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

[2017] FWC 7013

[2017] FWC 7013[Note: This decision and the associated order has been quashed - refer to Full Bench decision dated 16 February 2018 [[2018] FWCFB 901]

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 PLATT ADELAIDE, 22 DECEMBER 2017

Application to deal with contraventions involving dismissal – extension of time – application dismissed.

[1] Mr Periklis Stogiannidis has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by Victorian Frozen Food Distributors P/L T/A Richmond Oysters (Richmond Oysters) on 21 September 2017 in contravention of the general protections provisions of the Act.

[2] This application was lodged on 24 November 2017.

[3] Mr Stogiannidis’ application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:

“1. Reason for the delay and actions taken to dispute the dismissal

I made an unfair dismissal application (FWC Reference: U2017/10867) within 21 days of my dismissal taking effect. I am making this application 42 days after the 21 days’ timeframe because I did not know my rights under general protections claim at the time I lodged my unfair dismissal claim. I could not afford legal representatives at that time and I genuinely believed that unfair dismissal was the right action to pursue based on the circumstances of my case and since I acted alone, I believed it could be settled through unfair dismissal conciliation (Parasad v Alcatel-Lucent Australia [2010] FWA 7804). I needed to seek legal advice, after failing to negotiate with the respondents through mediation and an arbitration conference was listed on 18 and 19 January 2018. I did so at the start of November 2017. After obtaining a proper legal advice, I filed Form f1 application with FWA on 21 November 2017 to substitute my unfair dismissal claim with general protections claim. Instructions were given by FWA on 23 November 2017 to pursue this claim pursuant to the full bench decision in Peter Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660.

2. Prejudice to the employer

I submit that there is little prejudice for the employer in having to defend this application because they are already defending the unfair dismissal claim at this stage and they have not been able to provide any satisfactory reasons as to why they dismissal took place. Further, the respondents are not yet required to submit their arguments in response to my outline of argument under unfair dismissal claim as the latter has not been served on them due to the change in the course of action pursued, before the date, no later than which I am required to submit my outline of argument.

3. Merits of the application

I submit that the merits of this application far outweigh the prejudice to the respondents because I have enough evidence to prove the circumstances which make it highly unlikely that the reason for the dismissal, ‘shortage of work’ is the genuine and real reason for dismissal. I further submit that in the case that matter goes to full trial, the burden of proof is on the respondents (s 361(1) FWA) to show that ‘shortage of work’ is the reason why they dismissed me.

4. Fairness

Having made all necessary and reasonable attempts to resolve/dispute this matter to my fullest capacity, and in having to withdraw the unfair dismissal claim, which was made within 21 days’ timeframe, to pursue a more appropriate claim under this application, I will be unfairly denied of my right to claim compensation if this application is to also to be rejected on procedural grounds.”

[4] Richmond Oysters filed a form F8A Employer Response on 5 December 2017 which raised a jurisdictional objection on the basis that the application was lodged out of time and Mr Stogiannidis had signed a release whereby he promised to take no further action. This decision only deals with the extension of time issue.

[5] On 8 December 2017, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 22 December 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Stogiannidis and Richmond Oysters were directed to provide an outline of argument by 15 December 2017.

[6] Mr Stogiannidis provided a written submission which is summarised as follows:

•  Mr Stogiannidis commenced employment with Richmond Oysters on 24 August 2014 as a truck driver.

•  In July 2017, Mr Stogiannidis suffered a work-related ankle injury and was unable to attend his employment for approximately two months. Mr Stogiannidis was declared fit to return to work on 21 September 2017.

•  Upon returning to work, Mr Stogiannidis was told that there was no work available for him. His employment was terminated.

•  Mr Stogiannidis lodged an unfair dismissal application (U2017/10867) on 8 October 2017. The application was made within the 21 day statutory time limit.

•  The unfair dismissal matter proceeded to conciliation and was subsequently listed for arbitration on 18 and 19 January 2018.

•  At the start of November 2017, after obtaining proper legal advice, Mr Stogiannidis lodged a form F1 application requesting that his unfair dismissal application be substituted for a general protections application.

•  On 23 November 2017 instructions were given by FWA (sic) to pursue the claim pursuant to the Full Bench decision in Peter Ioannou v Northern Belting Services Pty Ltd. 1

•  The reason he made an unfair dismissal application instead of a general protections application was due to a lack of knowledge about the differences between each application, being unaware of his general protections rights at the time that the unfair dismissal application was lodged and being unable to afford legal representation at the time that the unfair dismissal application was lodged.

•  He has disputed the dismissal from an early point in time. 2

•  There is little prejudice to the employer in having to defend the application because they are already defending the unfair dismissal application.

•  The merits of the application far outweigh the prejudice to the employer.

[7] Richmond Oysters provided a written submission which is summarised as follows:

•  Pursuant to s.725 of the Act, the Commission has no jurisdiction to hear the general protections application as the unfair dismissal application is still afoot.

•  In the alternative if the extension of time issue is considered, there are no exceptional circumstances.

•  The unfair dismissal application was the subject of a conciliation conference on or about 2 November 2017. The conciliation was unsuccessful and the matter was set down for arbitration on 18 and 19 January 2018. It was at this point that Mr Stogiannidis attempted to amend the unfair dismissal application.

•  Mr Stogiannidis has not provided a reason why he cannot pursue an unfair dismissal application.

•  Mr Stogiannidis has failed to explain why he delayed seeking proper legal advice until after attending the conciliation conference some two months after the dismissal.

•  There is prejudice to Richmond Oysters who have incurred time and expense in lodging a response and participating in a conciliation conference.

[8] A hearing was conducted by way of telephone conference on 22 December 2017. A sound file record of the telephone conference was kept. Mr Peter Azam of Mendis Gibson Lawyers represented Mr Stogiannidis and Mr Arthur Bourandanis of Frenkel Partners Lawyers represented Richmond Oysters. Permission was granted pursuant to s.596(2)(a) of the Act.

[9] Mr Azam relied on the written submission and in respect of the matters canvassed in paragraph 9(f) of his submission, advised that Mr Stogiannidis consulted with him on 3 November 2017, that he considered the matters and provided his advice on 10 November 2017. Mr Azam stated that his advice to Mr Stogiannidis was that a general protections claim should be lodged.

[10] Ms Stogiannidis was sworn and gave evidence confirming the submission made by Mr Azam and advised that the delay between the date he received Mr Azam’s advice and the lodgement of this general protections application on 24 November 2017 was due to the cost of making the application, him seeking information as to the legal costs which would be involved and that he took his time.

[11] At the telephone conference, Richmond Oysters relied on the submissions filed and contended that there were no exceptional circumstances on the basis that the delay had not been adequately explained.

[12] Section 366 of the Act relevantly states:

“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.”

[13] This general protections application by Mr Stogiannidis was made 43 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[14] I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd³ which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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] It is useful to set out the chronology of the unfair dismissal and this application.

[16] On 8 October 2017, an unfair dismissal application (U2017/10867) was lodged by the applicant himself.

[17] On 2 November 2017, a conciliation conference was conducted but did not resolve the matter.

[18] On 3 November 2017, Mr Stogiannidis first met with his lawyer.

[19] On 6 November 2017, the unfair dismissal application was listed by the Commission for arbitration and on the same day Mr Stogiannidis’ representative lodged a Notice of Representative Commencing to Act.

[20] On 10 November 2017, Mr Stogiannidis was advised by his lawyer to lodge a general protections application.

[21] On 21 November 2017, Mr Stogiannidis’ representative lodged a form F1 application to amend the unfair dismissal application to a general protections application.

[22] On 23 November 2017, Commissioner Bissett sent a letter to Mr Stogiannidis bringing to his attention the Full Bench decision of Ioannou v Northern Belting Services Pty Ltd  4 and requested that he advise by noon on 29 November 2017 whether he wished to pursue the unfair dismissal application.

[23] At 13.32pm on 24 November 2017, the Commission received a form F50 Notice of Discontinuance discontinuing the unfair dismissal application.

[24] At 15.45pm on 24 November 2017 this general protection claim was lodged.

[25] Richmond Oysters have raised an objection that pursuant to s.725 of the Act, Mr Stogiannidis cannot pursue a general protections application as the unfair dismissal application is still afoot. However, on 24 November 2017 the Commission received an F50 Notice of Discontinuance for the unfair dismissal matter U2017/10867 and accordingly this objection has no grounds.

[26] I accept that Mr Stogiannidis pursued his claim that he was improperly dismissed by his employer. I accept that the distinctions between an unfair dismissal application and a general protections application for an unrepresented employee can be difficult to understand.

[27] I accept that by the 21 November 2017 Mr Stogiannidis had determined to pursue his concerns as a general protections application, albeit his lawyer did not appear to appreciate that the Commission cannot amend an unfair dismissal application to become a general protections application but in any event this defect was remedied the day after Commissioner Bissett drew the parties attention to the matter.

[28] The difficulty for Mr Stogiannidis is that having had the benefit of legal advice on 10 November 2017, he did nothing for 11 days and by this time 50 days had elapsed since his dismissal. Whilst I do not dispute the explanation he has given, in my view it is not an exceptional circumstance.

[29] The applicant needs to provide a credible explanation for the entire period of the delay,⁵ but has not done so.

[30] The delay in this matter is considerable, however whilst I accept it presents prejudice to Richmond Oysters, it is not determinative in this matter.

[31] Consideration of fairness relative to other persons in similar positions is a neutral factor.

[32] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.

Conclusion

[33] For the reasons I have set out above, I am not satisfied that Mr Stogiannidis’ circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order⁶ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

P.Azam of Mendis and Gibson Lawyers on behalf of the Applicant.

A.Bourandanis of Frenkel Partners Lawyers on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

December 22.

 1   [2014] FWCFB 6660

 2   Smith v MacFarlane Generators Pty Ltd[2015] FWC 632

3 [2011] FWAFB 975

 4   [2014] FWCFB 6660

5 Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

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