Mr Joshua Ryan v Reece Australia Pty Ltd

[2016] FWC 5220

[2016] FWC 5220

FAIR WORK COMMISSION

DECISION

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

Mr Joshua Ryan
v
Reece Australia Pty Ltd
(C2016/1495)

COMMISSIONER SAUNDERS NEWCASTLE, 2 AUGUST 2016

Application to deal with contraventions involving dismissal – refusal to extend time.

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 Joshua Ryan (the applicant) a further period for his general protections application (the Application) to be made.

The jurisdictional objection

[3] On 1 August 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 called oral evidence from its Human Resources Manager, Ms Nicole Sargeant.

Legislative scheme

[5] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make 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 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. 3 In 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) - reason for the delay

[7] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 4 A dismissal can be communicated orally.5

[8] There must be an acceptable reason for the delay in making the general protections application. 6

[9] The applicant must provide a credible reason for the whole of the period that the application was delayed. 7

[10] 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. 8 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:9

“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

[11] There is no dispute and I am satisfied on the evidence that the applicant was dismissed on 23 May 2016. The applicant was given oral notification of his dismissal on either 10 or 13 May 2016 and the decision was confirmed in writing on 13 May 2016.

[12] The 21 day time period for the applicant to make his general protections application expired on 13 June 2016. 10 Given that the applicant filed his Application on 28 June 2016, the Application was 15 days late.11

[13] In accordance with the principles summarised in paragraphs [7] to [10] 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 13 to 28 June 2016. However, the circumstances from the time of the dismissal (23 May 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.

[14] The applicant relies on the combination of the following reasons for the delay in filing his Application:

(a) A lack of knowledge and confusion on the applicant’s parts concerning how to address his dismissal;

(b) The applicant is young; he only turned 18 years old in February 2016 and his employment with the respondent was his first job;

(c) The applicant contacted several lawyers following his dismissal and says they expressed different views and opinions on how or what the applicant should do in relation to his dismissal. The applicant first made contact with Legal Aid on 6 June 2016. He was not able to get an appointment to see a solicitor at Legal Aid until about 14 June 2016. The Legal Aid solicitor advised the applicant to make an unfair dismissal claim, but also explained to him that there was a chance he would not be able to pursue his unfair dismissal claim because he was employed by the respondent for less than six months. The applicant filed his unfair dismissal application in the Fair Work Commission on 15 June 2016, which was two days after the expiry of the 21 day time limit for either an unfair dismissal application or a general protections application. He was contacted by someone at the Fair Work Commission about 2 days after filing his unfair dismissal application, at which time he was told about the requirement to be employed for a minimum period of time before being eligible to bring an unfair dismissal claim. The applicant subsequently withdrew his unfair dismissal application and had his application fee refunded to him. The applicant made a further appointment with Legal Aid on 22 June 2016, which was the first time the applicant could get in to see Legal Aid following the filing of his unfair dismissal application. The applicant met with Legal Aid on 22 June 2016 and filed his Application on 28 June 2016;

(d) The applicant contacted Epilepsy Australia to see if they had any advice or support; and

(e) The applicant contacted a number of doctors concerning the effects of his ailment (epilepsy). These communications relate to the reason relied on by the respondent to terminate the applicant’s employment, namely the respondent’s belief that the applicant could not undertake the inherent requirements of his job.

[15] From at least 13 May 2016, the applicant was aware that his dismissal would take effect on 23 May 2016. While I have sympathy for the applicant, I am of the view that his reasons for the delay in filing his Application were not out of the ordinary course, unusual, special or uncommon.

[16] 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

[17] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 12

[18] The applicant challenged his dismissal in his discussions with the respondent on 13 May 2016 and by filing his unfair dismissal application, notwithstanding that his unfair dismissal application was not served on the respondent or otherwise brought to its attention. This weighs in favour of a finding that there are exceptional circumstances.

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

[19] Prejudice to the employer will weigh against granting an extension of time. 13 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.14

[20] A long delay gives rise “to a general presumption of prejudice”. 15

[21] 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. 16 No such evidence was adduced by the respondent in this case.

[22] Noting that the delay was 15 days, 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

[23] In Kornicki v Telstra-Network Technology Group 17the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 18

[24] Some evidence on the merits was adduced from the applicant and Ms Sargeant in the extension of time hearing. However, a full hearing on the merits of the general protections claims would involve significantly more evidence from a range of witnesses. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 19 for the purpose of determining whether to grant an extension of time to the applicant to lodge his Application.

[25] I adopt this approach in relation to my consideration of the merits of the Application.

[26] The applicant submits that the respondent discriminated against him because of his disability (epilepsy) and dismissed him because of his temporary absence from work. The respondent denies those allegations and contends that it dismissed the applicant because he could not undertake the inherent requirements of his job.

[27] The outcome of the applicant’s claims will ultimately depend on the resolution of factual disputes between the parties concerning the reasons for the respondent’s actions. Those claims have not been tested in any comprehensive way. Accordingly, I consider this criterion to be neutral.

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

[28] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 20 considered this criterion and said (at [29]) “cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission”.

[29] I am satisfied that the issue of fairness as between the applicant and other persons in a similar position is not a relevant consideration in this matter.

[30] Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[31] Having taken into account the matters referred to in paragraphs [11] to [30] 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.

[32] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive Application is dismissed

COMMISSIONER

Appearances:

Mr J Ryan, on his own behalf.

Ms K Gulle, solicitor, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

August, 1.

 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   Section 366(2) of the Act.

 3 [2011] 203 IR 1

 4   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 at [24].

 5   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.

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

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

 8   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]

 9   [2016] FWCFB 349 at [31]

 10   That is, 21 days from 23 May 2016 (not including 23 May) is 13 June 2016.

 11   That is, 28 June 2016 is 15 days after 13 June 2016.

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

 13   Ibid.

 14   Ibid.

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

 16   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

 17   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 18   Ibid.

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

 20   [2015] FWC 8885

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