Mr Wade Rose v Solar Brothers Pty Ltd T/A Sunterra

[2016] FWC 3979

[2016] FWC 3979

FAIR WORK COMMISSION

DECISION

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

Mr Wade Rose
v
Solar Brothers Pty Ltd T/A Sunterra
(C2016/1102)

COMMISSIONER SAUNDERS NEWCASTLE, 21 JUNE 2016

Application to deal with a general protections application involving a dismissal – extension of time.

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

The jurisdictional objection

[3] On 20 June 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant gave oral evidence and tendered some documents in support of his application to extend time. The respondent called oral evidence from its Managing Director, Mr Wang.

Legislative scheme

[5] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make 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 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. 3 In 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) - reason for the delay

[7] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 4 A dismissal can be communicated orally.5

[8] There must be an acceptable reason for the delay in making the general protections application. 6

[9] The applicant must provide a credible reason for the whole of the period that the application was delayed. 7

[10] 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. 8 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:9

“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

[11] There is no dispute and I am satisfied on the evidence that the applicant was dismissed on 22 April 2016. The applicant was informed of his dismissal on that day.

[12] The 21 day time period for the applicant to make his general protections application expired on 13 May 2016. 10 Given that the applicant completed his Application on 18 May 2016 and it was lodged with the Commission on the same date, the Application was made five days late.11

[13] In accordance with the principles summarised in paragraphs [7] to [10] 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 13 to 18 May 2016. However, the circumstances from the time of the dismissal (22 April 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.

[14] The applicant relies on the combination of the following reasons for the delay in filing his Application:

(a) The applicant was aware of there being a 21 day time limit for him to make his Application. To that end, the applicant registered on the Commission’s website as an eFiling User on 10 May 2016. The applicant then tried to complete an application form online, but he was unable to do so as a consequence of his lack of computer skills. On 12 May 2016, the applicant electronically filed a document with the Commission. The document he filed was not a Form F8 – General Protections Application Involving a Dismissal. The applicant’s lack of computer skills prevented him from being able to complete and electronically file such a document. Instead, the applicant sent an email to the Commission in the following terms, together with two copies of his resume:

“im not to sure how or where to find the documents required to upload on this form, but would like to proceed until I obtain some guidance on how to obtain them”

The applicant gave oral evidence, which I accept, to the effect that he filed (electronically) two copies of his resume in the Commission on 12 May 2016 because the electronic lodgement system he was using would not let him lodge an application without a document being attached to it. Because the applicant could not work out how to complete an Application form, he thought that if he at least lodged a document, being his resume, it would show that he had done his best to lodge his Application within time;

(b) Later on 12 May 2016, the applicant received an email from “[email protected]” in the following terms:

“This message, with the electronic document(s) attached has been dispatched to the email address(es) specified above. For the purpose of rule 15, this is NOT an acknowledgement that your document is taken to have been filed with the Fair Work Commission. You will be subsequently advised whether your document is taken to have been filed…

The documents will be manually checked against the Rules of the Fair Work Commission as soon as possible and you will be advised by email of any anomaly…”

(c) On about 12 May 2016 (after receiving the email referred to in the previous subparagraph), the applicant received a telephone call from an employee of the Commission. To the best of the applicant’s recollection, the name of the employee to whom he spoke was Emma. The applicant gave evidence, which I accept, that Emma said to him words to the following effect: “It should go on the record that you have made a claim within the 21 day period, but you need to complete the correct form and submit it. That should be done as soon as possible”;

(d) Following the applicant’s telephone discussion with Emma on about 12 May 2016, she emailed a copy of the Form F8 – General Protections Application Involving a Dismissal to him. Given his earlier lack of success in finding and completing the right form, the applicant asked his aunty for help to complete the form. The applicant saw his aunty at the first available opportunity. She assisted him to complete the form. The applicant then faxed his Application to the Commission on 18 May 2016. The Application was lodged five days late because the documents lodged by the applicant with the Commission on 12 May 2016 were neither in the approved form nor were they substantially in accordance with the approved form, 12 with the result that no valid application was actually filed by the applicant on 12 May 2016; and

(e) Based on what Emma told the applicant on about 12 May 2016, as set out in subparagraph [14(c)] above, the applicant believed, reasonably in my view, that he had filed an a general protections application within the 21 day period.

[15] Based on a combination of the reasons set out in the previous paragraph, I am satisfied that the applicant has provided an acceptable explanation for his delay in making his Application. In my view, the applicant’s difficulties in making his Application within the 21 day time limit were out of the ordinary course, unusual, special and uncommon.

[16] This factor supports granting the applicant an extension of time.

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

[17] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 13

[18] The applicant concedes that he did not take any action to dispute his 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)

[19] Prejudice to the employer will weigh against granting an extension of time. 14 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.15

[20] A long delay gives rise “to a general presumption of prejudice”. 16

[21] 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. 17 No such evidence was adduced by the respondent in this case.

[22] Noting that the delay was five 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

[23] In Kornicki v Telstra-Network Technology Group 18the Commission considered the principles applicable to the extension of time discretion under the former section 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 lodgment. 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.” 19

[24] Some evidence on the merits was adduced from the applicant and Mr Wang in the extension of time hearing. However, a full hearing on the merits of the general protections claims would involve significantly more evidence from a range of witnesses. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 20 for the purpose of determining whether to grant an extension of time to the applicant to lodge his Application.

[25] I adopt this approach in relation to my consideration of the merits of the Application.

[26] The applicant submits that he was dismissed because he was temporarily absent from work (s.352 of the Act) and because he made a complaint about not being paid correctly (s.340 of the Act). Further, the applicant contends that he was asked to resign and recommence as a contractor. The respondent denies those allegations and says that it terminated the applicant’s employment on the grounds set out in the letter of termination.

[27] I am satisfied that the applicant’s substantive general protections claims are not without merit. However, the outcome of those claims will depend on the resolution of factual disputes between the parties concerning the reasons for the respondent’s actions. Those claims have not been tested in any comprehensive way. Accordingly, I consider this criterion to be neutral.

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

[28] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 21 considered this criterion and said (at [29]) “cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission”.

[29] I am satisfied that the issue of fairness as between the applicant and other persons in a similar position is not a relevant consideration in this matter.

[30] Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[31] Having taken into account the matters referred to in paragraphs [11] to [30] above, I am, on balance, satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. For the reasons set out above, the applicant’s circumstances were out of the ordinary course, unusual, special and uncommon. I am particularly influenced by the reasons for the delay and the applicant's clear attempts to lodge his Application within time, and his unfortunate failure to do so.

[32] Accordingly, the application for an extension of time to 18 May 2016 is granted. An order giving effect to this decision will be issued separately in PR581917.

COMMISSIONER

Appearances:

Mr W Rose, on his own behalf.

Mr D Wang on behalf of the respondent.

Hearing details:

2016.

Newcastle:

June, 20.

 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   Section 366(2) of the Act.

 3 [2011] 203 IR 1

 4   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 at [24].

 5   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.

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

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

 8   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]

 9   [2016] FWCFB 349 at [31]

 10   That is, 21 days from 22 April 2016 (not including 22 April) is 13 May 2016.

 11   That is, 18 May 2016 is 5 days after 13 May 2016.

 12   Rule 8, Fair Work Commission Rules

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

 14   Ibid.

 15   Ibid.

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

 17   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

 18   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 19   Ibid.

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

 21   [2015] FWC 8885

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<Price code C, PR581803>