Norman Schouten v Parkside Holdings Pty Ltd T/A Parkside Group

[2016] FWC 6798

[2016] FWC 6798

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Norman Schouten
v
Parkside Holdings Pty Ltd T/A Parkside Group
(C2016/4895)

DEPUTY PRESIDENT DEAN MELBOURNE, 21 SEPTEMBER 2016

Application to deal with contraventions involving dismissal.

[1] Mr Norman Schouten (the Applicant) was employed by Parkside Holdings Pty Ltd T/A Parkside Group (the Respondent) as a casual Mill Hand. His employment commenced on 14 March 2106 and was terminated on 15 June 2016. He alleged that the termination of his employment by the Respondent was in breach of the general protections provisions of the Fair Work Act 2009 (the Act). The Respondent denies the allegations, and alleges that the Applicant’s employment ended following failure of the Applicant to comply with work restrictions and instructions despite warnings issued on 6 June, 8 June and 9 June 2016.

[2] At the hearing I granted permission for the Respondent to be legally represented. I accepted the Respondent’s submission that it would enable the matter to be dealt with more efficiently. I also note that no objection was taken by the Applicant.

[3] Given the Applicant’s dismissal took effect on 15 June 2016, his general protections application lodged on 15 August 2016 was not made within 21 days of the date the dismissal took effect.

[4] The Fair Work Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 where 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.”

[6] 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) of the Act. Section 366 of the Act provides:

366 Time for application

(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).

(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.”

[7] I will deal with each of those matters separately.

Reason for the delay

[8] The Applicant gave evidence that the reason for the delay was that he was unaware that there was a time limit and had never dealt with this type of situation before. He also gave evidence that he was travelling regularly to attend medical and physiotherapist appointments due to a work related back injury.

[9] The Respondent submitted that the evidence of the Applicant regarding the reason for the delay did not demonstrate exceptional circumstances because:

a. Ignorance of the law is not an exceptional circumstance where extension of time should be granted.

b. Attending doctors and physiotherapy appointments were not exceptional circumstances that prevented the Applicant from lodging an application within time.

[10] I accept the submission made by the Respondent that the reasons provided by the Applicant do not demonstrate exceptional circumstances.

[11] This weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

[12] The Applicant stated that he did not take any specific action to dispute his dismissal.

[13] This weighs against a finding that there are exceptional circumstances.

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

[14] The Respondent submitted that it would suffer prejudice if the extension of time were granted as it had already filled the Applicant’s position. Given that the position was filled on a casual basis I am not persuaded that this would result in a prejudice to the Respondent. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

The merits of the application

[15] In the matter of Kornicki v Telstra-Network Technology Group 2 the Commission considered the principles applicable to the extension of time discretion under the former 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.” 3

[16] For the purpose of determining whether to grant an extension of time to the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’ 4

[17] The Applicant gave evidence in an honest and truthful manner. He was adamant in cross examination that he did not undertake work in a manner that was contrary to his lifting restrictions, and that he had followed the direction of the Health and Safety Officer regarding certain tasks that were then relied on, in part, by the Respondent to dismiss him.

[18] The Respondent denies the allegations made by the Applicant and submits that the Applicant was terminated for the reasons set out in its termination letter. It argued that the Applicant’s case has little or no merit given the Respondent clearly articulated warnings and reasons why the Applicant was dismissed which did not include as a consequence of being temporarily absent from work or because the Applicant lodged a WorkCover claim.

[19] I am not able to make a final determination of the merits in this matter as there are factual disputes between the parties. I therefore consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[20] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 5 considered this criterion and said ‘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.’6

[21] There were no submissions or evidence that there were any persons in a similar position and I find it to be a neutral consideration.

Conclusion

[22] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[23] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

N Schouten on his own behalf.

M Morton for the Respondent.

Hearing details:

2016.

Brisbane and Canberra (by telephone):

September 20.

 1   [2011] FWAFB 975.

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

 3   Ibid.

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

 5   [2015] FWC 8885.

 6 Ibid at [29].

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