Mr Jose Midon v JD Taylor Family Trust T/A Its Management

[2017] FWC 364

[2017] FWC 364

FAIR WORK COMMISSION

DECISION

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

Mr Jose Midon
v
JD Taylor Family Trust T/A ITS Management
(C2016/7677)

COMMISSIONER SAUNDERS NEWCASTLE, 23 JANUARY 2017

Application to deal with contraventions involving dismissal - application to extend time 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 Jose Midon (the applicant) a further period for his general protections application (the Application) to be made.

The Hearing

[3] On 20 January 2017, 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 called evidence from Ms Patricia Cusack, Call Centre Manager.

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 8 December 2016.

[13] The 21 day time period for the applicant to make his Application expired on 29 December 2016. 12 Given that the applicant filed his Application on 30 December 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 29 December 2016 to 30 December 2016. However, the circumstances from the time of the dismissal (8 December 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] On 8 December 2016, the Commission sent an email to the applicant at 5:07pm in the following terms:

“Hi Jose,

In your case, you may be able to seek remedy through an unfair dismissal application (F2) or a general protections application involving dismissal (F8).  Hopefully you already have received your legal advice on which is best to utilise.  The forms can be obtained via the following link.  I have also attached the forms in this e-mail too.

When you click on either the Word or PDF version of the F2 (Unfair Dismissal) or F8 (General Protections involving dismissal), you will note that the covering pages have their own respective hyperlinks that give further information on our website.  In addition, the Unfair Dismissal Benchbook and the General Protection Benchbook gives thorough information and previous case studies to assist you with your research.

Please note, the application will cost $69.60 and must be submitted within 21 calendar days of your dismissal from work.  If paying the application fee will cause hardship, you will need to complete the waiver form found on the first hyperlink in this e-mail (F80).

To conclude, please submit your completed application to [email protected] within 21-calendar days.”

[16] On 30 December 2016 at 12:15am, the applicant lodged his application with the Commission by email:

“To Whom It May Concern,

Please see attached my application regarding my dismissal from my recent job as well as the fee waiver application.

Should there be any issues or queries, please do not hesitate to contact me directly.

Kind regards,
Jose Midon”

[17] The applicant lodged his application 15 minutes outside of the time frame prescribed by s.366(1)(a) of the Act, therefore making the Application one day late.

[18] In his outline of argument, the applicant explained the reasons for his delay as follows:

“…I was unable to lodge the application due to personal matters. I suffer from a high level anxiety and have been receiving treatment. My situation has worsened over time especially due to the present circumstances.

I have attached to this email, a referral letter to see a therapist provided to me by my GP on the 14^th of December.”

[19] Attached to the applicant’s outline of argument was a letter from his general practitioner, Dr Bahgat Wassif, referring the applicant to see a psychologist. A Mental Health Care Plan was attached to that letter. However, no medical evidence was adduced by or on behalf of the applicant as to the extent of his medical condition or what impact it had on his capacity or ability to complete and lodge his Application within the 21 day time period provided for in the Act.

[20] The applicant made oral submissions to the effect that he had been suffering from excessive anxiety which prevented him from functioning properly on a day to day basis during the relevant period. The applicant further submitted that his dismissal had impacted on his personal life and the mental health of both him and his wife.

[21] The applicant gave oral evidence that he was aware, as of 8 December 2016, that he was required to lodge his Application within 21 days from the date of his dismissal. However, no specific evidence was adduced by the applicant to explain why he did not lodge, or could not have lodged, his Application 15 minutes earlier, which would have been within time.

[22] The short delay in filing the Application is a relevant consideration, but it does not, without more, establish the existence of exceptional circumstances or otherwise justify the exercise of discretion to grant an extension of time.

[23] The evidence led by the applicant is not sufficient to support a finding that he was incapacitated, or otherwise unable, to file his Application in the 21 days following his dismissal.

[24] While I have sympathy for the applicant, the matters he relies on, as summarised in paragraphs [15] to [21] above, are not, either viewed in isolation or considered together, out of the ordinary course, unusual, special or uncommon. I find that this factor (s.366(2)(a)) weighs against granting the applicant an extension of time.

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

[25] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 14

[26] During the termination meeting on 8 December 2016, the applicant questioned the dismissal and advised the respondent that he felt he was being treated unfairly. By doing so the applicant took action to dispute his dismissal.

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

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

[28] Prejudice to the employer will weigh against granting an extension of time. 15 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.16

[29] A long delay gives rise “to a general presumption of prejudice”. 17

[30] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 18 No such evidence was adduced by the respondent in this case.

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

[32] 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

[33] The applicant contends that his employment was terminated as a result of him exercising a workplace right, namely the applicant was recovering from an injury to his right hand and made requests for frequent breaks and for particular equipment in order for him to complete his work whilst recovering from his injury. The applicant contends that the respondent has contravened sections 340, 343, 344, 351 and 352 of the Act in various ways.

[34] The respondent denies the applicant’s contention that it has contravened any provision in the Act and submits that the applicant was dismissed as a result of unacceptable conduct, including taking unauthorised breaks and poor performance.

[35] The resolution of the contested factual questions concerning the reason(s) for the respondent’s actions, including its decision to dismiss 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

[36] 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.”

[37] 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

[38] Having taken into account the matters referred to in paragraphs [12] to [37] 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.

[39] 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:

Mr J Midon on his own behalf;

Mr M Byrnes, solicitor from Clayton Utz, on behalf of the respondent.

Hearing details:

2017.

Newcastle:

January, 20.

 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 8 December (not including 8 December) is 29 December 2016.

 13   That is, 30 December 2016 is one day after 29 December 2016.

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

 15   Ibid.

 16   Ibid.

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

 18   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February

2003) PR927201 at [16]

 19   [2016] FWCFB 6963

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