Parmenter v Alcamaco Pty Ltd

[2016] FWC 1456

[2016] FWC 1456

DECISION

Fair Work Act 2009
s.365—General protections
Anthony Parmenter
v
Alcamaco Pty Ltd
(C2015/5848)
DEPUTY PRESIDENT KOVACIC	CANBERRA, 7 MARCH 2016

Application to deal with contraventions involving dismissal - extension of time - no

exceptional circumstances warranting allowing a further period for the making of an

application - application dismissed .

[1]        Mr Anthony Parmenter (the Applicant) made an application which was received by the

Fair Work Commission (the Commission) on 26 August 2015 under s.365 of the Fair Work

Act 2009 (the Act) alleging that he had been dismissed by Alcamaco Pty Ltd (the Respondent)

in contravention of the general protections provisions in the Act. As the application did not

specify a termination date, the Commission subsequently contacted Mr Parmenter who

advised that he had been dismissed on 9 July 2015.

[2]        As Mr Parmenter’s application had been lodged twenty seven days outside the

statutory timeframe for lodgement, the Commission issued Directions on 11 September 2015

requiring the parties to file an outline of submissions and any evidentiary material they

intended to rely on regarding the extension of time issue.

[3]        The extension of time issue was the subject of a telephone hearing on 2 November

2015. At the telephone hearing, Mr Parmenter appeared on his own behalf, while Mr Rick

Stewart, the Respondent’s Director, appeared for the Respondent.

[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.

Background

[5]        The Respondent is a trolley collection company contracted to Woolworths’s Casino

(NSW) store. Mr Parmenter commenced employment with the Respondent approximately ten

years ago as a Trolley Collector.

[6] In his application, Mr Parmenter alleged that he was dismissed from his employment

for asking about his superannuation entitlements.
[2016] FWC 1456

[7]        The Respondent contended that Mr Parmenter was dismissed as a result of his

performance, adding that on the issue of superannuation it had been asking Mr Parmenter for

some time to complete superannuation related forms so that they could be lodged with the

relevant fund to enable contributions to be made. The Respondent further contended that it

met with Mr Parmenter on 13 July 2015 to discuss his performance and that it was at that

meeting that Mr Parmenter was dismissed.

[8]        As noted above, Mr Parmenter’s application was received by the Commission on

26 August 2015, twenty three days outside the statutory timeframe specified in s.366(1)(a) of

the Act (based on a termination date of 13 July 2015 as contended by the Respondent). In his

application, Mr Parmenter contends that his dismissal contravened s.340 of the Act which

deals with protection related to the exercise or non-exercise of a workplace right.

The Relevant Legislation

[9]        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.”

Whether to allow a further period for the application to be made

[10]      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

[11]      Mr Parmenter contended that he was not advised that he had been dismissed during the

meeting of 13 July 2015 with Mr Stewart, submitting that he only heard about his dismissal at

some later date via the “grapevine”. With regard to the meeting of 13 July 2015,

Mr Parmenter submitted that Mr Stewart had suggested that they let things settle for a couple

of weeks and that he would contact Mr Parmenter. However, when Mr Stewart did not call,

Mr Parmenter tried to contact him to no avail.

[12]      The Respondent submitted that it convened the meeting of 13 July 2015 to discuss

Mr Parmenter’s performance and that it was made quite clear at that meeting that

Mr Parmenter had been dismissed and that he would be given no more shifts. The Respondent
[2016] FWC 1456

also referred to a Facebook page post in which Mr Parmenter stated that he was looking for

work to support its claim that Mr Parmenter was aware that he had been dismissed, adding

that it also had copies of emails and text messages to support its contention that Mr Parmenter

was aware that he had been dismissed at the 13 July 2015 meeting. I note that neither a copy

of the Facebook page post or the emails and messages referred to above were put before the

Commission.

[13]      At the telephone hearing Mr Parmenter agreed that performance issues were raised at

the 13 July 2015 meeting and that the Respondent had previously had a number of discussions

with him regarding his performance. That acknowledgement gives weight to the Respondent’s

outline of the meeting of 13 July 2015 and supports a finding that Mr Parmenter was advised

that he had been dismissed at that meeting.

[14]      Against that background, I am not satisfied that the reason for delay relied upon by

Mr Parmenter is made out. As such, that reason does not point to the existence of exceptional

circumstances.

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

[15]      As previously mentioned, Mr Parmenter contended that he sought to contact the

Respondent when he had not heard from it for a couple of weeks after the 13 July 2015

meeting. Mr Parmenter did not point to any other contact he made with the Respondent prior

to lodging his application.

[16]      The Respondent indicated at the telephone hearing that it had offered to assist

Mr Parmenter work through some personal issues with shopkeepers at the shopping centre at

which he worked but did not refer to contact by Mr Parmenter to dispute his dismissal.

[17]      There is no material before the Commission indicating that Mr Parmenter took any

steps to dispute his dismissal prior to lodging his general protections application. This does

not point to the existence of exceptional circumstances.

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

[18] Neither party directly addressed this factor in their submissions, though the

Respondent referred to “some chatter around town” that Mr Parmenter was taking an unfair

dismissal action. In those circumstances, I consider this factor to be a neutral consideration.

(d) The merits of the application

[19]      At the telephone hearing Mr Parmenter reiterated his contention that he had been

dismissed because he inquired about his superannuation. In response to questions from the

Commission, Mr Parmenter not only acknowledged that the Respondent had discussed its

concerns regarding his performance with him on a number of occasions but also that the

Respondent had asked him to complete a number of superannuation forms, contending that he

had been unable to do so as his computer printer was under repair.

[20] The Respondent submitted that Mr Parmenter had been dismissed solely on

performance grounds, adding that the meeting of 13 July 2015 was the third meeting over a

12 month period where it had raised concerns about Mr Parmenter’s performance. The
[2016] FWC 1456

Respondent further submitted that it had for some time been asking Mr Parmenter to complete

paperwork related to superannuation but that he had yet to do so.

[21]      Mr Parmenter’s acknowledgement that the Respondent had raised concerns about his

performance with him on a number of occasions and that it had also asked him to complete a

number of superannuation forms supports a finding that Mr Parmenter was dismissed on

performance grounds. Further, Mr Parmenter’s argument that he was dismissed because he

enquired about his superannuation is difficult to sustain in circumstances where he

acknowledged at the telephone hearing that he was yet to complete the relevant paperwork as

requested by the Respondent. As such, the merits of Mr Parmenter’s application do not appear

to be particularly strong. This does not point to the existence of exceptional circumstances.

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

[22] Neither party directly addressed this factor in their submissions, though the

Respondent submitted that it considered that it had been more than fair to Mr Parmenter.

[23]      Against that background, I consider this factor to be a neutral consideration.

Conclusion

[24]      The question of exceptional circumstances was dealt with by a Full Bench of the then

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Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group	(Nulty) in the
following way:

“[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.”

[25]      Having considered all of the factors set out in s.366(2) and drawing on Nulty, 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).

[2016] FWC 1456

[26]      Accordingly, Mr Parmenter’s application will be dismissed. An order to that effect

will be issued with this decision.

Appearances:

A. Parmenter on his own behalf.

R. Stewart for the Respondent.

Hearing details:

2015.

Melbourne and Casino (telephone hearing):

November 2.

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[2011] FWAFB 975