Mr Michael Shanahan v Great Barrier Reef Marine Park Authority

[2014] FWC 3098

[2014] FWC 3098

The attached document replaces the document previously issued with the above code on 16 May 2014

The heading ‘LEGISTLATION’ is deleted and replaced with ‘LEGISLATION’.

Typographical errors have also been corrected throughout the document.

Camilla Moses

Associate to Commissioner Simpson

Dated 16 May 2014

[2014] FWC 3098

FAIR WORK COMMISSION

DECISION

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

Mr Michael Shanahan
v
Great Barrier Reef Marine Park Authority
(C2013/1660)

COMMISSIONER SIMPSON BRISBANE, 16 MAY 2014

Application to deal with contraventions involving dismissal - Out of time objection - Factors under s.366(2) considered - Not satisfied of exceptional circumstances - Application dismissed.

INTRODUCTION

[1] On 20 October 2013 Michael Shanahan (“the applicant”) made a general protections application under Section 365 of the Fair Work Act 2009 (“the Act”) to deal with contraventions involving dismissal. His employer was the Great Barrier Reef Marine Park Authority (“the respondent”).

[2] The respondent raised a jurisdictional objection to the application on the basis that it had been filed outside the statutory time limited provided in the Act as the termination of the applicant’s employment took effect on 27 September 2013 and the application was filed on 20 October 2013. Therefore the application was two days out of time.

[3] Directions were issued requiring the applicant and respondent to file submissions on the extension of time jurisdictional objection, which was subsequently done. A hearing was conducted on 12 May 2014. The applicant provided a short statement which was admitted uncontested. 1

LEGISLATION

[4] Section 365 of the Act provides as follows:

365 Application for the FWC to deal with a dismissal dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

[5] The time limit for general protections applications is dealt with in s.366 of the Act, which provides as follows:

366 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).

(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.

CONSIDERATION

[6] The applicant commenced employment with the respondent on 5 January 2010 and was engaged on 12 separate fixed term contracts over a 45 month period. The applicant said in November 2011 he made a formal complaint about a safety matter.

[7] The applicant maintained within a short period of time after his complaint a request was made by a manager to upgrade the position he occupied and it was subsequently advertised, he applied, was interviewed and was unsuccessful.

[8] The applicant lodged an internal complaint about the selection process, which was passed to an external investigator. The applicant said he subsequently discovered the external investigator was at the time employed by the Australian Public Service Commission.

[9] The applicant said after exhausting internal appeal processes he lodged a formal complaint with the Office of Merit Protection Commissioner (OMPC) on 14 August 2013.

[10] The applicant said 27 September was his last day of employment with the respondent. The applicant said that on 16 October he received a phone call from the OMPC informing him that his application had lapsed given that he was no longer employed by the respondent.

[11] The applicant said until he received the phone call he was of the view the OMPC was dealing with his claim.

[12] The applicant said he contacted an industrial advocate on Friday 18 October who said he was out of town on that day but would return to Townsville later that night and would meet with him the next day which was Saturday 19 October. It is common ground that Friday 18 October was the last day on which an application could be filed within time and as it was filed on Sunday 20 October it was 2 days out of time.

[13] The applicant said he meet the industrial advocate on Saturday 19 October, prepared an outline and the applicant agreed to send the document to the Fair Work Commission that day.

[14] The applicant said that he had problems with his computer that day as he had only purchased a new computer the previous Wednesday and attempted to set it up on Friday 18 October but was having problems with the internet connection with further difficulties on the Saturday. It was not until Sunday morning 20 October that the applicant was able to submit his application.

[15] The respondent submits the applicant could have filed his general protections application at any time after 27 September 2013. Further the applicant knew or ought reasonably to have known that his complaint to the OMPC lapsed upon his ceasing to be an employee, and ignorance of this is no excuse.

[16] The respondent also said the complaint made to the OMPC did not deal with the purported ‘dismissal’, it dealt with a complaint made well before his employment with the respondent ended.

[17] The respondent said there is no adequate explanation for the failure to make an application on 16, 17 or 18 October when on the applicants own evidence he knew the OMPC application had lapsed.

[18] The respondent says the applicant has provided no particulars of his apparent failed attempt on Saturday 17 October, and why he could not have used another device such as a smart phone or a computer belonging to a friend.

[19] The respondent addressed the applicant’s reasons for delay at clauses 3.3 to 3.12 of its written submission. I do not intend to summarise all of those submissions but agree with those submissions in that the statement and submissions of the applicant have not satisfied me there are exceptional circumstances explaining why the application could not have been filed within time.

[20] Further the respondent said the applicant took no steps to dispute his dismissal within the 21 days. I agree the earlier OMPC matter did not deal with his alleged dismissal, it was directed to a separate matter and can’t be relied upon to argue it was contesting his alleged dismissal. There is no particular prejudice to the respondent. Section 366(2)(e) is not relevant in this case.

[21] In terms of the merits of the matter an issue arises given that the respondent draws attention to the definition of dismissed under s.386(2)(a) of the Act which reads as follows:

“(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; ...”

[22] It appears clear from the material that the applicant was employed pursuant to a series of fixed-term contracts, with his final contract expiring on 27 September 2013 in the ordinary course.

[23] This issue does not pertain to the applicants argument that the respondent was motivated to take adverse action against him because he made a complaint, but it does go to what I see as the limited prospects of the application as it has been brought because it is apparent this claim does not involve a dismissal of an employee in the sense defined at s.386 of the Act. Because the application would appear to have limited prospects for this reason, s.366(2)(d) counts against granting an extension.

[24] Having taken into account the matters to be considered in s.366 (2) I am not satisfied exceptional circumstances exist justifying an extension of time. On that basis the application must be dismissed.

[25] Having said that, given my observations above it would seem it is open to the applicant to bring an application under s.372 as the alleged adverse action appears to relate to matters prior to the ending of his employment, or otherwise to the applicants prospective employment with the respondent.

COMMISSIONER

Appearances:

Mr J O’Donnell, for the applicant

Ms V Hepburn, for the respondent

Hearing details:

12 May

Brisbane

2014

 1   Exhibit 1, Statement of Michael Shanahan dated 19 February 2014.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR550468>