Nathan Hampel v Cooper & Oxley Builders Pty Ltd T/A Cooper & Oxley

[2017] FWC 1635

[2017] FWC 1635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Nathan Hampel
v
Cooper & Oxley Builders Pty Ltd T/A Cooper & Oxley
(C2017/209); (C2017/616)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 24 MARCH 2017

Application to deal with contraventions involving dismissal – s.365.

Introduction

The First Application (2017/209)

[1] On 11 January 2017 Mr Nathan Hampel (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Cooper Oxley Builders Pty Ltd T/A Cooper & Oxley (the Respondent).

[2] The Applicant commenced employment with the Respondent in March 2010. The Applicant was employed in the Respondent’s construction industry business in Perth. In this application, he says that he was dismissed on 16 December 2016 and the dismissal took effect on that day

[3] This application was lodged five days out of time.

Alleged Contravention

[4] The Applicant submits that he was dismissed because he was seeking to exercise a workplace right and was treated unfairly by the Respondent. Breaches of ss.340, 351, in respect of mental disability, and s.352 are alleged.

Respondent’s Submissions

[5] The Respondent denies these allegations and further denies that there has been a breach of the General Protections provisions of the Act.

[6] The Respondent states that the Applicant had behaved in an aggressive and abusive manner towards some of the staff of the Respondent. The Applicant was given a final warning and required to undertake counselling. The Applicant did not co-operate. The Applicant was therefore dismissed because of his behaviour and failure to comply with the Respondent’s conditions imposed with respect to his return to work.

[7] The Respondent’s termination letter was dated 16 December 2016. It stated:

“As the working relationship has broken down, the Company does not require you to work out the notice period, making the termination of your employment effective on 16 December 2016”.

Second Application (C2017/616)

[8] A second application (C2017/616) was lodged on behalf of the Applicant on 3 February 2017 by his solicitors. This application stated that the date of effect of the Applicant’s dismissal was 16 January 2017.

[9] Attached to this application was a document which stated that the Applicant had made a series of complaints to the Respondent about his workplace rights and employment generally, dating from August 2016.

[10] It was also stated that the Respondent’s termination letter was delivered by courier to the Applicant’s home on 16 December 2016 but not seen by the Applicant until 19 December 2016. It was also stated that the letter, combined with the Applicant’s contract of employment meant that one month’s notice had to be given. The dismissal therefore took effect on 16 January 2017, it was argued. The Applicant did not challenge the dismissal, until an email sent on 12 January 2017, that is, after the first application was lodged.

[11] It was also alleged that the Applicant was absent from work because of a mental disability from 17 October 2016 until his dismissal and that this was a reason for his dismissal.

[12] Correspondence was also sent to the Registry on 8 February 2017 referring to the first application as the “Nominal Application” but no application was made to discontinue it. In any event, the Applicant’s case was that the date of effect of the dismissal was 16 January 2017. The second application was therefore in time, it was submitted. Alternatively if the Commission found that the dismissal took effect on 16 December, or indeed 19 December, an extension of time should be granted pursuant to s.366(2).

Relevant Legislation

[13] Section 366 of the Act provides:

366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(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.”

Approach of the Commission

[14] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[15] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[16] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … 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.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. 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. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ  the correct approach.”

Commission Proceedings

[17] On 2 February 2017, the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 14 February 2017.

[18] The Applicant was represented by Mr D. Howlett of counsel and Mr M. Muk, solicitor. Both were granted permission to appear pursuant to s.596 of the Act. The Respondent was represented by Ms A. Cameron of the Chamber of Commerce and Industry of Western Australia.

Date of Effect of the Dismissal

[19] I am satisfied that the date of effect of the dismissal was 16 December 2016. This was made very clear in the 16 December 2016 letter by virtue of the extract which is quoted in paragraph 7 above. The first paragraph also stated that “your employment is terminated with effect from today.” The Applicant should have understood that he was being paid in lieu of notice and was not required to work the notice period, even though those precise words were not used. The Respondent could also have reasonably expected that the Applicant would see the dismissal letter when it was served by courier on 16 December (see: Ayub v NSW Trains (2016) FWCFB 5500. In any event, even if 19 December (when the Applicant admits he saw the dismissal letter) was treated as the date of effect of the dismissal, an extension would be required.

[20] When the first application was lodged, the Applicant stated that the date of effect of the dismissal was 16 December. He appears to have retrospectively changed his view on the basis of legal advice.

[21] A termination payment was made to the Applicant on 22 December 2016 which was not challenged, at least initially. The Applicant did not attempt to return to work and did not communicate with the Respondent until after the first application was lodged.

Matters to be taken into account pursuant to s.366(2)

[22] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[23] I have determined that the date of effect of the dismissal was 16 December 2016. The substantive argument about the reason for delay by the Applicant related to his belief about the date of effect of dismissal, which I have rejected. Generalised submissions were made about the Christmas period and the Applicant’s medical problems but no specific evidence was provided.

[24] Accordingly, the reasons for delay cited by the Applicant fall short of establishing exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[25] There is no evidence of the Applicant taking action to challenge the dismissal before the first application was lodged.

[26] Accordingly, this is not a factor which weighs in favour of an extension of time.

(c) Prejudice to the employer (including prejudice caused by the delay)

[27] Given the lack of detail filed with respect to the merits, I have treated this factor as neutral.

(d) Merits of the application

[28] The Applicant has not disclosed, in the material lodged, the specific basis of his s.340 and s.351 claims, apart from his medical condition.

[29] The Respondent says that the Applicant was dismissed because of his unacceptable behaviour which created a danger in the workplace. It seems to me that the Respondent would have reasonable prospects of establishing that this was the operative reason for the dismissal.

[30] I do not consider that the merits of the application give weight to the existence of exceptional circumstances.

(e) Fairness as between the person and other persons in a like position

[31] This factor was not addressed and has not been taken into account.

Conclusion and Order

[32] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the first application (C2016/209) is dismissed. It follows also that the second application (C2016/616) is also dismissed.

Orders

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the Fair Work Commission makes the following Orders:

1. The application (C2017/209) made by Nathan Hampel under s.365 of the Act is dismissed.

2. The application (C2017/616) made by Nathan Hampel under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

D. Howlett of counsel with M. Muk, solicitor for the Applicant;

A. Cameron for the Respondent.

Hearing details:

(Telephone Hearing)

February 4.

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