Mr Stephen Hirvonen v Julalikari Council Aboriginal Corporation
[2019] FWC 3462
•6 JUNE 2019
| [2019] FWC 3462 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Stephen Hirvonen
v
Julalikari Council Aboriginal Corporation
(C2019/1132)
DEPUTY PRESIDENT LAKE | BRISBANE, 6 JUNE 2019 |
Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – extension of time – extension of time not granted – application dismissed.
[1] This Decision concerns an application by Mr Stephen Hirvonen (the Applicant) under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a General protections dispute in relation to his dismissal by the Julalikari Council Aboriginal Corporation (the Respondent). The Applicant states in his Form F8 General protections application that he was notified of his dismissal on 14 January 2019 and that the dismissal took effect on 21 January 2019. The application was made on 21 February 2019.
[2] By virtue of s. 366(1) of the Act an application under s. 365 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 366(2). The application must have been made by 11 February 2019 but was not. It is therefore necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made.
[3] The Respondent did not consent to participate in a conciliation prior to the determination of whether the Applicant should be granted a further period in which to make his application. Directions were issued requiring the Applicant to file a statement setting out the basis for the submission that there were exceptional circumstances justifying the grant of a further period in which to make his application, by 12.00pm on Friday, 29 March 2019. The Respondent was directed to file and serve any material in relation to the matter by 12.00pm on Friday, 5 April 2019. The Applicant and Respondent were directed to the Commission’s guidance material for “Applicant’s outline of argument: Extension of time” and “Respondent’s outline of argument: Extension of time”.
[4] The matter was listed for Objections Conference/ Hearing on 11 April 2019 by telephone. At the hearing, Mr Patrick Cozens and Ms Kendra Frew of Cozens Johansen Lawyers sought leave to represent the Respondent pursuant to s. 596 of the Act. Mr Hirvonen appeared on his own behalf. I granted permission for the Respondent to be represented pursuant to s.596(2)(a) of the Act, as I was satisfied that the matter was of sufficient complexity that granting permission for representation would enable the matter to be dealt with more efficiently.
CONSIDERATION OF WHETHER A FURTHER PERIOD SHOULD BE GRANTED
The approach to deciding whether a further period should be granted
[5] As previously noted, s.366(1) of the Act requires that a general protections application under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 366(2) of the Act.
[6] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a General protections application to be made as follows:
“(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 similar position.”
[7] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant seeking the grant of a further period in which to make an application. 1 A decision as to whether a further period to make an application should be granted, involves the exercise of discretion.2 The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:
• out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
• involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 3
[8] It is also not correct to construe exceptional circumstances as being only an unexpected occurrence, although frequently it will be. 4 Further, it is also necessary to consider all relevant circumstances even where some or all are not exceptional in order to determine whether in combination, the circumstances may be regarded as exceptional.
[9] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account each if the matters in s.366(2) of the Act. I will consider each of those matters in turn.
The reason for the delay – s. 365(2)(a)
[10] The Commission must consider the reason for the delay. An absence of an explanation for part of the delay may weigh against an extension being granted, while a credible explanation for the entirety of the delay may weigh in favour of an extension being granted. It is important to note that while reason for delay is a factor that must be considered it is not determinative and consideration must be given to all the relevant factors and assigning appropriate weight to each. 5
[11] It is difficult to discern the precise reason for the delay relied upon by the Applicant. In his originating application, the Applicant explained the delay as follows:
“There was a subsequent meeting to sort out unfair dismissal. The company was willing to make a settlement but this was not effectively honoured.
Prior to this certain Julalikari Managers were keen to still see my employed.”
[12] So, it seems, the reason for delay originally relied upon by the Applicant was that a settlement was reached between the parties but that there has been a subsequent dispute regarding compliance with those terms.
[13] In his material in response to the Commission’s directions, the Applicant recounted the following timeline of events from the day of dismissal:
“On the 14th January 2019 I was called into the office of the Respondent was told I was to be dismissed (letter of termination attached as Annexure C).
Issues around my workplace performance had not been raised prior to this date.
On the 16th January I was texted by CEO Allan McGill as he was keen to arrange a final inspection of the property I lived in despite my having a lease
On the 17th of January Allan McGill offered an airfare of $1000, Mortgage Penalty $100, Relocation of $100, no rent to 31/1/19 as a negotiated outcome for me to settle my termination.
I rewrote what I considered fair and reasonable given my treatment and this was reiterated in my texts and phone calls. On the same day Allan advised he would not accept my offer so I asked for a meeting to consider my position.
On the 17th January I was advised if I do not accept the CEO offer then it lapses
On the 17th January I requested a face to face meeting with the CEO with a support person, given I wasn’t afforded one previously, so we could sort it out.
On the 18th January I along with support person Ross Williams met with CEO Allan McGill and Finance Officer Bruce Mann to discuss concerns around my employment. A Deed of Agreement was being discussed.
On the 18th January I advised I could not sign the agreement as I needed to read the lengthy material and seek external advice. (A copy of the agreement is attached as Annexure D).
On the 20th January 2019 I advised Allan McGill certain parts of the agreement were not in there as discussed; namely the flight from Tennant Creek to Alice Springs. This was never rectified.
On the 21st January I advised the Respondent that I was too caught up to sign agreement as I was in the middle of finding a job and housing but also dealing with my father’s cancer.
On the 21st January Allan McGill sent a message stating the agreement needs to be signed without delay; he advised I could lose agreement all together and also they could terminate my housing as they controlled the lease given it was within their right. (A copy of the sms/ e-mail attached as Annexure E).
On the 22nd January I signed the agreement under duress as I just wanted to get back to Townsville to deal with my father’s support.
On the 30th January I asked Allan McGill whether I was paid correctly (in terms of the agreement) and it is only at that time I was provided with a final payslip. (A copy of my final payslip is attached as Annexure F.)
I was not paid correctly and made this known to Julalikari on the 30th January 2019 by phone. My removal costs were taxed as wages.
Not being paid correctly greatly affected my ability to move equipment albeit against a backdrop of a 100 year flood which restricted transport to move gear from Tenant Creek to Townsville, which is my home town.
Julalikari were in control of my housing, my employment, my unemployment, my payout given their organisation’s status in Tennant Creek representing all stated. I was stuck.
On the 4th February my flights weren’t honoured timely as per deed agreement
I was stuck in the city given flooding and therefore had difficulty moving gear; the CEO Allan McGill pressured me to move out of the house on several occasions despite having a lease in place. (Copy of e-mail from CEO demanding I move out earlier attached as Annexure G).
The organization was aware that I also kept on paying rent despite my dismissal as indicated in my payslip, Annexure F.
Through this period I was looking for employment to improve my situation. I had to look outside Tennant Creek for employment as the Respondent is the biggest provider of employment in that town. I had to be able to leave to pursue other employment options.
I was not provided with a separation certificate which was discussed with the Respondent, on 2 separate occasions and I was not able to be considered for Centrelink support from the 21st Jan 2019 and only was considered the 25th Mar 2019 which I have evidence of. I have since subsequently registered this with Human Services. This compounded an already stressful situation.
I was relying on the Respondent to do the right thing, provide me with the right paperwork and honour their undertakings as per the deed that I signed. They did not do that and I only then applied for this general protection claim” (errors in original; my emphasis added)
[14] I do not consider that the Applicant has provided a credible explanation for any period of the delay. While the Applicant has asserted a number of matters, which I understand he relies upon as supporting the delay, I find that the real reason for the delay is revealed in the submissions of the Applicant above that I have highlighted. The Applicant only filed his application when he felt the Respondent was not complying with the terms of the deed. While there may be some question as to whether the Applicant has released the Respondent from the claim, discussed below, in terms of explanation for the delay I do not consider this reason an acceptable reason for the delay.
[15] In so far as the Applicant asserts that the floods in Townsville contributed to the delay, the evidence indicates that the Applicant was not in Townsville for the period of the delay and was, in fact, in Tennant Creek. The Applicant does not assert that during that period he was without access to phone or the internet. On the material before the Commission it seems he continued to have access to both.
[16] Similarly, while the Applicant relies upon his father’s poor health in the period, there is no evidence that the Applicant was so heavily involved in the care for his father that he was prevented from filing an application. Indeed on the Applicant’s own material, his father was in hospital in Townsville, while the Applicant remained in Tennant Creek. It was no doubt a distressing scenario for the Applicant. Naturally, one with the Applicant on all of these matters. However, they regrettably do not explain the delay in filing the application for the purposes of this section of the Act.
[17] This factor weighs against an extension of time.
Any action taken by the Applicant to dispute the dismissal – s. 366(2)(b)
[18] While it does not appear that the Applicant has specifically asserted at any point prior to the filing of his application that the dismissal was for a prohibited reason, I am prepared to accept that the material discloses that the Applicant was expressing his displeasure at what he considered to be the poor manner in which he had been treated by the Respondent from as early as the day on which he was notified he was dismissed. This factor weighs in favour of an extension of time.
Prejudice to the Respondent including prejudice caused by the delay – s. 366(2)(c)
[19] Prejudice to the employer will go against an extension of time; however the absence of prejudice is an insufficient basis, on its own, for an extension. 6 The employer must produce evidence to demonstrate prejudice and it is up to the Applicant for an extension of time to counter that prejudice.7
[20] The Respondent asserts that it would be unfair to grant an extension of time to the Applicant in circumstances where he has not provided evidence to establish the reason for the delay. The Respondent submits that it is a charity and it will amount to a prejudice for it to expend funds and time on defending “the baseless and unfair claim”. This amounts to no greater prejudice than is ordinarily attendant with defending proceedings. The Respondent has not lead evidence to establish a prejudice beyond this.
[21] The delay is relatively short and in the absence of evidence from the Respondent, in my view, this criterion weighs in favour of granting an extension of time.
The merits of the application – s. 366(2)(d)
[22] In Kornicki v Telstra-Network Technology Group 8 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
[23] Setting aside for one moment the merit or otherwise of the Applicant’s substantive application, a significant hurdle for the Applicant is that he accepts that he has entered into a compromise of his claim; albeit that he has alleged he did so under duress.
[24] Annexure D to the Applicant’s material is a document styled “Settlement Agreement and Deed of Release” (the Deed). The Deed is said to be made on 18 January 2019 and is between the Applicant, as employee, and the Respondent, as employer. The recitals record that the Applicant was employment from 4 November 2018 and that his employment was terminated in 14 January 2019 “due to unsuccessful probation”. The Deed records that “[W]ithout admission of liability, the parties have agreed to fully and finally settle all matters arising out of an in connection with the Termination” on the terms contained therein.
[25] Importantly, the Deed contains a release in fairly standard terms as follows:
“On the Employer complying with clauses 2.1 to 2.8 above, the Employee releases and forever discharged and releases the Employer, its directors, applicants, assignees or successors from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Employee’s employment with the Employer, including but not limited to the cessation of the employer.” (errors in original)
[26] It is clear that the Applicant does not accept that the Respondent has complied with its obligations under the Deed. The Commission is not a Court and cannot deal with questions of breach of contract or remedies that may flow from any breach. However, for present purposes, if an extension of time were granted, there is a strong argument that the Applicant has otherwise compromised his claim by the terms of the Deed. This is a factor that weighs against granting further time for lodgement.
[27] More substantively, on the material presently before the Commission the alleged contravention appears weak.
[28] In the originating application, the Applicant asserts that the actions of the Respondent have contravened the general protections provisions by:
“Dismissed me and not others in the same predicament
Bullied me in terms of my housing lease, agreement discussions and tone.
Never remunerated me appropriately.”
[29] In his material in response to the directions the Applicant states he was dismissed:
“…because of direct discrimination. I was treated unfairly in my job because I was brought before the courts due to my own behaviour and was not provided the presumption of innocence by my employer which was advised by my barrister and passed onto the CEO.”
[30] Further, in his closing submissions the Applicant asserts that at the meeting of 18 January 2019 the meeting was “to do with my unfair dismissal”.
[31] The Applicant is possibly confused between an unfair dismissal application and this type of application. This is not uncommon in these types of matters. The Applicant refers to discrimination in his material but does not directly identify a protected attribute, which he possesses, which makes any discrimination unlawful. Similarly, the Applicant also refers to “workplace rights” but does not identify what workplace right he relies upon or how it fits within the structure of his claims. From the Applicant’s material it is quite clear that he feels he has been treated very poorly by the Respondent but that is not relevant to a general protections claim. At best, on the limited material presently before the Commission, I could not conclude that the Applicant’s claim was entirely without merit but I would not put his prospects any higher than modest.
[32] The combination of the issue in relation to the Deed and the merits more broadly, in my view, weigh against an extension of time being granted.
Fairness as between the Applicant and other persons in a like position – s. 366(2)(e)
[33] The Applicant asserts that this criterion is relevant in that another employee was before the Courts on the same day for the same issue but that the other employee was not dismissed. This submission misunderstands the criterion.
[34] This criterion may relate to fairness in matters of a similar kind that a currently before the Commission or have been decided in the past. 9 I do not understand the Applicant to assert that there are any other cases currently before the Commission of a similar kind, or past cases of a similar kind that have been decided. This is a neutral factor in my determination.
CONCLUSION
[35] The test of exceptional circumstances is a high hurdle. For the reasons given above, I am not satisfied that there are exceptional circumstances taking into account the matters in s. 366(2) of the Act such that an extension of time should be granted. The application must be dismissed and an Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr Stephen Hirvonen on his own behalf.
Mr Patrick Cozens and Ms Kendra Frew on behalf of the Respondent
Hearing details:
11 April 2019
Printed by authority of the Commonwealth Government Printer
<PR708474>
1 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
2 Halls v McCardle and Ors [2014] FCCA 316.
3 Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/a Joy Mining Machinery [2010] FWA 1394.
4 Nulty v Blue Star Group [2011] FWAFB 975 at [13].
5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at [39].
6 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
7 Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547.
8 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
9 Wilson v Woolworths [2010] FWA 2480 (unreported, Richards SDP< 15 April 2010) at [24] to [29].
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