Mr Peter Crozier v Allied Express Transport Pty Ltd T/A Allied Express

[2014] FWC 1491

[2014] FWC 1491

FAIR WORK COMMISSION

DECISION

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

Mr Peter Crozier
v
Allied Express Transport Pty Ltd T/A Allied Express
(C2014/2505)

COMMISSIONER LEWIN MELBOURNE, 7 MARCH 2014

Application to deal with contraventions involving dismissal — application to extend time for lodging application — whether exceptional circumstances exist — extension of time refused.

Background

[1] Mr Peter Crozier has made an application to the Fair Work Commission (the Commission) under s 365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dismissal dispute involving alleged contraventions of the General protections provisions of the Act. 1

[2] Mr Crozier was employed by Allied Express Transport Pty Ltd trading as Allied Express (Allied Express). Allied Express terminated Mr Crozier’s employment on 22 October 2013. Mr Crozier made his application to the Commission on 6 January 2014.

[3] Allied Express objects to the Commission dealing with Mr Crozier’s dispute on the basis he lodged his application after the 21 day period prescribed for doing so under s 366 of the Act.

[4] Under s 366(1)(b), the Commission may allow a further period for a person to lodge an application under s 365 if it is satisfied there are exceptional circumstances. The parties were given an opportunity to provide witness statements, evidence and submissions to the Commission and a hearing was held on 21 February 2014 to allow the parties to put forward their positions on whether the Commission should exercise its discretion to allow Mr Crozier a further period within which to lodge his application.

Legislative scheme

[5] Section 366(1)(a) of the Act provides that an application under s 365 must normally be made within 21 days after the relevant dismissal took effect. The factors the Commission must take into account in exercising the discretion to allow a further period within which an applicant may lodge an application are set out in s 366(2):

366 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 proceedings, evidence and submissions

[6] The hearing held on 21 February 2014 was attended by Mr Crozier, who represented himself, and Ms Brooke Pendlebury of Pendlebury Workplace Law, who represented Allied Express.

[7] At the hearing I granted Ms Pendlebury permission to appear on behalf of Allied Express under s 596(2)(a) of the Act on the basis it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[8] Mr Crozier’s evidence was that he submitted his application late because he was unwell. In an email to the Commission dated 24 January 2014 Mr Crozier stated:

The reason for my late application in this matter has been caused by the fact that I was unwell for a long period of time after being dismissed while I was unwell.

[9] In relation to Mr Crozier being unwell, he has provided to the Commission medical certificates covering the period from 17 October 2013 to 18 October 2013 (inclusive) and 21 October 2013 to 22 October 2013 (inclusive). The medical certificates state that on those dates Mr Crozier “will be unfit to continue his usual occupation”. Mr Crozier has provided no other medical evidence of illness covering the period from the termination of his employment until the date he lodged his application or how the illness affected his ability to lodge an application. However, Mr Crozier gave vica voce evidence at the hearing on 21 February 2014 that he was debilitated by influenza and sinusitis around the time of and following the termination of his employment, for which antibiotic medication was prescribed. Mr Crozier stated that his health improved only slowly after the termination of his employment.

[10] Mr Crozier also said he found the process of making the application difficult and had initially sought to make an application under s 773 of the Act in relation to what are defined as the unlawful termination provisions of s 772, mistakenly, rather than the general protections provisions under which the application is now made.

[11] On 23 December 2013 Mr Crozier used his computer and the Commission’s website to lodge an application under s 773 of the Act. The Commission’s Registry contacted Mr Crozier on 30 December 2013 providing him with information indicating the termination of his employment was likely covered by the general protections provisions of the Act. Mr Crozier’s attention was also drawn to s 723 of the Act, which prohibits a person from making an unlawful termination application if they are entitled to make a general protections application under s 365.

[12] On 2 January 2014 Mr Crozier withdrew his s 773 application and lodged this general protections application.

[13] Allied Express submitted that Mr Crozier had failed to identify any reasonable explanation for the delay of 55 days in lodging the general protections application that would satisfy the exceptional circumstances requirement under s 366(2) of the Act. With regards to the incompetent s 773 application, Allied Express argued that application was made 41 days late and does not show Mr Crozier took action to dispute the dismissal.

[14] Allied Express stated that if the application were now to be accepted the delay would cause prejudice to it as “the memory of potential witnesses with respect to relevant matters of detail may have faded”; that the application has no merit and denies the allegations made by Mr Crozier against it. Allied Express submitted that the application raised no issue of fairness between Mr Crozier and other persons in a like situation.

Consideration

[15] I have considered Mr Crozier’s viva voce evidence that he was impeded from making the application within the time prescribed by the Act. That evidence is of a general nature. There is no medical evidence whatsoever to support a conclusion that Mr Crozier’s condition was such that he would have been prevented from making the application within the time prescribed. Such evidence is that he was “unfit to continue his usual occupation”, which is a different consideration to whether Mr Crozier could, despite his illness, have made an application to the Commission within 21 days of the termination of his employment or at an earlier time than the filing of the s 773 application or the s 365 application..

[16] Moreover, Mr Crozier lodged his s 773 application 41 days outside the 21 day time period required under the Act. The delay in making the incompetent application under s 773 is far from minor.

[17] Mr Crozier gave evidence of the actions he took to make the s 773 application when he did. Mr Crozier had access to a computer and used the Commission’s website to make the application. On what is before me, Mr Crozier is adept at using a computer and did so as part of his employment. Mr Crozier seems to have found using the Commission’s website and completing the application forms under ss 365 and 773 straight forward and expeditious.

[18] I am not convinced that the reason for the period of the delay in filing either application advanced by Mr Crozier is sufficiently credible that I can reach a sound finding that he was incapacitated or unwell enough not to be able to lodge either the s 773 application or the s 365 application within 21 days after the termination of his employment or shortly thereafter. However, I will allow a delay of a week as hypothetically attributable to confusion concerning the unlawful termination provisions and the effect of the provisions of s 365 and s 723 of the Act.

[19] In my judgement, the delay of 41 days in making the original application under s 773 is unreasonable in all the circumstances.

[20] I accept that Mr Crozier took action to dispute the dismissal; however, as outlined above, the delay in taking the action of making an application under the Act to dispute the dismissal was unreasonable.

[21] On what is before me, I doubt there would be any prejudice of the relevant kind to the employer if the application were accepted.

[22] I consider the application may have merit and I treat this consideration as neutral.

[23] There are no other persons in a like position as Mr Crozier such as would give rise to this being a relevant consideration.

Conclusion

[24] In my view the reason advanced by Mr Crozier for the delay in filing the original s 773 and subsequent s 365 applications is highly questionable. The delay is extensive and I am not convinced that the extent of the delay can be attributed to the symptoms of influenza and sinusitis for which medication had been prescribed around the time of the termination of Mr Crozier’s employment. This consideration weighs heavily against a finding of exceptional circumstances, which would warrant an extension of time for the s 365 application. While some debilitation and discomfort may have well been experienced by Mr Crozier, I find I cannot accept Mr Crozier’s evidence that these symptoms were a practical impediment to filing either application for the extent of the delay identified respectively.

[25] I judge the other relevant considerations to be neutral.

[26] I have reached the conclusion that the circumstances of this case do not fall within the category of exceptional so as to weigh in favour of accepting Mr Crozier’s application some 55 days after the time provided for the making of the application under s 366 of the Act.

[27] I decide accordingly to dismiss the application. An order to dismiss the application will follow.

COMMISSIONER

Appearances:

Mr P Crozier, self-represented.

Ms B Pendlebury, a solicitor, for Allied Express.

Hearing details:

2014.

Melbourne.

21 February.

 1 Chapter 3, Part 3-1 of the Fair Work Act 2009.

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