Nicholas Price v Prices Bakery Pty Ltd T/A Prices Bakery

[2018] FWC 1964

[2018] FWC 1964

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Nicholas Price
v
Prices Bakery Pty Ltd T/A Prices Bakery
(C2018/666)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 5 APRIL 2018

Application to deal with contraventions involving dismissal – whether to extend time for lodging the application.

[1] On 8 February 2018 Mr Nicholas Price (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is Prices Bakery Pty Ltd T/A Prices Bakery (Respondent).

[2] The Applicant commenced employment with the Respondent on 1 July 2013. He submitted that he was a director of the Respondent however was also employed as a baker. He says that was dismissed on 13 December 2017 and the dismissal took effect on that day. 1

[3] The application therefore was lodged 36 days out of time.

[4] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Alleged Contravention

[5] The Applicant submitted that he was dismissed because he had taken personal leave 2. A breach of s.340, s.344, s.346 and s.352 is alleged.

[6] The Respondent submitted that Mr Price was not dismissed as he was not an employee. 3

Procedural background

[7] On 13 February 2018, the parties were advised by 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 23 March 2018.

[8] The Applicant sought permission to be represented by a lawyer or paid agent. I was not satisfied that any of the criteria in section 596(2) of the Act were met and accordingly permission was refused. The Respondent was represented by Mr Matthew Lee, director.

Legislative scheme

[9] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

“(1) The application 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).”

[10] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

“(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.”

[11] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 4where the Full Bench said:

“[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.” (endnotes not reproduced)

[12] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[13] 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. The onus of establishing exceptional circumstances is on the Applicant.

[14] In the decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 5 the Full Bench made the following statement which, although concerned with the unfair dismissal application, 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.”

[15] I will now deal with each of the matters to be taken into account pursuant to s.366(2) separately.

(a) The reason for the delay

[16] For this consideration there must be an acceptable reason for the delay. 6

[17] Mr Price lodged an application for unfair dismissal remedy on 9 January 2018. This was 27 days after his dismissal took effect, however Mr Price’s application did not proceed to an extension of time hearing as the termination date listed on this application was 19 December 2017.

[18] A review of the Commission’s file management system shows that Mr Price subsequently contacted the Commission on 6 February 2018 to advise that he was discontinuing his unfair dismissal application. This email states that the Applicant had great concern to lodge his application within time however had since been advised that an adverse action claim would be more appropriate in the circumstances. Mr Price’s general protections application was then lodged on 8 February 2018.

[19] Mr Price submitted that his father had passed away on 16 October 2017 and that this passing left him shocked and overwhelmed. He submitted that his dismissal further added to his misery and left him unable to cope and function effectively. 7

[20] Mr Price’s oral evidence was that he was suffering from depression and did not have the capacity to lodge the applications himself due to a lack of computer skills. He gave evidence that his mother and sister had assisted him in the lodgement of his applications.

[21] The prior lodgement of an erroneous application to the Commission has been considered an acceptable reason for the delay in lodgement of a second application. 8 Upon realising that an incorrect application has been made it is incumbent on the applicant to act swiftly in making the correct application.9

[22] However I am not satisfied that this is a circumstance where an erroneous application has been lodged. Mr Price provided no explanation as to why his unfair dismissal application was an incorrect application to lodge, and instead submitted that after his initial application was lodged his mother and sister did some research and determined that a general protections application was a better application. He submitted that this was due to the complexities of the matter and his joint employee and director status.

[23] Mr Price was aware of the 21 day time period required for lodging an application. Further, Mr Price was in receipt of legal advice regarding his circumstances with the Respondent. 10 His oral evidence was that he was speaking to his legal representative prior to Christmas. He could not provide any explanation as to why he did not seek advice from his legal representative regarding the appropriate application to make.

[24] Further, once Mr Price had advised the Commission that it was his intention to discontinue his unfair dismissal application and lodge a general protections application, it was a further two days before this application was lodged.

[25] If an applicant is able to provide a credible explanation for the entirety of the delay this will weigh more heavily towards a finding of exceptional circumstances. Conversely, if an applicant fails to provide a credible explanation for any part of the delay, that would tend to weigh against a finding of exceptional circumstances. 11

[26] Whilst I am sympathetic to Mr Price’s personal circumstances, I am not satisfied that the reasons provided by Mr Price constitute an acceptable reason for the delay. This weighs against a finding of exceptional circumstances.

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

[27] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time.¹²

[28] The Applicant submitted that upon being notified of his dismissal he lodged an unfair dismissal application. He also submitted that a letter was sent on his behalf from TEJ Law challenging his treatment and raising possible breaches of the Corporations Act. 13

[29] The Respondent submitted that they had received numerous letters and emails from the Applicant’s legal representatives and his sister acting as a proxy asserting that Mr Price had been an employee and had been dismissed, however submitted that Mr Price had taken no steps to dispute his dismissal.

[30] I am satisfied that the steps taken by Mr Price to dispute his dismissal weigh in favour of a finding of exceptional circumstances.

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

[31] Prejudice to the employer will go against the granting of an extension of time. 14

[32] The Applicant submitted that the lateness of his application had not caused the Respondent any disadvantage. 15 His oral submission was that there was no prejudice to the employer as the business had now closed.

[33] Mr Lee submitted, and it is not in contention, that the business had closed as of 9 February 2018. He submitted that creditors and staff entitlements had been paid in full from his own personal funds. 16 Should this be the case, an application against a deregistered company may not be able to proceed except with leave of the court.

[34] I find this criterion to be neutral.

(d) Merits of the application

[35] Mr Price submitted that his dismissal was unfair as he had been provided with no prior warning regarding any of the Respondent’s concerns and had been given no opportunity to respond. 17 He submitted that he had been placed under enormous pressure and had been constantly watched, reported on and made to feel uncomfortable in the workplace.18

[36] On 10 December 2017, Mr Price submitted that he received notification of an emergency board meeting and was advised that he was not required to attend work from 11 to 13 December 2017. He submitted that he received a medical certificate from his doctor on 13 December 2017 providing that he was unable to work, however the other directors of the Respondent held the meeting in his absence and made him a non-active director. 19

[37] The Respondent submitted that the Applicant was not an employee, and was instead a director. They also submitted that he was not dismissed but instead was made a non-active director and subsequently resigned on 31 December 2017. 20

[38] The Commission is not required to make a determination that an Applicant has been dismissed before holding a conference under section 368 of the Act. It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1. 21

[39] The Respondent further submitted that the Applicant was made a non-active director for a variety of performance concerns as well as the misappropriation of corporate funds. 22

[40] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 23 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.24 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

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

[41] Mr Price submitted that his situation is unique as he was both a former director and employee. 25

[42] The Respondent submitted that the time frame to lodge an application should be upheld as it was the same time frame given to all other applicants in Australia.

[43] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 26 However, there were no submissions that there is, or has been, any persons in a similar position to Mr Price. I therefore find this criterion to be neutral.

Conclusion

[44] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[45] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 27

[46] Having considered all of the evidence and submissions against each 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 application is dismissed.

[47] An order 28 to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

N. Price for the Applicant;

M. Lee for the Respondent.

Hearing details:

2018

23 March (telephone hearing)

Printed by authority of the Commonwealth Government Printer

<PR601747>

 1   Exhibit A1

 2   Exhibit A1

 3   Exhibit R1

 4   [2011] FWAFB 975.

 5   [2016] FWCFB 349

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

 7   Exhibit A1

 8   Lane v Kangaroo Island Drive & Adventures Pty Ltd[2010] FWA 3939 at [13]; Nash v Discovery Holiday Parks Barossa – Tanunda[2015] FWC 380 at [9] – [10]

 9   Kelly v The Alphabet Academy Sydney Pty Ltd T/A The Alphabet Academy[2017] FWC 3090 at [15]

 10   Exhibit A1

 11   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [45]

12 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 13   Exhibit A1

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

 15   Exhibit A1

 16   Exhibit R1

 17   Form F8 – General protections application involving dismissal

 18   Ibid

 19   Exhibit A1

 20   Form F8A – Employer response to general protections application

 21   Hewitt v Topero Nominees Pty Ltd t/a Michaels Camera Video Digital [2013] FWCFB 6321 at [50]

 22   Form F8A – Employer response to general protections application; Exhibit R1

 23   Haining v Deputy President Drake (1998) 87 FCR 248, 250

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

 25   Exhibit A1

 26   Wilson v Woolworths [2010] FWA 2480, [24]-[29]

 27   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

 28   PR601748