Mr Kelvin Bates v The Salvation Army Victoria Property Trust as trustee for the Salvation Army Victoria Social Work

[2016] FWC 3723

[2016] FWC 3723

FAIR WORK COMMISSION

DECISION

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

Mr Kelvin Bates
v
The Salvation Army Victoria Property Trust as trustee for the Salvation Army Victoria Social Work
(C2016/3753)

COMMISSIONER SAUNDERS NEWCASTLE, 9 JUNE 2016

Application to deal with a general protections application involving a 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 Kelvin Bates (the applicant) a further period for his general protections application (the Application) to be made.

The jurisdictional objection

[3] On 8 June 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant gave oral evidence and tendered some documents in support of his Application. The respondent also called oral evidence from its Human Resources Consultant, Ms Amy Rintoul, and tendered some documents.

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 13 April 2016.

[12] The 21 day time period for the applicant to make his general protections application expired on 4 May 2016. 10 Given that the applicant completed his Application on 13 May 2016 and it was lodged with the Commission on the same date, the Application was made nine 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 4 to 13 May 2016. However, the circumstances from the time of the dismissal (13 April 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) The applicant was not aware of there being any time frame for him to make a general protections application until he rang the Fair Work Ombudsman on 10 May 2016. At that time he was told that he had 21 days to make an application and he was already 6 days out of time. The applicant was referred to an organisation, who referred him to Legal Aid, who then referred him to the Law Institute of Victoria. As a consequence of his contact with the Law Institute of Victoria, the applicant obtained an appointment for consultation with a solicitor at O’Neill Behan & Associates on 13 May 2016 and his application was lodged with the Commission within two hours of that meeting;

(b) The applicant gave evidence that it took him two or three weeks to get over the psychological shock of losing his job, and his dismissal increased the stress that he was already experiencing at the time. The applicant says that he was not in a “clear thinking state of mind” following his dismissal. He also relies on the fact that he had been seeing a workplace counsellor (psychologist) since November 2015 in relation to the stress caused by the issues he was facing in the workplace, and his General Practitioner diagnosed him in about late 2015 with high blood pressure due to the stress he experienced in the workplace;

(c) The applicant gave evidence that he had a motor vehicle and mobile telephone supplied by the respondent for his use during his employment. The applicant had to purchase a motor vehicle and arrange to buy a mobile telephone following his dismissal. Those tasks took the applicant a considerable amount of time. The respondent gave the applicant a hire vehicle to use for two weeks following his dismissal. The applicant used the hire vehicle to search for a motor vehicle to purchase for himself. The applicant took about five to six hours a day for many days during the two or three weeks immediately following his dismissal looking for a motor vehicle to purchase; and

(d) The applicant was dismissed abruptly, in that his employment was terminated one day after he was told that his position had been redundant. He was not consulted about the redundancy of his position.

[15] Ignorance of the timeframe for making a general protections application is not an exceptional circumstance. 12

[16] The applicant did not tender a medical certificate or report in relation to his medical condition or how the applicant’s medical condition prevented him from being able to make his Application within the 21 day time period, notwithstanding that a letter from the Commission dated 25 May 2016 notified the applicant that he should supply a medical certificate or report if he wanted the Commission to take into consideration a medical condition as part of his explanation for not making his Application within the 21 day time period.

[17] It is common for employees to suffer shock and trauma as a result of their dismissal from employment. 13 While I have sympathy for the applicant, the evidence in this case concerning the applicant’s level of incapacity in the 30 days following his dismissal is insufficient, in my view, whether considered alone or in combination with the other reasons relied on by the applicant, to give rise to a finding that his difficulties were out of the ordinary course, unusual, special or uncommon.

[18] 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

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

[20] When he was notified of his dismissal on 12 April 2016, the applicant complained about what he perceived to be his “sacking” to Lieutenant Colonel Stevens. The respondent was clearly put on notice that the applicant was challenging the legitimacy of his dismissal. 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)

[21] 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

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

[23] 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.

[24] Noting that the delay was nine 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

[25] In Kornicki v Telstra-Network Technology Group 19the 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.” 20

[26] Some evidence on the merits was adduced from the applicant and Ms Rintoul 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” 21 for the purpose of determining whether to grant an extension of time to the applicant to lodge his Application.

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

[28] The applicant submits that he was dismissed because he exercised his workplace right to make a complaint about his manager. In support of the alleged causal connection between his complaint and his dismissal, the applicant relies, inter alia, on the fact that (a) the same person investigated (at the same time) his complaints about his manager and the alleged inefficiencies in the workplace that gave rise to the decision to restructure the workplace and make the applicant’s position redundant, (b) he received written notice of the outcome of his complaint on the same day that he received written notice of the termination of his employment on the ground of redundancy, (c) he was not consulted about the redundancy of his position, (d) his employment was terminated the day after his position was made redundant, notwithstanding he had requested to continue working through his notice period to complete or undertake work on various projects on which he had been working, (d) no efforts were made to find him an alternative position or to redeploy him, (e) the proposals the applicant put forward concerning the potential redundancy of his position were conditional on there being an “agreed outcome” and his continued engagement by the respondent as a contractor, neither of which happened. I accept that this evidence supports the applicant’s claim that he was dismissed because he made his complaint. The respondent denies those allegations and says that it terminated the applicant’s employment on the ground of a genuine redundancy. The respondent also points to the fact that the applicant informed the respondent that his workload had diminished and he requested on a number of occasions, including in writing, that his position be made redundant.

[29] I am satisfied that the applicant’s substantive general protections claims are not without merit. However, the outcome of those claims will 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

[30] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 22 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”.

[31] 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.

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

Conclusion

[33] Having taken into account the matters referred to in paragraphs [11] to [32] 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.

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

COMMISSIONER

Appearances:

Mr R Millar, of counsel, along with Mr A Triaca, solicitor, for the applicant.

Ms N Drakeford, solicitor, for the respondent.

Hearing details:

2016.

Newcastle:

June, 8.

 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 13 April 2016 (not including 13 April) is 4 May 2016.

 11   That is, 13 May 2016 is 9 days after 4 May 2016.

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

 13   Rose v BMD Constructions Pty Ltd[2011] FWA 673 at [10]

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

 20   Ibid.

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

 22   [2015] FWC 8885

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