Mr Simon Borg v Babatjie Holdings Pty Ltd T/A Business Cents

[2016] FWC 8934

[2016] FWC 8934

FAIR WORK COMMISSION

DECISION

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

Mr Simon Borg
v
Babatjie Holdings Pty Ltd T/A Business Cents
(C2016/6561)

COMMISSIONER SAUNDERS NEWCASTLE, 16 DECEMBER 2016

Application to deal with contraventions involving dismissal – application to extend time refused

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 Simon Borg (the applicant) a further period for his general protections application (the Application) to be made.

The Hearing

[3] On 12 December 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant and his wife, Ms Carolyn Borg, gave evidence in support of his application for an extension of time. The respondent called evidence from Ms Gwen Gouveia, Director, and Mr Paul Beale, Project Manager.

Legislative Scheme

[5] 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.”

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

[7] 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

[8] 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

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

[10] 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

[11] 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

[12] There is no dispute and I am satisfied on the evidence that the applicant was dismissed by the respondent on 16 September 2016.

[13] The 21 day time period for the applicant to make his Application expired on 7 October 2016. 12 Given that the applicant filed his Application on 2 November 2016, the Application was 26 days late.13

[14] 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 7 October 2016 to 2 November 2016. However, the circumstances from the time of the dismissal (16 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.

[15] The relevant timeline of events may be summarised as follows:

(a) The applicant commenced employment with the respondent on 1 February 2016 and relocated to Alice Springs for this position. As a part of the applicant’s remuneration package he received wages, a company vehicle and the provision of a family property for him, his wife and five children to reside in.

(b) In August 2016 an incident occurred between the applicant and his neighbours living in the rear dwelling of his property. The applicant admits to having an argument with the couple; however the respondent alleges that the applicant assaulted the male individual and kicked their dog.

(c) The applicant was involved in a separate incident with Mr Beale outside the workplace in September 2016, in which the applicant alleges Mr Beale was behaving in a threatening and abusive manner towards him.

(d) On 16 September 2016, Ms Gouveia attended the applicant’s residence and handed the applicant a letter of termination. The letter stated that the applicant was being summarily dismissed due to serious misconduct. The letter of termination also included the following:

“All accommodation rent for the property provided to you, as part of your employment, will be recovered in your final pay and you are to vacate the premises as agreed in the Notice to Terminate Tenancy Agreement. The final pay will be released upon satisfactory property vacate inspection.”

(e) The Notice to Terminate Tenancy Agreement read as follows:

“a) The landlord/agent under the Residential Tenancies Act, hereby gives you notice that this tenancy will be terminated on 16/09/2016 (vacant position becomes available the day after)

b) The landlord/agent under the Residential Tenancies Act hereby gives you notice to deliver up vacant possession of the premises referred to above on: 18/09/2016.

The reason for giving this Notice is as follows:

Employment related tenancy (Not to be sooner than 2 days if employment agreement is breached)”

(f) Immediately after the applicant was advised of his dismissal he, and his wife, commenced submitting applications for alternate accommodation however they found it difficult to secure a house for their family to rent at such short notice and in light of the circumstances in which their tenancy of the property owned by the respondent had come to an end.

(g) Shortly after receiving the letter of termination and notice to vacate the premises, the applicant made an application to the Northern Territory Civil and Administrative Tribunal (NTCAT) to oppose the two day eviction notice and the respondent’s claim for outstanding rent.

(h) Approximately two days after the applicant’s dismissal on 16 September 2016 the applicant spoke to the Darwin Legal Centre by telephone about his termination of employment and an appointment was made for the applicant to speak to a solicitor some 14 days later. During the initial discussion with the Darwin Legal Centre on about 18 September 2016 the applicant was told that he had to lodge any application he may make in the Commission within 21 days from the date of his dismissal. During his appointment with a solicitor from the Darwin Legal Centre 14 days later, the applicant was again advised of the requirement to file his Application within the 21 day time period.

(i) On about 18 September 2016 the applicant also made contact with the Commission in relation to his termination of employment and admits that it is likely the person from the Commission to whom he spoke also advised him to lodge his general protections application within 21 days of his dismissal, however he does not have an actual recollection of being given such information in that discussion.

(j) The applicant managed to move his family into alternative accommodation on or around 7 October 2016, after seeking assistance from community organisations and borrowing funds from family to pay for the lease, as his wages were still being withheld by the respondent.

(k) The applicant attended three hearings before NTCAT in the period between 16 September 2016 and 7 October 2016 in relation to his application to oppose the notice eviction and the respondent’s claim for outstanding rent.

(l) On 7 October 2016, NTCAT determined that the applicant had to vacate the respondent’s property.

(m) Within a week or two of the NTCAT determination on 7 October 2016 the applicant left the Northern Territory for his own wellbeing and safety, and for the safety of his family, as he alleges he was continuing to receive threats from Mr Beale. The applicant also left the Northern Territory for the purpose of undertaking training for, and taking up, alternative employment.

(n) The applicant was offered a new job through a family member; he did not apply for the position. The applicant flew from the Northern Territory to Melbourne to undertake five days’ training for his new job.

(o) After staying in Melbourne for about one week, the applicant then travelled to Sydney to commence his new employment straight away. The applicant is now living in Sydney, however he has since travelled back to the Northern Territory for three weekends as his wife and children are still residing there.

(p) The applicant filed his Application in the Commission on 2 November 2016, 26 days outside the time frame prescribed by s.366(1)(a) of the Act.

[16] In his outline of argument, the applicant explained the reasons for his delay as follows:

“I tried to defend the dismissal as it was based on an incident unrelated to my employment, and I also tried to defend the notice to vacate in NTCAT.

I had to find alternative accommodation for myself, my wife and our 5 children. My wages were (and still are) being withheld and I had no means of financial support in order to secure other housing.

I was and still am receiving threats from my employer’s defacto partner (and fellow employee), and his friends.”

[17] The applicant gave oral evidence to the effect that the main reason for filing his Application late was due to him having to leave the Northern Territory for his own safety and for the safety of his family. I accept that the applicant was genuinely fearful for his own safety and for the safety of his family, and that this factor played a significant part in the applicant’s decision to move away from the Northern Territory.

[18] The applicant also contends that he was too busy to file his Application as he was searching for alternative accommodation for his family and dealing with the NTCAT proceedings.

[19] During the period immediately following his dismissal, the applicant was able to make an application to NTCAT and appear at NTCAT on three separate occasions. The applicant also made a number of housing applications following his dismissal and had two communications with the Darwin Legal Centre. Whilst I appreciate the urgency and need to find alternative accommodation for his wife and five children, after having moved his family into an alternative property on or around 7 October 2016, it still took the applicant a further 26 days to lodge his Application with the Commission. The evidence suggests that the applicant could have completed and lodged his Application well before 2 November 2016.

[20] Notwithstanding the housing, financial and other difficulties the applicant faced in the period following his dismissal, the applicant gave oral evidence that in the period from 7 October 2016 to 2 November 2016 when he travelled from the Northern Territory to Melbourne and then on to Sydney, he did not have access to the relevant documents he needed to lodge his Application with the Commission. 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. I note the applicant also sought advice from the Darwin Legal Centre about his rights and was informed on two separate occasions of the requirement to file his Application within 21 days of the date of his dismissal.

[21] While I have sympathy for the applicant, the matters he relies on, as set out in paragraphs [15] to [20] above, are not, either viewed in isolation or considered together, out of the ordinary course, unusual, special or uncommon, nor should they have prevented the applicant from making his Application within time. The applicant has not provided an adequate explanation for the whole period of delay in filing his Application. I find that this factor (s.366(2)(a)) weighs against granting the applicant an extension of time.

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

[22] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 14

[23] Shortly after his dismissal the applicant lodged a complaint with NTCAT to oppose the eviction notice and the respondent’s claim for outstanding rent. The applicant also had a number of oral communications with Ms Gouveia in which he challenged his dismissal. By doing so the applicant took action to dispute his dismissal.

[24] This factor weighs in favour of granting the applicant an extension of time.

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

[25] Prejudice to the employer will weigh against granting an extension of time. 15 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.16

[26] A long delay gives rise “to a general presumption of prejudice”. 17

[27] 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. 18

[28] The period of the delay in this matter was 26 days. I consider that to be a medium period of delay.

[29] In its outline of argument, the respondent asserts that the lateness of the Application would prejudice the respondent; however, no supporting evidence was adduced by the respondent in this case.

[30] In all the circumstances of this case, prejudice to the respondent is a neutral consideration.

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

[31] The applicant contends that his employment was terminated as a result of him exercising a workplace right, namely the applicant made a complaint alleging that he had been assaulted and threatened by a fellow employee. The applicant also asserts the respondent has contravened s.340 of the Act on the basis that it failed to provide the applicant with a safe working environment.

[32] The respondent denies the applicant’s contention that it has contravened s.340 of the Act and submits that the applicant was dismissed as a result of serious misconduct concerning, amongst other things, the incident described in paragraph [15(b)] above.

[33] The resolution of the contested factual question concerning the reason(s) for the termination of the applicant’s employment will only be able to be determined after a full hearing on the merits, including cross examination of the decision makers. In those circumstances, I am satisfied that the merits of the Application is a neutral consideration in relation to whether or not I should extend time for the Application to be made.

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

[34] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 19 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.”

[35] 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

[36] Having taken into account the matters referred to in paragraphs [12] to [35] 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.

[37] 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 S Borg on his own behalf;

Ms G Gouveia, Director, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

December, 12.

 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   That is, 21 days from 16 September 2016 (not including 16 September) is 7 October 2016.

 13   That is, 2 November 2016 is 26 days after 7 October 2016.

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

 15   Ibid.

 16   Ibid.

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

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

2003) PR927201 at [16]

 19   [2016] FWCFB 6963

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