Mr Phillip Van Ash v Service Stream Communications Pty Ltd

[2016] FWC 8264

[2016] FWC 8264

FAIR WORK COMMISSION

DECISION

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

Mr Phillip Van Ash
v
Service Stream Communications Pty Ltd
(C2016/5893)

COMMISSIONER SAUNDERS NEWCASTLE, 22 NOVEMBER 2016

Application to deal with contraventions involving dismissal – application for extension of time refused – application dismissed.

Introduction

[1] The Fair Work Act 2009 (Cth) (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 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Mr Phillip Van Ash (the applicant) a further period for his general protections application (the Application) to be made.

The Hearing

[3] On 21 November 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] During the hearing, I gave the applicant leave to amend the Application to change the identity of the respondent from Service Stream Pty Ltd to Service Stream Communications Pty Ltd.

[5] The applicant gave evidence in support of his application for an extension of time. The respondent called evidence from Ms Catherine Lawless, National Human Resources Manager.

Legislative Scheme

[6] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:

“(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.”

[7] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3

[8] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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.”

Consideration

Paragraph 366(2)(a) – reasons for delay

[9] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6

[10] There must be an acceptable reason for the delay in making the general protections application. 7

[11] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8 Ignorance of the 21 day timeframe is not an exceptional circumstance.9

[12] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 10 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:11

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

Relevant chronology of events and reasons for delay

[13] The applicant contends that he was employed by the respondent from March 2016 until his alleged dismissal on 7 September 2016.

[14] The respondent contends that the applicant was not, at any time, an employee of the respondent. It also contends the applicant’s contract for services was suspended on 7 September 2016, but has not been terminated.

[15] In the context of a s.365 application, the Commission does not have jurisdiction to determine whether the applicant was employed by the respondent or whether the applicant was dismissed from their employment. 12

[16] For the purposes of determining the applicant’s application for an extension of time pursuant to s.366(2) of the Act, I will take the applicant’s case at its highest on the issue of dismissal and proceed on the assumption that he was dismissed (as alleged by him) on 7 September 2016.

[17] Using the applicant’s alleged date of dismissal as 7 September 2016, the 21 day time period for the applicant to make his general protections application expired on 28 September 2016. 13 Given that the applicant filed his Application on 30 September 2016, the Application was two days late.14

[18] In accordance with the principles summarised in paragraphs [8] to [11] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 28 September 2016 to 30 September 2016. However, the circumstances from the time of the dismissal (7 September 2016) must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.

[19] The applicant relies on the following reasons for failing to file his Application within 21 days when his dismissal took effect:

(a) First, after his employment came to an end on 7 September 2016, the applicant’s health deteriorated. He suffered from extreme fatigue and had difficulty sleeping. The applicant gave oral evidence that he had to continually rest and could not sit at the computer for more than about five minutes at a time. In addition, the applicant gave oral evidence that in the last week or so prior to the hearing on 21 November 2016 he had been in hospital receiving an iron transfusion as a result of his medical condition;

(b) Secondly, the applicant had been struggling to look for alternative employment; and

(c) Thirdly, the applicant contends that he was not provided with any advice about which organisation he should approach in order to dispute his employment coming to an end.

[20] As to the first and second reasons relied on by the applicant, he further explained his delay in making his Application in the following way in his outline of argument dated 21 November 2016:

“With the Service Stream decision I have been struggling more with my medical issues, and me medical condition has changed more, and aggravated. Now muscle soreness, tiredness and I believe the pressure put on by the employer has agitated my medical condition more now. This medical arises has made been be able to be less active and filling application has been slowed down, plus looking for other work. Attached is medical certificate from the doctor [sic].”

[21] The applicant relies on a medical certificate prepared by Dr Ta Phengsiaroun on 27 October 2016. Dr Phengsiaroun was not called to give evidence. His medical certificate states that:

“Mr Van Ash was suspended from his work on 7/09/2016 and he submitted an F8 application form late due to his medical condition. He has been unwell for several months with side effects of his treatment which affects his concentration, memory, causing extreme fatigue and tiredness.”

[1] Notwithstanding the medical and other difficulties the applicant faced in the period following his dismissal, the applicant gave oral evidence that in the period between 7 September 2016 and 28 September 2016 he would have been able to perform work on some days, although not on every day, had he been offered or directed to undertake such work by the respondent. This evidence suggests that the applicant was not completely incapacitated by his medical condition and he could have completed his Application and filed it prior to 28 September 2016.

[2] As to the third reason relied on by the applicant, he gave oral evidence to the effect that he was not aware of which organisation or “Ombudsman” to approach in order to make a complaint about the harshness of his contract being suspended. In my view, this reason for delay is not out of the ordinary course, unusual, special or uncommon, and does not adequately explain the applicant’s delay in filing the Application.

[3] While I have sympathy for the applicant, the evidence in this case is insufficient, in my view, to warrant a finding that the applicant’s difficulties associated with his reasons for making the Application outside the 21 day period prescribed by the Act were out of the ordinary course, unusual, special or uncommon.

[4] This factor 15 weighs against granting the applicant an extension of time.

Paragraph 366(2)(b) – any action taken by the person to dispute the dismissal

[5] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 16

[6] The applicant concedes that he did not take any action to dispute his alleged dismissal, other than by making his Application. This weighs against a finding that there are exceptional circumstances.

Paragraph 366 (2)(c) - prejudice to the employer (including prejudice caused by the delay)

[7] Prejudice to the employer will weigh against granting an extension of time. 17 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.18

[8] A long delay gives rise “to a general presumption of prejudice”. 19

[9] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 20 No such evidence was adduced by the respondent in this case.

[10] The period of the delay in this matter was two days. That is a short period of delay.

[11] Noting that the delay was two days, I am satisfied that there would be no greater prejudice to the respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the respondent is a neutral consideration.

Paragraph 366(2)(d) - merits of the application

[12] In his Application, the applicant contends that the respondent contravened s.340 of the Act, as a result of the respondent not offering him any further work. However, the applicant has not identified the workplace right he relies upon, nor has he explained in his Application or elsewhere how he says the respondent contravened s.340 of the Act. The principal complaint being pursued by the applicant is one related to the fairness of the respondent’s decision to suspend his contract as a result of a customer complaint and not offer him any further work. It follows, in my view, that the merits of the Application are weak.

[13] In making my assessment about the merits of the Application, I have not made any assessment about the likelihood of the applicant succeeding in his claims that he was employed by the respondent and he was dismissed by the respondent on 7 September 2016. The outcome of those claims would require an assessment of a whole range of evidence, including the cross examination of relevant witnesses. Absent hearing such evidence, I am not in a position to make a finding about the merits of those aspects of the Application.

[14] My assessment of the merits of the Application weighs against granting the applicant an extension of time.

Paragraph 366(2)(e) - fairness as between the person and other persons in a like position

[15] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 21 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[16] I am not satisfied that the issue of fairness as between the applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[17] Having taken into account the matters referred to in paragraphs [12] to [37] above, I am, on balance, not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. The applicant’s circumstances were not out of the ordinary course, unusual, special or uncommon.

[18] Accordingly, the application for an extension of time is refused. The jurisdictional objection as to the Application being made out of time is upheld and the substantive Application is dismissed.

COMMISSIONER

Appearances:

Mr P Van Ash on his own behalf;

Mr C Chapman, General Counsel of the respondent.

Hearing details:

2016.

Newcastle:

November, 21.

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgment 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   Secction 366(2) of the Act.

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 4 [2011] 203 IR 1

 5   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 6   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 8   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 9   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 10   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 11   [2016] FWCFB 349 at [31]

 12   Hewitt v Topero Nominees Pty Ltd [2013] FWCFB 6321

 13   That is, 21 days from 7 September 2016 (not including 7 September) is 28 September 2016.

 14   That is, 30 September 2016 is two days after 28 September 2016.

 15   s.366(2)(a)

 16   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 17   Ibid.

 18   Ibid.

 19   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 20   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February

2003) PR927201 at [16]

 21   [2016] FWCFB 6963

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