.

[18] Four weeks later, on 11 August 2014 he was dismissed by letter from Mr King, stating that Woolworths had asked that Mr Swan be excluded from the shopping centre.

[19] Mr Swan submitted that he did not name Mr King or Woolworths as respondents to the first application because the employment relationship was not clear at the time. He submitted that Mr King was, in his view, employed by ITM and his reasons for so understanding were the subject of his own evidence and cross-examination. That ITM was his employer was reinforced in Mr Swan’s mind by the involvement of ITM (and Woolworths) in the incidents of April and July 2014, including the fact that Mr Hills wrote the termination letter to be signed by Mr King.

[20] Mr Swan submits that Woolworths has ultimate control over trolley collectors, citing by Mr Hills’ evidence that in suspending Mr Swan he was acting on Woolworths’ instructions.

Respondents’ evidence and submissions

[21] ITM, represented by Mr Hills, contested Mr Swan’s version of the events of 11 July, and in essence submitted that the investigation undertaken by it supported the version of the two women who claimed to have been assaulted by Mr Swan. Mr Hills does not accept the other women’s evidence claiming that they did not witness the start of the altercation, only later events. He also learned of a further complaint against Mr Swan relating to bumping Big W stock with trolleys.

[22] He stated that he discussed the alleged underpayments with Mr Swan, and produced to him the materials showing that he had been paid slightly more than required, not less.

[23] Mr Hills completed his investigations, including discussions with Mr Swan and the two witnesses and Mr King. He concluded “that Mr Swan’s attitude was a problem.”

[24] However he submitted that any decision as to Mr Swan’s dismissal was a matter for Mr King alone.

[25] Mr Hills made a report to Woolworths on 18 July.

[26] Woolworths apparently then conducted its own investigation, and on 25 July sought additional detail from Mr Hills which Mr Hills provided by email dated 28 July, detailing Mr Swan’s history of complaints including the incidents of April 2014, 11 July 2014, the Big W matter and the proposed reduction in Mr Swan’s hours, concluding that Mr Swan should be dismissed both for his conduct and for the safety of customers.

[27] Woolworths was of the view, in the email of 25 July, that Mr Swan’s employment was a matter for ITM and Mr King, stating in regard to possible dismissal: “We trust you will do so based on sound reasoning and with the correct severance package.”

[28] Mr Hills for ITM and Mr King, in joint submissions, submitted that exceptional circumstances do not exist. They claim that Mr Swan persisted in his first application long after it should have been clear that ITM was not his employer, based on Mr Swan’s letter to the Fair Work Ombudsman and the content of the first application. His failure to comprehend that he might have brought the general protections application is not exceptional circumstances.

[29] ITM agreed that Mr Hills wrote the termination letter for Mr King, largely because Mr King was not skilled at such a task.

[30] Further, they argued that the application is vexatious and frivolous, based on personal animosity, and with poor prospects of success, in essence submitting that Mr Swan was dismissed for cause, and in accordance with ITM’s and Mr King’s contractual obligations, and not as a result of asserting workplace right in relation to alleged underpayment.

[31] Woolworths, through its solicitors, Henry Davis York, submitted:

• it was not in an employment relationship with Mr Swan;



• the general protections application is not to be treated as a continuation of the first application;



• Mr Swan’s claim of ignorance of his rights and possible cause of action is not exceptional circumstances, citing Nulty;



• the 20 days after the order amounted to further delay given that Mr Swan was given ample prior notice and should have lodged in a far shorter time;



• His Honour’s comments about 21 days properly read referred to the time for an appeal from his order, not time in which to lodge the general protections application;



• overall, Mr Swan had not made out special circumstances.

Consideration

[32] The essence of Mr Swan’s argument is that until the order made by the Vice President, or at least until His Honour’s oral reasons some time earlier, he did not know that his earlier application was brought against the wrong party, and that he might bring the general protections application.

[33] He brought the application 20 days after the order was formally made.

[34] It is apparent that Mr Swan was, and remains, distressed at the termination and its effects on him. The Vice President noted that if Mr Swan’s version of events is correct he was indeed treated unfairly, but that does not necessarily mean he has a remedy under the Act.

[35] I turn attention to the evidence and submissions as they relate to the criteria stated in s.366(2).

(a) Reason for the delay

[36] Mr Swan’s main reason for the delay is that he was pursuing his first application, in the belief that he was engaged by ITM. As the Vice President found, that was not correct: he was employed by Mr King, and not ITM.

[37] I agree with Woolworths that the general protections application was not a continuation of the first application and the delay, is properly measured from the date of dismissal, not the date of the order. I also agree that the 20 days between the order and the general protections application are part of the overall delay to be considered, namely from 11 August 2014.

[38] The circumstances of this application are unusual in that Mr Swan made the earlier application promptly, pursuing it to the point of the Vice President’s comments at the hearing, lodging this application 20 days after the order was made. Until that point he was prevented from making the general protections application because he had an unfair dismissal application on foot. This is acknowledged by Woolworths in its submissions.

[39] Mr Swan’s circumstances can be contrasted to the decision in McConnell v A & PM Fornataro T/a Tony’s Plumbing Service where the applicant’s own tardiness in seeking advice was a significant factor in explaining the delay.

[40] Woolworths argued that Mr Swan’s error in choice of jurisdiction arose from his ignorance of the law and thus is not an exceptional circumstance on Nulty principles. But that does not reflect the full facts.

[41] Woolworths drew attention to Z Gao v Department of Human Services asserting it supported its view that awaiting His Honour’s order was not exceptional circumstances. In that case, Mr Gao sought management review of his termination before filing. The employer did not respond and after a considerable delay Mr Gao made a second request. The facts of this case are different in that Mr Swan made an application very quickly and only later, at the hearing, knew for certain it was not valid.

[42] I note Mr Swan’s submission that he was distressed at his termination and the events surrounding it, including the police complaint. He also found the task of preparing his application and supporting evidence daunting. However it is well established that distress alone or the complexity of proceedings cannot explain delay, especially as it also refers to the time after the hearing and His Honour’s comments, and the later order.

[43] However I am of the view that lodging when Mr Swan did was sufficiently timely given all that had transpired before. I am satisfied that the events as laid out in the materials explain the delay and are exceptional.

[44] This factor weighs in favour of extra time.

(b) Action taken to dispute the dismissal

[45] Mr Swan lodged the first application very promptly after he was given notice. He had, in the period of his suspension disputed both the alleged misconduct and the wage matters. I conclude that he took action to dispute the dismissal. This factor weighs in favour of additional time.

(c) Prejudice to the employer

[46] No party argued prejudice. This factor is neutral.

(d) Merits of the application

[47] The joint submissions by ITM and Mr King, and their respective Forms 8A are largely directed at the merits of the general protections application. Woolworths did not argue merits, except possibly to establish the contractual distance between it and Mr Swan.

[48] The task here is not to determine the merits of Mr Swan’s case, and, in light of the contested and untested evidence, that is not even possible. The task here is to ascertain if the merits, on the materials before the Commission, support the application for extra time, or weigh against it. In this regard, guidance was given by a Full Bench of the former Commission in H Kyvelos v Champion Socks Pty Ltd.

[49] On the material before me, Mr Swan has an arguable case that his dismissal was an adverse action by Mr King and ITM because of his complaint of wage matters. ITM argues it dealt with the wage complaint fairly. But that does not mean Mr Swan has no prospects. Properly argued and supported by adequate evidence, Mr Swan might even persuade a Judge. However there are significant evidentiary hurdles before him should the matter proceed to Court.

[50] In regard to Mr King and ITM, this factor weighs somewhat in favour of extra time.

[51] As against Woolworths, I am not satisfied that Mr King has a prima facie case. The materials presented by Mr Hills place Woolworths well outside the factual matrix that would support it having taken adverse action. Woolworths at the most asked its contractor to investigate complaints, including wage matters and alleged misconduct, and for the contractor to take appropriate action. This appears consistent with the terms of the contract and sub-contract as explained in the evidence.

[52] I find this factor weighs against extra time in regard to the third respondent, Woolworths.

(e) Fairness as between the person and other persons in a like position

[53] No party argues fairness, and this factor is neutral.

Conclusion

[54] The factors, on balance, support exceptional circumstances, including the unusual nature of the proceedings.

[55] Having so found, I consider whether, in my discretion, extra time should be given.

[56] In regard to Woolworths, I exercise my discretion against giving the extra time. The remoteness of Mr Swan’s employment from Woolworths, and the evidence as to Woolworths’ conduct indicate that the merits of Mr Swan’s application against Woolworths are not such that extra time should be given.

[57] As to Mr King and ITM, each was closely connected with Mr Swan. Each was involved in his complaints about payment and in the decisions to suspend and dismiss him. Both were apprised of the first application. Neither should have been surprised, given the comments by the Vice President, that the general protections application was brought once the order issued.

[58] I consider, on balance, that Mr Swan should have additional time for his application against Mr King and ITM.

[59] In this context, I am persuaded that I should exercise my discretion under s.366(1)(b) to allow the application be brought against the first Respondent (Philip King) and the second Respondent (ITM) in another period of time being 10 February 2015.

[60] For reasons detailed above I am not persuaded that I should exercise my discretion as against the third Respondent (Woolworths).

[61] As a consequence of this finding, the Application will be listed for conference with the Applicant and the first and second Respondents in the near future.

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