Mr Russell Krueger v Tailored Workforce Pty Ltd

[2017] FWC 1325

[2017] FWC 1325

FAIR WORK COMMISSION

DECISION

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

Mr Russell Krueger
v
Tailored Workforce Pty Ltd
(C2017/487)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 7 MARCH 2017

Application to deal with contraventions involving dismissal – whether to extend time for lodging the application.

[1] On 25 January 2017, Mr Russell Krueger lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is Tailored Workforce Pty Ltd.

[2] The Applicant commenced employment with the Respondent in October 2016 as a casual forklift driver. The Applicant submits he was dismissed on 20 December 2016 and the dismissal took effect on that same day.

[3] The application was therefore lodged 15 days out of time.

[4] For the reasons set out below I have concluded that I am not satisfied there are exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Alleged Contravention

[5] Mr Krueger submits that he was forced to resign from his employment because he received a written warning resulting from a complaint made by a co-worker who felt uncomfortable working with him after he asked her out to dinner. A breach of s.340 and s.344 are alleged.

[6] Tailored Workforce submits that Mr Krueger was not dismissed and there has been no breach of ss.340 or 344 as alleged. They submit that Mr Krueger walked out of his employment at a host company after being issued with a warning and has subsequently requested further work. Mr Krueger has also been offered interviews for other positions which he has refused to accept.

Legislative scheme

[7] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(2) The application 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).

[8] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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.

[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1where 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.

[Endnotes not reproduced]

[10] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...
(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[1] The onus of establishing exceptional circumstances is on the Applicant. Mr Krueger needs to provide a credible reason for the whole of the period that the application was delayed. 2

[2] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … 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.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. 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. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”

Procedural Background

[3] On 15 February 2017, the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 24 February 2017.

[4] The Applicant was self-represented. To assist the Commission in dealing with the matter more efficiently the Respondent was granted permission to be represented by Mr Tindley of FCB Workplace Lawyers & Consultants.

Matters to be taken into account pursuant to s.366(2)

[5] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[6] Mr Krueger’s evidence at the telephone hearing was that he had made a complaint to a Tailored Workforce Manager on 21 December 2016 and if they had taken his complaint seriously he wouldn’t have lodged an application with the Commission. Mr Krueger submits he was told by the Manager with whom he spoke that she would “follow up” his complaint 3. Mr Krueger made no further contact with Tailored Workforce in relation to seeking a response to his complaint.

[7] Mr Krueger’s evidence was that he wasn’t aware that he had rights as a casual until he spoke to a friend on the 10 January 2017 who advised him he could make an application to Commission.

[8] The evidence given by Mr Krueger was that he called the Commission on or around 10 or 11 January 2017 to seek advice. He was made aware of the process for making an application at this time. Mr Krueger didn’t make an application immediately after receiving this advice as he was waiting for a response from Tailored Workforce before he lodged his application. He says it was their lack of respect for his grievance that contributed to the delay.

[9] Mr Krueger did not provide any other reason as to why it took him a further 15 days after receiving the advice from his friend and the making of his inquiry to the Commission to lodge his application.

[10] The Respondent submits the reasons provided by Mr Krueger do not amount to an exceptional circumstance warranting an extension of time. 4

[11] The Respondent further submits many terminations of employment will involve a terminated employee wanting to understand how the termination was dealt with, and seek to dispute information in relation to the termination. They submit Mr Krueger’s reliance on the reason for his delay, being that Tailored Workforce had not responded to Mr Krueger’s complaint, does not amount to an exceptional circumstance warranting an extension of time. 5

[12] It is submitted there is no link between Mr Krueger seeking a response to his complaint and his ability to comply with the required time limit. Tailored Workforce relies on the decision of Saunders v Verizon Australia Pty Ltd T/A Verizon 6 in which Deputy President Kovacic considered the issue of an alleged failure of the Respondent employer to provide information to the terminated employee.

[13] In his decision Deputy President Kovacic expressed the following view;

“[16] It is not clear from Mr Saunders’ submissions why he required the information he sought from Verizon to complete his application. While his application raises the issue of alleged underpayments, in this case this is not material to establishing a contravention of the general protections provisions of the Act.” 7

[14] On appeal against the decision of the Deputy President the Full Bench found that the Deputy President had not erred in his decision that the materials sought by the applicant were not material to the making of the application 8. It is clear from the appeal decision that the information sought by the Applicant must be required for the completion of an application in order for it to be given weight by the Commission in exercising its discretion under s366(1)(b) of the Act.

[15] Whilst I agree with Mr Krueger that it would be a reasonable expectation that an employer responds to a grievance in a timely manner, and that it would have been respectful and the right thing for them to do, Mr Krueger in his submission was challenging the severity of his written warning. I do not consider this to be material to the making of his application.

[16] Although Mr Krueger was aware he could lodge an application as early as 10 or 11 January 2016, he was unable to provide any exceptional reasons as to why he was unable to lodge his application for a further 15 days after obtaining advice from his friend and from the Commission. The submissions and evidence of Mr Krueger do not point to the existence of exceptional circumstances.

[17] For this consideration there must be an acceptable reason for the delay 9 and this must be for the whole period that the application was delayed.10 I am not satisfied that Mr Krueger has provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[18] Mr Krueger submits he had no choice other than to resign from his position as a consequence of being treated unfairly during a disciplinary meeting. Mr Krueger submits he made a phone call to Tailored Workforce on 21 December 2017 expressing his concerns about the treatment he received. 11 Other than that phone call, Mr Krueger took no action to dispute his dismissal.

[19] Tailored Workforce submits Mr Krueger was not dismissed, he had by his own admission resigned. They further submit Mr Krueger took no other action than to call Tailored Workforce an hour after he left the worksite requesting to be placed on a different job site and a second call on 21 December 2016 during which he apologised, stating he had been forced to resign. Tailored Workforce submits that neither of these actions represents Mr Krueger contesting his dismissal. 12

[20] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 13 I am not satisfied the attempt made by Mr Krueger to dispute his resignation favours the granting of an exception of time, therefore this factor weighs against granting a further period for Mr Krueger to lodge his application.

(c) Prejudice to the employer (including prejudice caused by the delay)

[21] Prejudice to the employer will go against the granting of an extension of time. 14 Mr Krueger submits the prejudice the employer would suffer is the loss of a competent, loyal, responsible hard working team member. Mr Krueger did not make any other submission relating to this criterion.

[22] The Respondent submitted that it would be prejudiced by having to defend a claim of a short term casual who resigned from their employment after receiving a warning and that the applicant is jurisdictionally barred from making the application as it is out of time, therefore it would not have otherwise had to address such a claim.

[23] While I note the Respondent’s submission that having to defend a general protections application involves some resources, it goes more to the issue of inconvenience as opposed to prejudice. There will always be a level of inconvenience associated with either party having to prepare to address a claim. I consider this criterion to be neutral.

(d) Merits of the application

[24] Neither Mr Krueger’s written submission nor his evidence given during the hearing directly addressed this criterion. The facts of this matter were fairly straight forward and not in contention. Mr Krueger had been working with an employee when he noticed she wasn’t wearing a wedding ring. He was advised by a number of work colleagues that the female co-worker was single. Mr Krueger submits the female co-worker provided him with her mobile phone number just in case he needed to call her regarding any urgent matters. 15 On 16 December 2016 Mr Krueger called his co-worker and asked her out on a date. The co-worker advised Mr Krueger she was married and declined his offer.

[25] Mr Krueger was called to a meeting with Site Supervisor Kris Chand from Tailored Workforce to discuss a complaint raised by the co-worker regarding his pursuit of a personal relationship out of hours. Mr Chand advised Mr Krueger the advance he had made to his co-worker had made her feel uncomfortable, to which he was invited to provide a response. Mr Krueger refused to do so and was given a verbal warning and advised it would be followed up by a written warning.

[26] Mr Krueger’s submission and evidence centred around three points, Tailored Workforce’s failure to respond in a timely and respectful manner to his grievance, the question of whether it was fair and reasonable for him to have been given a written warning for asking someone out on a date outside of work hours and whether the warning was disproportionate to the actions of Mr Krueger.

[27] Whilst I acknowledge it would have been reasonable for Mr Krueger to expect a timely response to his grievance, this does not necessarily mean that adverse action has occurred.

[28] Mr Krueger’s evidence was that he had resigned from his position that same day as he felt he was treated unfairly. It was Mr Krueger’s submission that he should at most have received a verbal warning and not a written warning 16.

[29] Other than raising the issue of whether the discipline was disproportionate to his conduct, which was the subject of the complaint, Mr Krueger’s submission and evidence did not identify a workplace right he had, or had exercised, or had proposed to exercise which is relevant to the Application.

[30] Although Mr Krueger submits he resigned from his position, he concedes he had spoken to Tailored Workforce about obtaining further work. However when offered alternative work by Tailored Workforce he had declined the positions due to the location and the nature of the work.

[31] Tailored Workforce submits the application was without merit in that Mr Krueger was unable to identify any workplace right which he asserts he had, or had exercised or intended to exercise. Further Mr Krueger relied on s.344 of the Act and was not able to identify any alleged undue influence.

[32] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 17 However, the Commission cannot make any findings on contested matters without hearing evidence.

[33] Although Mr Krueger has raised a valid question as to whether the reaction of Tailored Workforce to the complaint was disproportionate, the Commission notes that, for the purpose of determining whether to grant an extension of time to Mr Krueger to file his application, it “should not embark on a detailed consideration of the substantive case.” 18Having reviewed the material before me and the evidence provided during the telephone hearing, I am not satisfied that Mr Krueger has provided sufficient evidence to establish a highly meritorious claim. Therefore I consider this criterion to be neutral.

(e) Fairness as between the person and other persons in a like position

[34] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 19 However, there were no submissions from Mr Krueger that there is, or has been, any persons in a similar position.

[35] Tailored Workforce made a general submission on this criterion contending that if the Commission was to exercise its discretion under section 366(1)(b) it would create unfairness due to the established position of the Commission refusing applications in the absence of exceptional circumstances 20.

[36] In the absence of any compelling submissions on this criterion, I find this criterion neutral.

Conclusion

[37] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances”, while not specifically defined in the Act, has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[38] A conclusion that there are exceptional circumstances, taking into account the statutory considerations, is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 21

[39] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

[40] An order 22 dismissing Mr Krueger’s application will accompany this decision.

COMMISSIONER

Appearances:

Krueger R, Applicant;

Tindley N, paid agent for the Respondent.

Hearing details:

2017

24 February (Telephone hearing)

 1   [2011] FWAFB 975.

 2   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403

 3   Exhibit A1

 4   Exhibit R1

 5   Ibid

 6   Saunders v Verizon Australia Pty Ltd T/A Verizon[2015] FWC 8633

 7   Ibid, [16]

 8   Saunders v Verizon Australia Pty Ltd T/A Verizon[2016] FWCFB 1750

 9   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 10   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409

 11   Exhibit A1

 12   Exhibit R1

 13   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 14   Ibid

 15   Exhibit, A2

 16   Exhibit, A2

 17   Haining v Deputy President Drake (1998) 87 FCR 248, 250

 18   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 19   Wilson v Woolworths [2010] FWA 2480, [24]-[29]

 20   Exhibit R1

 21  Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

 22   PR590794

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