Mr Samir Pavlic v Guala Closures Australia Pty Ltd

[2013] FWC 692

[2013] FWC 692

FAIR WORK COMMISSION

DECISION

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

Mr Samir Pavlic
v
Guala Closures Australia Pty Ltd
(C2013/2695)

COMMISSIONER ROE MELBOURNE, 1 FEBRUARY 2013

Decision - general protections dispute- jurisdiction: extension of time - identification of Respondent - termination of employment.

[1] An Application was made by Mr Samir Pavlic (the Applicant) on 11 January 2013 pursuant to Section 365 of the Fair Work Act 2009 (Cth) (the Act) alleging contravention of Part 3-1 of the Act involving dismissal. The Applicant alleged that he was terminated by Guala Closures Australia Pty Ltd (Respondent or Guala Closures) on 9 November 2012.

[2] I listed the matter for conference and in response the Respondent raised a number of jurisdictional objections. Given the nature of those objections I decided to list the matter for hearing to deal with the jurisdictional matters. The Respondent argued that the Applicant had never been employed by Guala Closures Australia Pty Ltd but was in fact employed by In-Fusion who are a labour hire company who supply labour to Guala Closures and to a number of other companies. The Respondent also argued that the Application was out of time.

[3] The Applicant represented himself and the Respondent was represented by Mr Devers who also represented In-Fusion Management Pty Ltd ATF CK Trust (In-Fusion).

[4] After questioning both parties I am satisfied that the following matters are not in contention:

● The Applicant was working at Guala Closures from 24 September 2012 until 9 November 2012.
● The Applicant was never employed by Guala Closures but was employed by In-Fusion. The Applicant was employed on a casual basis. The periods of engagement depended upon assignments with host employers being available and the duration of those engagements.
● Guala Closures and In-Fusion say that the project the Applicant was engaged on at Guala Closures came to an end on 9 November 2012.
● The Applicant says that he had an expectation that the employment would continue and that he was terminated because he applied for another position at Guala Closures and they checked his previous employer and discovered that he had made a health and safety complaint whilst at that employer and he was told that he would not continue at Guala Closures because of his “history”. Guala Closures accept that words to the effect of “because of history” were used but that was about skills and performance only.
● The Application was dated 2 January 2013 and the Applicant says that he posted the Application on 3 January 2013. The Application was received by FWA on 11 January 2013. The Application is two days out of time.
● The Applicant was contacted by In-Fusion on three occasions after his engagement at Guala Closures ended on 9 November 2012 to seek his interest in particular assignments with other employers. He was not selected for any of these jobs. The first of those contacts was on 9 November 2012, the second was in the week of 16 November and the third was around the end of November. The Applicant has applied for a further In-Fusion placement since that time. The Applicant remains on the books of In-Fusion.
● The Applicant does not allege adverse action by In-Fusion.
● The Applicant says that he contact Fair Work Australia within a few days of the termination of his work at Guala. He says he saw that he had 60 days in which to lodge an application. He took no further action until 2 January 2013 when he downloaded the form and filled it in and posted it the next day.
● The only reason for delay submitted by the Applicant was the delay in the postal service.
● The Applicant and the Respondent do not suggest that there any other employees in a like position.
● The Respondent does not suggest that there is any prejudice if an extension of time was to be granted beyond the normal given that the delay is short.
● The Respondent strongly argues that the Application is without merit given that there was no termination and that there is no basis for alleging adverse action.

[5] The Act provided at the time of the alleged termination on 9 November 2012 as follows (the time period is now 21 days but this applies to terminations after 1 January 2013):

“366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA 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.”

[6] I adopt the approach to the question of exceptional circumstances for the extension of time taken by Vice President Lawler:

“In summary, the expression “exceptional circumstances” 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.” 1

[7] The parties agreed with my assessment that the criteria in Section 366(2)(c) and (e) are neutral or not relevant. In respect to Section 366(2)(b) the Applicant took no action during the 60 days to dispute the alleged dismissal other than preparing the form. In respect to the merits (Section 366(2)(d)) I make no judgment about the competing submissions about what the reference to “history” meant when the Applicant was advised that he would not have ongoing work at Guala Closures. I have not considered the evidence in respect to this matter. However, I am satisfied that the Application is without merit because there is no evidence of termination of employment and certainly no termination by the entity accused of adverse action. I am also satisfied that even if an Application had been made alleging a contravention other than dismissal the nature of the alleged breach of workplace rights is unclear. In respect to the reasons for delay (Section 366(2)(a)) it is well established that delays in the post do not in themselves constitute exceptional circumstances. There are some circumstances in which such delays may be regarded as exceptional. Certainly the length of the delay alleged by the Applicant in this case in a metropolitan area is unusual.

[8] Considering all of the factors set out in Section 366(2) I am not satisfied that there are exceptional circumstances warranting an extension of time in this case. The primary reasons in this case are the lack of action to contest the termination and the lack of merit in the Application. The reasons for delay are not sufficient to outweigh these factors.

[9] The extension of time is refused and the Application is therefore dismissed. An Order to this effect will be issued.

COMMISSIONER

Appearances:

The Applicant appeared for himself.

Mr Devers represented the Respondent and In-Fusion Management Pty Ltd ATF CK Trust.

Hearing details:

2013

Melbourne

January 30

 1   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2007] AIRC 848 at para 10.

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