Myles Nyawasha v E & S Trading Co

[2019] FWC 4078

[2019] FWC 4078

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Myles Nyawasha
v
E & S Trading Co
(C2019/2017)

DEPUTY PRESIDENT BOYCE SYDNEY, 13 JUNE 2019

Application to deal with contraventions involving dismissal – request for extension of time to file application - applicant first filed unfair dismissal claim that was within jurisdiction – later withdrew unfair dismissal application and filed general protections application - application filed 75 days out of time – no reasonable explanation for lengthy delay - not a strong case on merits – no exceptional circumstances – extension of time refused.

[1] On 27 March 2019, Mr Myles Nyawasha (“Applicant”) lodged an application in the Fair Work Commission (“Commission”) pursuant to s.365 of the Fair Work Act 2009 (Cth)(“Act”). The Applicant did so by filing a Form F8 through the Commission’s website (“General Protections Application”).

[2] The Applicant claimed that his employment with E & S Trading Co (Discounts) Pty Ltd (“Respondent”) was terminated by the Respondent on 11 January 2019 in contravention of Part 3-1 of the Act. The Applicant’s employment with the Respondent commenced on or about 3 July 2017.

[3] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow. 1 The 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.2

[4] The Applicant acknowledges that he lodged his application 75 days outside of the statutory time limit. To be within time, the Applicant should have lodged his Application on or before 1 February 2019.

[5] On 24 May 2019, I convened a hearing to determine whether to allow the Applicant an additional period within which to lodge his Application.

[6] The Applicant represented himself at the Hearing. The Respondent was represented by Mr Nick Tindley of the FCB Group. Permission was granted to Mr Tindley to represent the Respondent and appear at the hearing on the basis that I was satisfied that the matter would be conducted on a more efficient basis (i.e. in short, having one party legally represented is better than neither party being legally represented). The Applicant did not object to Mr Tindley being granted permission to appear.

[7] At the hearing, I delivered an ex tempore decision and determined that the Applicant’s request for an extension of time be dismissed. These are the reasons for that decision.

Matters to be taken into account

[8] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are provided for by s.366(2) of the Act, which reads:

“366 Time for application

…

(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 test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 3 A decision whether to extend time under s.366(2) involves the exercise of a discretion.4

[10] Section 366(2) makes clear that each of the matters set out therein need to be taken into account in assessing whether there are exceptional circumstances. The meaning of “exceptional circumstances” in s.366(1) was considered by a Full Bench of the (then) Fair Work Australia in Nulty v Blue Star Group Pty Ltd  5 (Nulty)as follows:

“[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.”

[14]Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.” (emphasis added)

[11] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no individual factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional. 6

[12] I now turn to address the particular matters to which regard must be had.

Reason for the delay

[13] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.

[14] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired, and ending on the day on which an application is ultimately lodged.

[15] That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 7 

[16] The Applicant submitted that there were, in summary, three reasons for his delay in lodging his General Protections Application.

[17] Firstly, the Applicant was “misled” by a staff member of the Fair Work Ombudsman helpline who allegedly advised him to file an unfair dismissal application disputing his dismissal. However, it is not clear how the Applicant was “misled” in circumstances where his unfair dismissal application was within jurisdiction (i.e. his employment with the Respondent extended beyond the “minimum period of employment” and the Respondent took no jurisdictional objection to the Applicant’s unfair dismissal application). The unfair dismissal application was filed on 30 January 2019 (i.e. within 21 days of the Applicant’s dismissal on 11 January 2019). Conciliation of that application occurred before a conciliator of the Commission on 1 March 2019. After conciliation failed to resolve the matter, the Applicant formally withdrew his unfair dismissal application on 7 March 2019, and later filed his General Protections Application on 27 March 2019 (i.e. 75 days out of time).

[18] Secondly, at the time of filing his unfair dismissal application, and later when he filed his General Protections Application, the Applicant was allegedly suffering from an unspecified anxiety condition.

[19] Thirdly, there had been a death in the Applicant’s family, allegedly being his brother-in-law. When pressed on this issue, the Applicant advised that such death occurred in April 2019, being a time after the Applicant filed his General Protections Application.

[20] None of the foregoing reasons provide any reasonable or credible explanation for the Applicant’s delay in filing his General Protections Application. In regard to the first reason, there is no explanation from the Applicant as to why he withdrew his unfair dismissal application (that was filed within time and within jurisdiction) and later filed his General Protections Application 75 days out of time. 8 The second reason was advanced in circumstances where there was no evidence to support the Applicant’s assertions of an anxiety condition at the relevant time, let alone evidence that such a condition hindered or otherwise prohibited the Applicant filing his General Protections Application (especially in circumstances where the Applicant was able to file his unfair dismissal application within time whilst allegedly suffering from such anxiety condition).9 The third reason does not warrant consideration as it occurred post the filing of the General Protections Application (neither was it supported by any evidence, nor asserted as a reason for delay in any material filed prior to the hearing).

[21] In passing I note that the Applicant also asserted he was not aware of the 21 day time limit to lodge his General Protections Application. I do not accept this as credible given the Applicant did file his unfair dismissal application within time. Further, I do not accept that such a reason in the circumstances of this case gives rise to anything exceptional.

[22] In view of the above, I consider there to be no adequate explanation for the 75 day delay giving rise to, or supporting, a finding as to exceptional circumstances.

Action taken by the Applicant to dispute the dismissal

[23] The Applicant first took action to dispute his dismissal by filing his Unfair Dismissal Application. However, given the Applicant later withdrew that application, at best it is a neutral factor in determining the existence of exceptional circumstances.

Prejudice to the employer

[24] The Applicant did not address this issue. The Respondent raised the usual issues around time and cost flowing from the delay. In this case, such issues are significant in circumstances where the Respondent has had to respond to both an unfair dismissal application and a general protections application, attend a conciliation over the unfair dismissal application, and engage with this out of time application (in relation to the latter, even if a Respondent does not oppose an out of time request, the Commission must still determine whether an extension of time ought be granted. Hence, a Respondent really has no choice but to engage with a request for extension of time).

[25] The foregoing circumstances are extraordinary and weigh in favour of a finding against exceptional circumstances. The intention of the Act is that a challenge to a dismissal (pursuant to statutory provisions) not be made via multiple or separate claims that are within jurisdiction. 10 Whilst any claim challenging a dismissal is prejudicial in terms of the time and cost to a respondent in having to resist or defend such a claim, additional prejudice has been visited upon the Respondent in this matter in having to formally deal and engage with two separate claims by the Applicant.11

Merits of the application

[26] Despite struggling to articulate the merits of his case on the questions of liability and damage, it appears that the Applicant alleges that he was “dismissed” (taken adverse action against) because he suffered from an alleged disability (being sleep apnoea and/or an injured knee), and that such disability caused him to be persistently late to work, and necessitated him taking “sick leave” on a regular basis. The Applicant also appears to assert that he was “bullied” by his colleagues and his manager.

[27] The Respondent submits that it was not made aware of the Applicant’s alleged sleep apnoea condition until the Applicant raised its existence with the Fair Work Commission. Further, no evidence has been filed regarding the actual existence of such a condition. The Respondent further submits that the reason for the Applicant’s dismissal was not his taking of sick leave, but his manipulation of leave (i.e. absenting himself from the workplace without authorisation, including to take a two week overseas holiday), and being constantly late for work absent any explanation, or any reasonable explanation (despite the Applicant repeatedly being given an opportunity to correct such time tardiness, and having his start time pushed back to later in the day at the Applicant’s request).

[28] Regarding the alleged disabilities, the Respondent resolutely rejects that they formed any reason for the Applicant’s dismissal.

[29] All in all, there is not enough evidence before me to determine the existence of any arguable claim by the Applicant. In this regard, despite the Form F8, the Applicant’s evidence, the Applicant’s written submissions, and his oral testimony and submissions at hearing, I struggle to identify even a basic prima face basis to the Applicant’s claims.

[30] As to the issue of alleged bullying, the Respondent rightly submitted that this is not an issue that, on the evidence and submissions of the Applicant, gives rise to any readily identifiable claim under Part 3-1 of the Act.

[31] The merits of the Application therefore weigh against any finding as to exceptional circumstances.

Fairness as between the Applicant and other persons in a like position

[32] I find this a neutral factor and one that not need play any role in determining the existence of exceptional circumstances in this matter.

Conclusion

[33] As is evident from the analysis above, the preponderance of matters that must be taken into account weigh against a conclusion that there are exceptional circumstances in this case. None of the factors weigh against this conclusion, and two factors weigh neutrally. I am therefore not persuaded that there are exceptional circumstances warranting an extension of time.

[34] The Applicant did not raise any issue which might persuade me to exercise my discretion otherwise notwithstanding that I might conclude that there are not exceptional circumstances. Nor am I aware of any persuasive discretionary consideration which would warrant an alternative conclusion.

[35] I do not find there are any exceptional circumstances warranting an extension of time in this matter.

[36] The Application is dismissed. Orders to that effect were issued on 24 May 2019. 12

DEPUTY PRESIDENT

Appearances:

The Applicant appeared for himself.

Mr Nick Tindley (FCB Group), for the Respondent.

Hearing details:

Friday, 24 May 2019, in Sydney.

Printed by authority of the Commonwealth Government Printer

<PR709280>

 1   Fair Work Act 2009 (Cth), s.366(1) and (2).

 2   See s.36 Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009; see s.40A of the Fair Work Act 2009 (Cth); Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd [2013] FWC 3593.

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 4   Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

 5   [2011] FWAFB 975.

 6   Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 at [13]; see also Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433; (2013) 218 FCR 25 at [65] (Greenwood J).

 7   See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]. See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

 8   See also McConnell v A & PM Fornataro T/A Tony’s Plumbing Service[2011] FWAFB 466 (unreported, Lawler VP, O’Callaghan SDP, Bissett C, 31 January 2011).

 9   See Aaron Smith v Signature Security Group[2010] FWA 7803 (at [15]-[20]); The Applicant v Origin Energy Ltd [2010] FWA 3181 (Hamberger SDP, 19 April 2010).

 10   Fair Work Act 2009 (Cth), Division 3, Subdivision B of Part 6-1.

 11   Note also Burke v Department of Agriculture, Fisheries and Forestry – Australian Quarantine and Inspection Service [2011] FWA 1386 (unreported, Simpson C, 4 March 2011). Permission to appeal refused: [2011] FWAFB 8480.

 12   PR708628.