Mr Mark Quilty v Dann Event Hire
[2018] FWC 4858
•27 AUGUST 2018
| [2018] FWC 4858 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Mark Quilty
v
Dann Event Hire
(C2018/3171)
| COMMISSIONER RIORDAN | SYDNEY, 27 AUGUST 2018 |
Application to deal with contraventions involving dismissal – extension of time.
Mr Mark Quilty (the Applicant) was employed by Dann Event Hire (the Respondent) between 31 October 2017 and 12 April 2018. The Applicant filed his General Protections application on 8 June 2018.
The Fair Work Act, 2009 (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].
366(1) Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
The Applicant’s application has been filed 36 days outside of the statutory time limit.
I note that the Applicant had filed and withdrawn an unfair dismissal application some 3 days earlier.
The Hearing was conducted by telephone on 14 August 2018.
Section 366(2) of the Act states that the Commission may allow for an extension of time for an Applicant to lodge their application if the Commission is satisfied that there exceptional circumstances in existence in relation to the matter, taking into account the following criteria;
366(2) Time for application
(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.
The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full bench said:
“[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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”[3]
Consideration
Section 366(2)(a) - reason for delay
The Applicant advised that he was suffering from a workplace injury which had resulted in ongoing pain in his lower back and leg. This injury has required regular medical treatment including physiotherapy and hydrotherapy.
The Applicant advised that he is 57 years old, is not technologically savvy and has relied upon his son for advice and assistance in this matter. The Applicant claims that he was unaware of the adverse action and general protection provisions of the Act. Further, that the completed and lodged general protections application were a direct result of the assistance from his son, whom had been away when the Applicant was terminated. I note that the Applicant’s son lives 80 minutes drive away from the Applicant.
The Respondent submitted that the Applicant has not provided any credible reason why the Commission should grant an extension of time. The Respondent argued that “ignorance” of the timeframe, or the statutory provision, does not justify an extension of time.
The Respondent pointed to the fact that the Applicant lodged a workers compensation claim within the statutory timeframe as proof that the Applicant had the ability to complete and file appropriate paperwork.
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters[4], a Full Bench of the Commission held;
“[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.”
I sympathise with the Applicant in relation to his ongoing pain and accept that his treatment program provides a valid reason for a proportion of the delay in filing his application. However, I note that the Applicant did not file this application or his unfair dismissal application until after his workers compensation claim had been rejected.
I have sought further submissions since the Hearing in relation to the Applicant’s computer skills or access to the internet. At a time when there are no longer any phone books, the question arises as to how does an aggrieved but technology challenged employee find out about their rights under the Fair Work Act without using the internet. Based on the recent submissions, whilst acknowledging the Applicant’s limited computer skills, I am confident that the Applicant could have performed a google search, if not at home, then at the local library. The Applicant’s partner may also have been able to assist in this endeavour.
I have taken these issues into account.
Section 366(2)(b) – any action taken by the person to dispute the dismissal
The Applicant submitted that he was struggling to comprehend his options after he had been dismissed due to the shock associated with his termination. In my view, the Applicant was waiting to see if his workers compensation claim was accepted before seeking any other alternative action. Unfortunately, the Applicant did not seek advice from a lawyer, a paid agent, a union or the Commission’s helpline. This inactivity was unfortunate. However, I note that the Applicant did submit an unfair dismissal application and subsequently this general protections application, thereby showing an intention to dispute his termination.
I have taken this into account.
Section 366(2)(c) – prejudice to the employer
The obligation rests with the Respondent to prove that it will suffer prejudice if an extension of time is granted. The Respondent submitted that it has already been required to spend a substantial amount of time and money defending, what it claims, to be a vexatious claim by the Applicant. Further, the Respondent argued that if the Applicant succeeds in this matter, then the Respondent will suffer further economic hardship in defending the case.
These submissions do not demonstrate prejudice. These costs would have been the same and been borne by the Respondent if the Applicant had filed his application within the statutory timeframe.
I have taken this into account.
Section 366(2)(d) – Merits of the Application
In the matter of Kornicki v Telstra Network Technology Group[5] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission held:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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.”[6]
It was held in Kyvelos v Champion Sock Pty Ltd[7], that the Commission cannot make any finding on contested matters without hearing evidence, which is typically not called at this stage of the proceedings. The Full Bench went on to say that:
“The Commission should not embark on a detailed consideration of the substantive case.”[8]
I have taken into account that no evidence or cross examination of witnesses has occurred in this proceeding.
Section 366(2)(e) - fairness as between the person and other persons in a like position
I am not satisfied that the issue of fairness between the Applicant and other persons in a similar position is a relevant consideration in this matter.
I have taken this into account.
Conclusion
I have considered all of the circumstances surrounding the Applicant’s termination and taken into account all of the submissions from the parties. I am not satisfied that there are exceptional circumstances to justify the Commission granting an extension of time to allow the Applicant to submit his application.
The primary reason relied upon by the Applicant for the 36 day delay in filing his application was his ignorance of the statute. The Full Bench in Nulty ruled that this excuse does not provide an exceptional circumstance. The Applicant could provide no evidence of any enquiries that he had made to dispute his termination within the statutory timeframe.
The application for an extension of time is refused.
The Applicant’s substantive general protections application is dismissed.
COMMISSIONER
<PR610122>
[1] Section 366(1)(a) of the Act. Note that the 21 days for lodgement 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] [2011] 203 IR 1
[3] Ibid at [14].
[4][2018] FWCFB 901
[5] Print P3168, 22 July 1197 per Ross VP, Watson SDP and Gay C
[6] Ibid.
[7] Kyvelos v Champion Socks Pty Ltd, Print T2421, Print T2421
[8] Ibid.
Printed by authority of the Commonwealth Government Printer
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