Mr Jason Cannon v Quad Services

[2018] FWC 7651

[2018] FWC 7651

FAIR WORK COMMISSION

DECISION

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

Mr Jason Cannon
v
Quad Services
(C2018/6302)

COMMISSIONER JOHNS SYDNEY, 17 DECEMBER 2018

Application to deal with contraventions involving dismissal - whether to extend time for lodging the application.

Introduction

[1] On 8 November 2018 Jason Cannon (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Act). The Respondent to the application is Quad Services (Respondent).

[2] The factual background to the Application is as follows:

a) On 5 May 2018 the Applicant commenced employment with the Respondent.

b) The Applicant was employed as a cleaner.

c) On 15 October 2018 the Respondent terminated the Applicant’s employment. That is to say the employment relationship was for a period just over 5 months (but less than 6 months). Consequently, the Applicant was not protected from unfair dismissal. The Respondent contends the dismissal was for unsatisfactory performance. The Applicant denies any wrong doing. He has a number of complaints about the performance of his co-workers.

d) On or about 26 October 2018 the Applicant contacted Dismissals Direct about the dismissal. Dismissals Direct is a paid agent and private provider of advice and representation in respect of unfair dismissal claims.

e) On Friday, 26 October 2018 Dismissals Direct advised the Applicant that “strict time limits apply to employment claims.”

f) On Thursday, 1 November 2018 the Applicant emailed Dismissals Direct about why he thought he had been unfairly dismissed.

g) The 21 day time limit for filing a general protections claim involving dismissal expired on 5 November 2018.

h) On or about 7 November 2018 Dismissals Direct advised the Applicant indicating that “[they weren’t] the right person to email.”

i) On 8 November 2018 the Applicant filed the present application.

[3] Section 365(1)(a) of the Act requires that an application made under s.365 be made “within 21 days after the dismissal took effect”.

[4] As stated above, 21 days after the dismissal took effect was 5 November 2018.

[5] Consequently, the present application was filed 24 days after the dismissal took effect. As such the application was lodged 3 days outside of the 21 day time limit for making the application.

[6] When he lodged his application the Applicant conceded that his application was out of time. He explained the delay as follows,

“I made the lodgement through fair work direct within the first 21 days, I sent them an email with all my evidence, letters and other evidence I had. As I found out I have email[ed] the wrong person. So I rang Law access they advised me to put the claim in through fair work [ombudsman]’s site so I did that explained it wasn’t within 21 days (it was in before to your days just got given wrong information) and in paid and filled in the unfair dismissal forms I received a phone call today saying I wasn’t employed long enough I just fell on the bracket, they advised me to fill this form out and lodge it she also said that [I should] explain to you that I had lodged the forms for unfair dismissal in the 21 timeframe.”

[7] Because the application was lodged out of time it is necessary for the Commission to first determine whether to allow a further period for the application to be made (i.e. decide whether to grant an extension of time).

[8] On 6 November 2018 the Commission wrote to the applicant noting that the application was lodged with the Commission outside the 21 day statutory time frame. The Commission also wrote to the Respondent inviting it to participate in conciliation, who declined to do so. The matter was allocated to me and on 22 November 2018 I issued directions for the parties to file any evidence, submissions or documents in support of their respective positions addressing subsection 366(2) of the FW Act.

[9] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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] A Full Bench of the Commission has held (in the context of unfair dismissal applications) the following in relation to “exceptional circumstances”: 1

“[13] 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.”

[11] The Applicant bears the onus of demonstrating that exceptional circumstances exist. 2

[12] The parties complied with the Directions I issued on 22 November 2018. Consequently, in coming to this decision the Commission, as presently constituted, has, in addition to the evidence received at the hearing on 6 December 2018, had regard to the following:

a) Photographs from the Applicant of,

i. the work sites which relate to the dismissal,

ii. a letter the Applicant wrote to the Respondent,

iii. a warning letter dated 9 October 2018,

iv. a termination letter dated 15 October 2018,

v. various documents from the workplace,

b) Text messages from the Applicant between the himself and “Deepack” which show exchanges regarding the disputed reasons for dismissal,

c) Termination letter dated 15 October 2018,

d) Two documents containing Submissions by the Applicant received 28 November 2018,

e) Two character references from the Applicant received 29 November 2018,

f) Outline of Submissions by the Respondent dated 29 November 2018,

g) Recording of conversation between the Applicant and “Roy” and subsequent written explanation of recording from the Applicant received 29 November 2018,

h) An Apprehended Personal Violence Order and related Word document from the Applicant received 29 November 2018.

[13] At the hearing on 6 December 2018:

a) the Applicant represented himself.

b) the Respondent was represented by Geoff Drummond, the Respondent’s Human Resources Manager. He was assisted by Dobrilla Cutler, the Respondent’s State Manager.

Consideration

The reason for the delay

[14] In his Application the Applicant explained the delay as follows:

“On the 15/10/18 I believe I was unfairly dismissed from quad services. I went home and tried doing some research on how to go about [being] five from work, I googled it and for work direct came up so I thought it was fair work, so I rang and told them the situation so she asked me to email her all the information on the list in the email she sent me. So I replied with as much information as I [could] as I only had 21 days when email Vanessa, I thought that I had it in within the 21 days because I thought she was fair work, as she emailed me back advising she wasn’t the right person to email and put [me]’s onto Law access so I rang them explaining what had happened I thought I email[ed] fair work but it wasn’t fair work and now it’s two days out what can I do. She advised me to put in a claim to fair work ombudsman straightaway and explain you thought you emailed the right person because I did lodge it before 21 days but it just was the wrong person. If you read the email that Vanessa had sent me, maybe you can understand why thought it was fair work. So I did that and they rang me back after I lodged the forms refunded my money and explained I should straightaway email fair work commission, so I did that and that’s how this email got forwarded to you. I didn’t know the difference between fair work direct and fair work, I also have never heard.”

[15] Essentially, the Applicant’s reason for delay is confusion as between Fair Work Direct, the Fair Work Ombudsman and the Fair Work Commission.

[16] It is an easy mistake to make. When “Fair Work” is put into the Google search engine the second listing is described as follows,

“Unfair Dismissals Direct | Fair Work Australia | DismissalsDirect.com.au‎

Ad 875 840

Expert Unfair Dismissal Representation Across Australia - Maximum Compensation. Experienced Practitioners. Confidential Assessment. Clear Your Name. No Win No Fee Guarantee. Highlights: Expert Team Available, Available 24/7, Free Unfair Dismissal Assessment Available.”

[17] The listing is marked by the small abbreviation “Ad” which means “advertisement.” The actual listing for the Fair Work Commission requires the person searching the phrase to scroll down to the fifth listing.

[18] At the hearing the Applicant explained,

“PN25 - I Googled that and that came up and the reason why I actually thought it was legit because of all the questions and all the information she wanted for me to send through to her.  That's why I thought it was an actual legit unfair work thing.”

[19] I appreciate that it can be confusing when government agencies have similar names and, further, when private providers pass themselves off as, or have a similar name as, a government agency in an attempt to improve their chances of obtaining clients when recently dismissed employees “Google” phrases such as “unfair dismissal” or the like. I appreciate that his confusion may be increased for people like the applicant who has a medical condition that may affect cognition. 3

[20] However, that confusion is not out of the ordinary course, or unusual or special. Rather it is, unfortunately, regularly, or routinely or normally encountered. Just as ignorance of the timeframe for lodgment is not an exceptional circumstance, 4 neither is a lack of awareness about which agency an application is to be made to. Being the victim of a private provider which uses a similar sounding name to that of the government agency or uses Google Ad-words to increase the “hits” they receive from a Google search is not exceptional circumstance.

[21] Overall, for the reasons given above, this factor weighs against considering whether to exercise the discretion to allow a further period for the Applicant to lodge his Application.

Any action taken by the person to dispute the dismissal

[22] I find that the Applicant took the following action to dispute the dismissal:

a) He undertook an Internet search in relation to unfair dismissal,

b) he approached Dismissals Direct about the termination of his employment,

c) he provided Dismissals Direct with information he thought would assist them to lodge an unfair dismissal application on his behalf,

d) when he learned that Dismissals Direct could not act for him he contacted the Fair Work Ombudsman

e) he attempted to lodge an unfair dismissal application only to learn that he had not served the minimum employment period and was not protected from unfair dismissal,

f) he lodged this General Protections application.

[23] In summary the Applicant was very concerned to contest the dismissal. However, he made a number of errors about who could represent him and what type of claim he could make. Nonetheless, having regard to the efforts made by the Applicant this factor weighs in favour of considering whether to exercise the discretion to allow a further period for the Applicant to lodge his Application.

Prejudice to the employer (including prejudice caused by the delay)

[24] The Respondent conceded that there would be little or no prejudice caused by the delay. 5

[25] I agree that it is difficult to discern any real prejudice to the Respondent beyond the usual prejudice associated with delay. Consequently, this factor is a neutral factor in exercising the discretion to allow a further period for the Applicant to lodge his Application.

The merits of the Application

[26] The Commission notes that, for the purpose of determining whether to grant an extension of time to the Applicant to file his Application, like in relation to unfair dismissal matters, the Commission “should not embark on a detailed consideration of the substantive case.” 6

[27] The Applicant’s case is substantially characterised as an unfair dismissal case. For the reasons explained, because the applicant had not served the minimum employment period he was not protected from unfair dismissal. His application for a remedy in respect of a general protections claim involving dismissal does not clearly articulate the basis of the claim. It is easy to identify the adverse action that occurred in the nature of the dismissal. However, it is difficult to discern the reason for the adverse action and how it is said it was a prohibited reason. At best it seems that the Applicant could argue that he exercised a workplace right in complaining about the performance of his work colleagues (which he says the bulk of the cleaning duties for him) and that he was terminated for exercising that workplace right.

[28] The Respondent submitted that there was an innocent reason for the termination in that it had performance concerns.

[29] In considering whether to grant an extension of time the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Court during the substantive hearing.

[30] For present purposes the Commission, as presently constituted, is satisfied that (although it does not appear to be the strongest general protections claim) the Applicant’s case is not one that is without merit or lacking in any substance. There is a reverse onus in matters such as this and the Respondent would have to establish that it did not terminate the Applicant’s employment because of a prohibited reason.

[31] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his Application.

Fairness as between the person and other persons in a similar position

[32] This factor does not appear to be relevant in the circumstances as there are no persons in a similar position. The parties agreed with the same. 7

Conclusion

[33] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[34] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 8

[35] Suffice to say it is not enough for the Applicant to establish an acceptable explanation for delay, without also establishing that the reason is an exceptional circumstance or part of a number of factors, which when viewed jointly, represents exceptional circumstances.

[36] Having considered:

a) all of the circumstances related to the Application,

b) the evidence filed, and

c) the submissions made by the parties,

for the reasons above, in the exercise of my discretion, I am not satisfied that exceptional circumstances as envisaged by s.366(2) of the Act arise in this case. I am not persuaded to exercise the discretion to allow a further period within which to lodge the Application.

[37] The period for the Applicant to lodge his Application is not extended. The Application is dismissed.

[38] An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

Mr J Cannon for himself.

Mr G Drummond for the Respondent.

Hearing details:

Thursday, 6 December 2018

Printed by authority of the Commonwealth Government Printer

<PR703226>

 1   Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

 2   Wemyss v Mission Australia Employment Services[2010] FWA 1798.

 3   Transcript PN33.

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

 5   Transcript PN51.

 6 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 7   Transcript PN65-68.

 8   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975.