Periklis Stogiannidis v Victorian Frozen Food Distributors P/L T/A Richmond Oysters

[2018] FWC 2555

[2018] FWC 2555

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Periklis Stogiannidis
v
Victorian Frozen Food Distributors P/L T/A Richmond Oysters
(C2017/6538)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 8 MAY 2018

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

[1] On 24 November 2017 Periklis Stogiannidis (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 Victorian Frozen Food Distributors P/L T/A Richmond Oysters (Respondent).

[2] The Applicant commenced employment with the Respondent on 27 August 2014. He was a delivery truck driver. He says that he was dismissed on 21 September 2017 and the dismissal took effect on that day.

[3] The application therefore was lodged 43 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 submits that he was dismissed because he exercised his workplace rights under Workcover and exercised his rights to sick leave entitlements after he suffered an injury. 1 A breach of s.340 is alleged.

[6] The Respondent submitted that the Applicant had agreed to leave the employment of the Respondent and that consequently there was no dismissal at the initiative of the employer. 2

Procedural background

[7] Following a successful appeal by the Applicant the matter was remitted to me by a Full Bench of which I was a member. 3 The matter was listed for hearing before me on 23 March 2018.

[8] The Applicant was represented by Raphael Papaspyropoulos of Mendis & Gibson Lawyers. The Respondent was represented by Matthew Bromley of Counsel. The parties were both granted permission to be represented by a lawyer under s.596 of the Act.

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] The Applicant lodged his application for an unfair dismissal remedy on 8 October 2017, 17 days after his dismissal took effect. The matter proceeded to a conciliation on 2 November 2017 however was unable to be resolved.

[18] On 3 November 2017, the Applicant sought legal advice in relation to his claim. The Applicant submits he had made the unfair dismissal application due to his lack of knowledge regarding the differences between unfair dismissal and general protections. He believed that an unfair dismissal claim was the right action to pursue.   He submitted he was not aware of his rights under a general protections claim at the time he lodged his unfair dismissal application. 7

[19] On 10 November 2017, the Applicant was advised by his representatives to amend his claim to an unfair dismissal application and submitted that he delayed instructing his representatives to do so as he could not afford legal representation for such an action. 8

[20] On 15 November 2017, the Applicant was advised that his representatives would represent him on a ‘no win no fee’ basis and advised that if he wanted to amend his application it could be done with a submission of an application for variation or amendment. 9

[21] In further submissions filed by the Applicant he states he had two further consultations over the phone on 10 and 23 November 2017. On 21 November 2017, the Applicant’s representatives lodged a Form F1 with the Commission seeking to amend his unfair dismissal application to a general protections application. Subsequently, on 23 November 2017, correspondence was sent from the Commission to the Applicant’s representatives drawing their attention to the decision of the Full Bench in Peter Ioannou v Northern Belting Services Pty Ltd 10and querying whether they wished to pursue the amendment. The following day, the Applicant withdrew his unfair dismissal application and lodged the application currently before me.11

[22] In submissions filed by the Applicant after the matter was remitted to me for rehearing, the Applicant argued that the delay was caused by representative error as the Applicant had followed instructions from his legal representatives at all times. 12

[23] The Applicant submitted that the period of delay may only be attributed to the fact that the legal representatives did not properly appreciate the time limit for lodging a general protections claim since an unfair dismissal application was already on foot. 13 The conduct of the legal representatives contributed to all of the delay and the Applicant “did anything necessary to meet the time limits without further delay by instructing his legal representatives upon receiving proper advice”.14

[24] The Respondent submitted that the Applicant had failed to provide an explanation for part of the delay, being the period between 10 and 21 November 2017 or alternatively 10 and 15 November 2017. 15

[25] The Respondent also submitted that the Applicant had at no stage stated why he was unable to pursue his unfair dismissal application. 16 They submit that the Applicant has failed to explain why he delayed seeking legal advice until after attending the conciliation, some two months after the alleged dismissal.17

[26] In Davidson v Aboriginal & Islander Child Care Agency 18, the Full Bench of the Commission summarised the general propositions to be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay flowing from an earlier decision of the Australian Industrial Relations Commission19 as follows:

“(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay is occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether an out of time application should be accepted.”

[27] The Form F1 application lodged by the Applicant’s representatives provided as follows:

“THE APPLICANT NEEDS THE ORDER TO VARY THE CLAIM BECAUSE IF HE WERE TO WITHDRAW HIS CURRENT UNFAIR DISMISSAL APPLICATION WHICH WAS MADE WITHIN 21 DAYS OF DISMISSAL AND TO PUT IN A NEW ADVERSE ACTION CLAIM APPLICATION, HE WOULD BE OUT OF 21 DAYS TIMEFRAME FOR THE ADVERSE ACTION APPLICATION AND HE WILL BE UNFAIRLY DENIED OF HIS RIGHT TO CLAIM THE COMPENSATION.” 20

[28] 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. 21

[29] There were a number of inconsistencies between the Applicant’s submissions, his witness statement and his oral evidence, specifically the dates and events relating to his interactions with his representative that he says contributed to the delay. The Applicant’s witness statement provided that on 10 November 2017, he was advised that he should be amending the nature of his claim. He submitted the legal representatives did not properly appreciate the time limit for lodging a general protections application even though it is clear from the above at paragraph [27] that the Applicant’s representatives were aware of the 21 day timeframe for the lodgement of an application.

[30] Further, whilst the Applicant’s representatives may have erroneously believed that the application could be amended with a Form F1 application this does not explain why the Form F1 was not lodged for a further 6 days after they formally commenced acting for the Applicant. As outlined below, I am not satisfied that the Applicant has provided a credible explanation for the delay between the time of his dismissal, the lodging of his unfair dismissal application and the lodging of his general protections application.

[31] The Applicant submitted he delayed instructing his representatives to lodge his application citing that he could not afford legal representation for such an action as his reason.
Inconsistent with this submission and his witness statement the Applicant’s oral evidence was that he instructed his representatives to lodge an application to amend his unfair dismissal application on 10 November 2017. However in his later submissions the Applicant attributes the delay to the two meetings in which he had received advice from his representatives over the phone on 20 and 23 November 2017.

[32] Whilst I note the Applicant’s submissions regarding his financial situation, there was nothing preventing him from lodging an application to amend of his own accord, particularly given that he had already successfully filed an unfair dismissal application.

[33] Even if I were to accept that the Applicant instructed his solicitors to file an application on 10 November the Applicant gave evidence that he did not take any steps to follow up with his representatives between 10 November and 21 November 2017. I am therefore satisfied that this portion of the delay is occasioned by the lack of action by the applicant to inquire as to the status of his claim.

[34] Further, this application is not a circumstance in which an erroneous application has been lodged. There have been decisions of the Commission where prior lodgement of an erroneous application has been considered an acceptable reason for the delay in lodgement of a second application. 22 Upon realising that an incorrect application has been made it is incumbent on the applicant to act swiftly in making the correct application.23

[35] The Applicant provided no explanation as to why his unfair dismissal application was an incorrect application, and instead submitted that his legal representatives advised him to amend his claim as he had taken sick leave.

[36] The Applicant’s representative’s oral submission was that the advice was premised on the knowledge that whilst the unfair dismissal claim was a suitable claim, a general protections application could provide a more appropriate remedy. Even if I were to accept that the unfair dismissal application had been erroneously lodged, accounting for the first 29 days of the delay, I would not be satisfied that ‘representative error’ constituted an acceptable reason for the remaining 14 day delay in the lodgement of this application.

[37] I am not satisfied that the reasons provided by the Applicant 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

[38] 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. 24

[39] The Applicant filed an application for unfair dismissal remedy 17 days after his dismissal took effect.

[40] The Respondent conceded that the Applicant had taken steps to dispute his dismissal by lodging his unfair dismissal application. 25

[41] This weighs in favour of a finding that there are exceptional circumstances.

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

[42] Prejudice to the employer will go against the granting of an extension of time. 26

[43] The Applicant submitted that there is little prejudice to the employer in having to defend this application as they were already defending the unfair dismissal claim and had not been able to provide a satisfactory reason as to why the dismissal took place. 27

[44] Further, the Applicant submitted that the Respondent had not yet been required to submit their arguments in response to the Applicant’s outline of argument relating to his unfair dismissal application. 28

[45] The Respondent submitted that they had suffered prejudice as they had incurred the time and expense of lodging a response to the Applicant’s unfair dismissal claim and by preparing for and participating in the conciliation conference. 29

[46] While I note the Respondent’s submission it goes more to the issue of inconvenience as opposed to prejudice. There will always be a level of inconvenience associated with either party having to prepare to address a claim. I consider this criterion to be neutral.

(d) Merits of the application

[47] The Applicant submitted that he had suffered a work related injury in July 2017 and was unable to attend to his employment duties for approximately two months. During this time he was paid his normal salary through the Victorian Workcover authority. 30

[48] During the time that the Applicant was unable to attend work, he submitted the Respondent employed a casual truck driver to carry out his duties who he believed was still employed with the Respondent. 31

[49] The Applicant was declared fit to return to work on 21 September 2017 and submitted that, upon his return, he was advised by the Respondent that his position was no longer in effect and no further employment would be available to him due to a shortage of work. 32

[50] On 23 September 2017, the Applicant submitted that he was told to sign a letter acknowledging that a debt owed by him to the Respondent was to be discharged by the annual leave entitlements he had accrued. It was submitted that this letter was presented to the Applicant by the Respondent’s accountant who did not inform him of the second paragraph in the letter regarding his position and the undertaking to take no further action against the Respondent. 33

[51] The Applicant further submitted that the manager of the Respondent, Theo Annasis, had said to him during a telephone call on 20 September 2017 that the Respondent did not want to keep him employed full time as he had been away for a long time.  34

[52] The Respondent denied that the Applicant was dismissed because he lodged a Work Cover claim. They submitted that there was no dismissal but instead a termination by mutual agreement due to changing workloads and staffing at the Respondent’s place of business. 35

[53] 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. 36

[54] The Respondent further submitted that, as the alleged termination is the subject of conflicting accounts, the merits should be regarded as a neutral factor. 37

[55] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 38 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.39 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

[56] The Applicant submitted that, having made all necessary and reasonable attempts to resolve/dispute his dismissal from the earliest point in time, and in having to withdraw the unfair dismissal claim to pursue a more appropriate claim under this application, he would be unfairly denied his right to claim compensation if this application is dismissed. 40

[57] The Respondent submitted that this should be considered a neutral factor. 41

[58] 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. 42 However there were no submissions that there is or has been any person in a similar position to the Applicant. I find this criterion to be neutral.

Conclusion

[59] 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.

[60] 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. 43

[61] 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.

[62] An order 44 to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

R. Papaspyropoulos for the Applicant;

M. Bromley for the Respondent.

Hearing details:

2018

23 March (Telephone hearing).

Printed by authority of the Commonwealth Government Printer

<PR606876>

 1   Form F8 – General protections application involving dismissal

 2   Form F8A – Employer response to general protections application

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [48]

 4   [2011] FWAFB 975.

 5   [2016] FWCFB 349

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

 7   Exhibit A1 [9]

 8   Exhibit A3 [3] – [6]

 9   Ibid. [7] – [8]

 10   [2014] FWCFB 6660

 11   Exhibit A1 [9]

 12   Exhibit A2 [1]

 13   Ibid. [2]

 14   Ibid. [5]

 15   Exhibit R2 [15]

 16   Exhibit R1 [13]

 17   Ibid. [14]

 18   Print Q0784, 12 May 1998

 19   Clark v Ringwood Private Hospital (1997) 74 IR 413

 20   Form F1 Application (no specific form provided)

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

 22   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]

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

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

 25   Exhibit R1

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

 27   Exhibit A1 [10]

 28   Ibid. [10]

 29   Exhibit R1 [16]

 30   Exhibit A1 [2]

 31   Ibid. [3]

 32   Ibid. [5]

 33   Ibid. [7]

 34   Ibid. [11]

 35   Exhibit R1 [18]

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

 37   Exhibit R1 [17]

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

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

 40   Exhibit A1 [12]

 41   Exhibit R1 [19]

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

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

 44   PR606877