Mr Paul Harvey v Alchemy Construct Pty Ltd
[2019] FWC 3231
•9 MAY 2019
| [2019] FWC 3231 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Paul Harvey
v
Alchemy Construct Pty Ltd
(C2019/1455)
DEPUTY PRESIDENT YOUNG | MELBOURNE, 9 MAY 2019 |
Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.
[1] This decision concerns an application by Mr Paul Harvey under s 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).
[2] The date that Mr Harvey’s dismissal took effect was 29 January 2019. His application was not lodged until 5 March 2019. The period of 21 days ended at midnight on 19 February 2019 and the application was therefore lodged 14 days out of time. Mr Harvey seeks that the Commission allow a further period of time for the application to be made. The Respondent company opposes the grant of an extension of time.
[3] On 21 March 2019, I issued directions for the parties to file materials and listed the matter for hearing at 12.00 pm on 24 April 2019. Materials were filed by the parties in accordance with those directions.
[4] Prior to the hearing there were numerous communications between the Commission and the parties, specifically Mr Harvey. The key communications are summarised as follows.
[5] On 10 April 2019 Mr Harvey wrote to my chambers requesting he attend the hearing on 24 April 2019 by telephone due to “new work commitments”. However, on 15 April 2019 Mr Harvey then sent a further email stating that he could not now attend the hearing, either by telephone or in person, due to a training course he was to attend in relation to his new employment and requested that the hearing be adjourned. I did not consider that Mr Harvey obtaining new employment and having to attend to the commitments of that employment, provided a sufficient basis for the granting of an adjournment. On 16 April 2019 my associate wrote to Mr Harvey advising him that I had not granted the adjournment. On 17 April 2019 Mr Harvey requested I reconsider my refusal to grant an adjournment. Mr Harvey did not provide any additional information or advance any additional reasons for my further consideration. In light of that, later that day my associate wrote to Mr Harvey and confirmed that the hearing would proceed as listed on 24 April 2019.
[6] Later on 17 April 2019 Mr Harvey again wrote to my chambers, objecting to the refusal to adjourn the matter and reiterating again that he could not attend the hearing due to his new work commitments. Later that day, Mr Harvey again wrote to my chambers requesting that I recuse myself from hearing his extension of time application as he considered I had a “conflict of interest”, on the ground that the firm I had previously been engaged by had acted for the company. I understood this to be a submission that I ought disqualify myself from hearing the matter on the ground of apprehended bias.
[7] In Ebner v Official Trustee in Bankruptcy the High Court described the test for apprehended biasas:
Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge was required to decide. 1
[8] On the basis asserted by Mr Harvey, I did not consider that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to Mr Harvey’s request for an adjournment or to the determination of Mr Harvey’s application for an extension of time. On that basis, I declined to disqualify myself and provided Mr Harvey with that decision.
[9] On 18 April 2019 Mr Harvey again wrote to my chambers, restating that he would not attend the hearing on 24 April 2019 and disagreeing with my decision not to disqualify myself. His email also included a statement which I understood to be, in effect, a request that the matter be determined on the papers. Following the filing of material by the company, I considered Mr Harvey’s request to determine the matter on the papers and determined that in all circumstances, and with particular reference to the absence of sworn evidence before the Commission, I considered it appropriate to proceed to hearing. On 23 April 2019 I provided Mr Harvey with that decision. I also advised Mr Harvey that the matter remained listed for hearing on 24 April 2019 and that should he choose not to attend I proposed to determine the matter on the material before the Commission at that time.
[10] On 23 April 2019 I wrote to the parties reminding them that the matter would proceed as listed on 24 April 2019 and that if a party did not attend, I proposed to determine the matter on the basis of the material before the Commission. On the evening of 23 April 2019 Mr Harvey again wrote to my chambers confirming he would not attend the hearing the following day but stating that he had a break for lunch at 12pm and he “could perhaps take a phone call during the hearing for about half an hour.”
[11] On 24 April 2019 I conducted the proceeding by way of determinative conference. Mr Harvey did not attend the conference. Mr Scougall of Australian Industry Group appeared for the company and Mr Jamie Nicolson, Director, gave evidence on behalf of the company.
[12] In light of the fact that Mr Harvey had said he might be available by telephone at 12pm (being the time at which the proceeding was listed), my associate telephoned Mr Harvey at the commencement of the proceeding. Mr Harvey did not answer. My associate again telephoned Mr Harvey during the course of the conference, and within the half hour period Mr Harvey had indicated he might be available, however Mr Harvey again failed to answer. On each occasion a voicemail message was left for Mr Harvey. Accordingly, the conference proceeded in the absence of Mr Harvey.
Consideration
[13] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant. 2
[14] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) 3, where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.4
[15] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:
(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.”
Reason for the delay
[16] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable 5 or a reasonable explanation.6 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd the Full Bench noted that the absence of an explanation for any part of the delay, will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all the circumstances must be considered.7 The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.8
[17] In his material, Mr Harvey stated that the delay in making his application was due to him seeking advice from “an experienced professional” regarding the termination of his employment and, on the basis of that advice, attempting to negotiate a settlement directly with Mr Nicolson, to avoid commencing proceedings in the Commission. 9 I note that Mr Harvey also states that “unfortunately the process to date has taken longer than 21 Calendar (sic) days.”10
[18] On 8 February 2019, Mr Harvey wrote to Mr Nicolson via email disputing his dismissal and proposing a settlement to the company. That email includes statements by Mr Harvey to the effect that he had sought advice regarding his dismissal and he considered his dismissal to constitute adverse action taken against him because he had exercised a workplace right. Such action was stated to be in breach of section 340 of the Act. 11 The workplace rights identified by Mr Harvey upon which the adverse action was asserted to have been taken included, but were not limited to, exercising responsibilities under the Occupational Health and Safety Act 2004 (Vic) and “making decisions within my scope as a Construction Manager”.12 Mr Harvey requested Mr Nicolson respond to his settlement proposal “at your earliest convenience.”13
[19] Mr Harvey did not receive a response from Mr Nicolson and on 18 February 2018 sent a further email requesting a response to his settlement proposal by midday, 19 February 2019. 14 That email included the following statement:
“Unfortunately due to my personal circumstances, if you are unwilling to negotiate a suitable settlement, I will have to pursue that matter further.”
[20] Mr Harvey did not receive a response from Mr Nicolson to this further email. 15 Mr Harvey did not lodge the application for a further 14 days following the expiration of the time provided to Mr Nicolson to respond.
[21] In the application, in addition to the above, Mr Harvey stated “Furthermore my Advisor in this matter has been intermittently ill over the past couple of weeks making it difficult to finalise this application in a timely manner.” 16
[22] In my opinion, Mr Harvey has not established an acceptable or reasonable explanation for the delay in lodging the application. The email communications from Mr Harvey to Mr Nicolson in the period following his dismissal, clearly indicate that prior to the 21 day period expiring Mr Harvey sought advice as to his rights regarding his dismissal, was aware of his right to make an application under section 365 of the Act and, indeed, foreshadowed such action being taken if Mr Nicolson was not agreeable to resolving the matter by agreement. Mr Harvey requested a response from Mr Nicolson to his further email of 18 February 2019 by midday on 19 February 2019, failing which Mr Harvey stated he would pursue the matter further. Mr Harvey had until midnight on 19 February 2019 to lodge the application.
[23] I accept that in the period following his dismissal, Mr Harvey genuinely sought to negotiate a settlement with Mr Nicolson. However, Mr Harvey knew, prior to the 21 day period expiring, that he had been unable to do so. Had Mr Harvey lodged an application later on 19 February 2019, following Mr Nicolson not responding by midday that day, the application would have been made within the 21 day period provided under the Act. Mr Harvey did not lodge the application for a further 14 days.
[24] In the application Mr Harvey contends that his advisor had been intermittently ill, impeding his ability to finalise the application in a timely manner. 17 This contention was not raised or included in Mr Harvey’s Outline of Argument, Mr Harvey made no submissions in relation to it, nor did he provide any evidence in support of it. Notwithstanding that, given Mr Harvey’s email to Mr Nicolson on 8 February 2019, which articulates Mr Harvey’s allegation of breach of section 340 of the Act and the asserted bases for it, it is difficult to see how the intermittent illness of Mr Harvey’s advisor could have affected his ability to lodge the application within time.
[25] Accordingly, I do not consider that Mr Harvey has provided an acceptable or reasonable explanation for the delay in lodging the application. This weighs against the granting of an extension of time.
Action taken by the person to dispute the dismissal
[26] In his material, Mr Harvey stated that his employment was terminated by Mr Nicolson in a meeting on 29 January 2019 at the employer’s premises. He was verbally advised that his employment was terminated and was then provided with written confirmation of this, to which he replied “no problem”. 18
[27] Although the Applicant did not dispute his dismissal at the meeting on 29 January 2019, as set out above, he did dispute his dismissal subsequently on 8 February 2019 and then again on 18 February 2019. This weighs in favour of granting an extension of time.
Prejudice to the employer
[28] I cannot identify any particular prejudice that would accrue to the company were an extension of time to be granted and the company properly accepted that no particular prejudice arose. However, the mere absence of prejudice is not itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.
Merits of the application
[29] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
[30] As a preliminary matter, it is noted that the respondent to Mr Harvey’s application is Alchemy Construct Pty Ltd (ABN 47 604 483 105) (Alchemy Construct). The company submits that it is not the correct respondent and says that Mr Harvey was employed by Alchemy Construct Payroll Pty Ltd (CAN 76 619 972 520) (Alchemy Payroll). The company says that Mr Harvey commenced employment with it on 5 June 2017 but that Mr Harvey’s employment was transferred to Alchemy Payroll on 1 July 2017. The company sought that I amend the application to reflect Alchemy Payroll as the respondent, pursuant to section 586 of the Act.
[31] Mr Nicolson is a director of both entities and owner of the business. He gave evidence that Mr Harvey was employed by Alchemy Payroll. Mr Nicolson said that Alchemy Construct was the “operational arm” of the business and that on the advice of his accountant all employees engaged in the business, including Mr Harvey, were now employed by Alchemy Payroll. The company did not provide any documentary evidence to support this contention. In the absence of evidence from Mr Harvey on this point and any documentary evidence which demonstrates that Mr Harvey was employed by Alchemy Payroll rather than Alchemy Construct at the time of the dismissal, I am not persuaded that I ought exercise my discretion under section 586 to amend the application as requested. I simply note, that it may be that Alchemy Payroll, rather than Alchemy Construct, is the correct respondent.
[32] Mr Harvey submits that he was dismissed in contravention of section 340 of the Act. This section provides, amongst other things, that a person must not take adverse action against another person because the other person has a workplace right, or has, or has not, exercised a workplace right. ‘Adverse action’ is defined in section 342 and includes a dismissal. Section 341 provides that a person has a workplace right if, amongst other things, the person is entitled to the benefit of, or has a role or responsibility under, relevantly, a workplace law, or a workplace instrument or, if the person is an employee, is able to make a complaint or inquiry in relation to their employment.
[33] Mr Harvey was employed in the role of Construction Manager. It is agreed between the parties that on 21 January 2019 Mr Harvey directed an employee cease working on one of the company’s projects (Royal Melbourne Project) and commence work on another project (Monash University Project). Mr Harvey asserts that he made that direction to ensure that there was a dedicated site manager at the Monash University Project and that his was required to ensure compliance with occupational health and safety legislation. It is also agreed that Mr Nicolson subsequently revoked that direction and directed the employee to remain on the Royal Melbourne Project (Nicolson Direction). In his materials Mr Harvey stated that he considered the Nicolson Direction, amongst other things, undermined his positon and belittled him professionally. 19
[34] A number of text messages regarding this matter were subsequently exchanged between Mr Harvey and Mr Nicolson on 22 January 2019 about the Nicolson Direction. 20 Mr Harvey was then absent from the workplace for the remainder of 22 January 2019 until 25 January 2019 inclusive. Mr Nicolson’s evidence was that the absence was unauthorised. During Mr Harvey’s absence from the workplace Mr Nicolson made a number of attempts to contact Mr Harvey to meet to discuss the matter, including issuing him with a written direction to do so, however, Mr Harvey did not respond to Mr Nicolson or meet with him.21 Mr Nicolson’s evidence was that Mr Harvey’s response to the Nicolson Direction was aggressive and unreasonable.
[35] On 25 January 2019 Mr Harvey wrote to Mr Nicolson, stating that it was his “intention to resign from my position at Alchemy” and stated that he could meet Mr Nicolson later that day or the following Monday, 28 January 2019 (the Australia Day Public Holiday), “to discuss further if required.” It is agreed between the parties that Mr Harvey and Mr Nicolson met on 28 January 2019. In his materials Mr Harvey stated that at this meeting a “gentlemen’s agreement” for him to return to work the following day was reached. Mr Nicolson denies this.
[36] It is uncontested that a further meeting was arranged between Mr Harvey and Mr Nicolson for the following day, 29 January 2019 and that at this meeting Mr Nicolson terminated Mr Harvey’s employment. Mr Nicolson provided Mr Harvey with a letter of termination at this meeting (Letter of Termination) which, in summary, provides that Mr Nicolson had lost trust and confidence in Mr Harvey due to:
• Mr Harvey’s “behaviour over the last week”;
• Mr Harvey’s judgement in removing staff from the Royal Melbourne Project at the point in time at which this occurred and in the circumstances of that project;
• Mr Harvey’s failure to oversee completion and handover of projects as required by his role as Construction Manager; and
• negative feedback received by Mr Nicolson during Mr Harvey’s absence regarding Mr Harvey’s management style,
and accordingly, had determined to terminate Mr Harvey’s employment, effective immediately. 22
[37] In his materials, Mr Harvey primarily contends that his employment was terminated on 29 January 2019 because he had:
• a role or responsibility under a workplace law, namely occupational health and safety legislation;
• a role or responsibility under a workplace instrument, namely “Building Construction Compliance Codes”;
• a role or responsibility under “workplace Bullying and Harassment workplace compliance codes”;
• responsibilities under his contract of employment. 23
[38] Mr Harvey also variously contends that he was dismissed because he:
• raised concerns “a number of times” with Mr Nicolson in relation to “collusion and collaboration of winning building projects” and Mr Nicolson was growing uneasy about Mr Harvey’s positon in relation to this;
• Mr Nicolson made his role redundant to save on overheads. 24
[39] The company accepts that it dismissed Mr Harvey. There is therefore no dispute that adverse action in the form of dismissal was taken by the company. However, Mr Nicolson’s evidence at hearing was that Mr Harvey was dismissed because of the reasons set out in the Letter of Termination. Mr Harvey’s contentions that the company dismissed him because he had a role or responsibility under occupational health and safety legislation and/or because he made a complaint or inquiry in relation to his employment, are plausible. Other aspects of the application appear less well founded, however there is insufficient material before me to make any detailed assessment of their strengths. Further, Mr Harvey is unrepresented and might be able to develop his contentions with the assistance of counsel were the matter to proceed and the respective positions of the parties tested under cross-examination. Accordingly, I am prepared to consider the merits of the application as a whole to be a neutral factor in the present case.
Fairness as between the person and another person in a like position
[40] Applications to extend time generally turn on their own facts. The parties did not draw my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between Mr Harvey and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
[41] The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
[42] Having regard to all of the matters that I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application. Aside from Mr Harvey having taken steps to contest the dismissal, none of the factors in section 366(2) weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.
[43] I decline to grant an extension of time under section 366(2). Accordingly, Mr Harvey’s application under section 365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
No appearance for the Applicant.
R Scougall Representative for the Respondent.
Hearing details:
2019.
Melbourne:
24 April.
Final written submissions:
For the Applicant: 4 April 2019
For the Respondent: 18 April 2019
Printed by authority of the Commonwealth Government Printer
<PR708175>
1 (2000) 205 CLR at [33]
2 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]
3 [2011] FWAFB 975
4 At [13]
5 Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
6 Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]
7 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
8 See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]
9 Applicant’s Outline of Argument: Extension of Time filed 4 April 2019 at question 1d
10 Applicant’s Outline of Argument: Extension of Time filed 4 April 2019 at question 1d
11 Form F8 – General Protections Application Involving Dismissal, Annexure 1
12 Form F8 – General Protections Application Involving Dismissal, Annexure 1
13 Form F8 – General Protections Application Involving Dismissal, Annexure 1
14 Form F8 – General Protections Application Involving Dismissal, Annexure 1
15 Applicant’s Outline of Argument: Extension of Time filed 4 April 2019 at question 1d
16 Form F8 – General Protections Application Involving Dismissal at question 4
17 Form F8 - General Protections Application Involving Dismissal at question 1.4
18 Applicant’s Outline of Argument: Extension of Time filed 4 April 2019 at question 1b
19 Form F8 - General Protections Application Involving Dismissal at question 3.1 and Applicant’s Outline of Argument: Extension of Time filed 4 April 2019 at question 1h
20 Applicant’s Outline of Argument: Extension of Time filed 4 April 2019, Annexure 2 and Form F8A – Response to General Protections Application, Attachment 1
21 Applicant’s Outline of Argument: Extension of Time filed 4 April 2019 at question 1h
22 Form F8 - General Protections Application Involving Dismissal, Annexure 3
23 Form F8 - General Protections Application Involving Dismissal at question 3.3 and Applicant’s Outline of Argument: Extension of Time filed 4 April 2019, Annexure PH4
24 Applicant’s Outline of Argument: Extension of Time filed 4 April 2019 at question 1h
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