Mr Mark Cheng v Cleanevent Pty Ltd

[2010] FWA 3509

[2010] FWA 3509

FAIR WORK AUSTRALIA

DECISION

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

Mr Mark Cheng
v
Cleanevent Pty Ltd
(C2009/11276)

SENIOR DEPUTY PRESIDENT HARRISON SYDNEY, 3 MAY 2010

[1] The applicant has filed an application under s.365 of the Fair Work Act 2009 (the Act). It is an application for Fair Work Australia (FWA or the Tribunal) to deal with a dismissal said to be in contravention of Part 3-1 of the Act. It relates to the applicant’s employment as a cleaner by Cleanevent Australia Pty Ltd (the respondent or Cleanevent). The application has been lodged out of time and accordingly I need to consider the extension of time provisions in s.366 of the Act. Before I turn to that section I should refer to the background to this application.

[2] On 29 September 2009 the applicant commenced proceedings under s.394 of the Act. In his application he indicated that he was notified of his dismissal on 14 September 2009. I here interpose to note that the wage records of Cleanevent show that the last day of work was 13 September and the payment for that day was 20 September. The application records that the dismissal was because the applicant’s supervisor saw him “drinking wine while was cleaning on level I, at the stadium. Drinking liquor is prohibited, when working with Cleanevent". He indicated in his application that he believed his dismissal to be unfair as he had explained that he had a disability, being anxiety, causing him to be “nerve- stricken” on a hot day and that he was “struck with the likelihood of a sore throat, dried, cracked lips” if he didn't drink. He indicated that he had told "the HR Manager" that he believed wine was a potent juice.

[3] The respondent challenged the jurisdiction of FWA to entertain the s.394 application. It submitted that the applicant had not been dismissed from employment as he was a casual employee and that his engagements were not regular and systematic. The respondent indicated that the reason the applicant ceased working for Cleanevent was he had breached the code of conduct by drinking alcohol whilst on duty. It indicated that ample clean and refreshing water was supplied by the respondent and the stadium owners at the site where the applicant was working.

[4] Directions to the parties to file submissions were complied with by the respondent but not the applicant. The jurisdictional objection was listed for hearing before me when the applicant appeared in person and the respondent was represented by Mr Robinson, the General Manager, Human Resources. Prior to the hearing, and with the consent of both parties, I adjourned into conference to discuss the matters raised by the originating application and the employer's jurisdictional objection. Subsequently I recorded in transcript the numerous matters that had been discussed with the parties. Relevantly, for this matter, they included the elements of what the applicant needed to establish to show there had been a dismissal as defined in the Act. I noted that the complaint of the applicant seemed to relate to what he believed to have been a dismissal for an unlawful reason, namely a disability. I had discussed that matter with the parties and the time limits that related to general protections proceedings and the existence of provisions in the Act relating to multiple actions. The applicant did not take the opportunity given to him to obtain advice about these matters.

[5] In a decision I announced in transcript I upheld the respondent's jurisdictional challenge and ruled that the applicant’s employment as a casual cleaner was not on a regular and systematic basis nor could it be said that he had a reasonable expectation of continuing employment on a regular and systematic basis. The application made under s.394 of the Act was dismissed.

[6] It was not until some 21 days after the dismissal of s.394 application that the applicant commenced proceedings under s.365 of the Act. That application was out of time. The applicant did not identify the date of his dismissal in this application but I was aware from the earlier proceedings that the last engagement was on 13 September 2009 and his pay for that day was made on 20 September. In either case this second application had been filed beyond the 60 day time limit provided for in the Act. The alleged contravention was said to be that the applicant was dismissed contrary to the provisions of the Disability Discrimination Act 1992. The description of the alleged contravention largely repeated what was contained in the s.394 application but a few additional comments were included. The applicant wrote that “water was only given at 12noon” and his anxiety had led him to believe it was necessary to drink and he was anxious about the dryness of his lips and throat.

[7] The application was listed for a conference before me. The parties accepted that I would take into account the documentation and matters discussed in the s.394 application. This s.365 application could not be resolved in conference and, in light of the failure of the applicant to comply with certain procedural matters, a further opportunity was given to him and to the respondent to file submissions. Additionally, I required the parties to address the provisions of s.366 of the Act noting in an email to them that although the applicant had not identified the date upon which he asserted he had been dismissed it appeared from earlier proceedings that he may well be asserting that it was 24 September. That would be the latest possible date from which time would run. As mentioned earlier it seems more likely that the last day of engagement was 13 September and payment for that was made on 20 September.

[8] The parties were also informed that I intended to deal with any application for an extension of time on the papers without further hearing. Neither party objected to that occurring.

[9] Section 366 of the Act is in the following terms:

“366 TIME FOR APPLICATION

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

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA 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] As is apparent from the above extract there are specific matters that must be taken into account when considering if I am satisfied there are exceptional circumstances. The considerations relevant to whether I should exercise my discretion to extend time are similar to those applying in relation to applications made in s.394 of the Act. Recently Vice President Lawler in Johnson and Joy Manufacturing Co. Pty Ltd t/as Joy Mining Machinery 1 referred to the approach that he would take in relation to what is meant by “exceptional circumstances”. He referred to an extract from a decision of the Federal Court of Australia in Maan and Minister for Immigration and Citizenship2 where the Court held that:

“Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

“We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”

[11] I turn to each of the considerations referred to in s.366. The applicant did not give any explanation for his delay or any reason for it. In light of the background to this matter the applicant needed to seriously address this consideration. He knew well that time limits applied and was advised on numerous occasions to take advice about proceedings that may be open to him under the Act.

[12] I accept that from an early stage the applicant challenged what he asserted was a dismissal and the unfairness of it.

[13] The employer points to the prejudice it has suffered. Although it did not put its submissions on the basis of the prejudice caused by the delay it did point to its costs to respond to the first proceedings which had no reasonable prospect of success and in respect of which the applicant failed to comply with directions. In these proceedings the employer points to the applicant being preoccupied with what he wants to obtain out of his proceedings rather than attempting to address the requirements of the Act. The employer submits it should not be put to any further expense in responding to the applicant’s complaints. I agree.

[14] In so far as the merits of the application are concerned the applicant did not identify any particular section under Part 3-1 of the Act which was said to have been contravened. He simply asserts that he has been discriminated against under the Disability Discrimination Act 1992. It is not at all clear that the circumstances which led to him not being offered any casual engagements after 13 September amount to a dismissal in terms of s.365(a) of the Act. Assuming there was a dismissal there is no evidence at all to suggest that the employer’s motivation in whole or in part was the applicant’s anxiety or any other disability. The only evidence is that the applicant was in breach of the employer’s requirement that employees did not consume alcohol whilst on duty. The applicant accepts he did consume alcohol. All he says in his defence is that he believed alcohol was a more potent form of grape juice.

[15] Nothing was said by the parties in relation to considerations raised by s.366(2)(e) in relation to fairness as between the applicant and other persons in a like position.

[16] The applicant did not address any additional considerations as to why I should be persuaded there were exceptional circumstances such as to justify an extension of time. In fact the circumstances of this case, in my opinion, all point in the other direction. There is nothing about the circumstances leading to the applicant finishing work on 13 September and thereafter not being provided with any further work that could be said to be exceptional. Significant time was spent with the applicant in conference and hearings in the s.394 application and the conference in this application identifying time limits in the Act applying to particular applications. Similarly ample time was given to the applicant to allow him to explain what the nature of his complaint was and whether it was one which could properly form the basis of a s.365 application. I decline to exercise my discretion to extend time the time for filing of the s.365 application. The application is dismissed

SENIOR DEPUTY PRESIDENT

Appearances:

Mr M Cheng, Applicant

Mr M Robinson, for Cleanevent Pty Ltd

 1   [2010] FWA 1394

 2   [2009] FCAFB 150

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