Peter Noske v Interact Australia (Victoria) Limited T/A Interact Australia

[2016] FWCFB 3563

[2016] FWC 1505 [Note: An appeal pursuant to s.604 (C2016/3271) was lodged against this decision - refer to Full Bench decision dated 1 June 2016 [[2016] FWCFB 3563] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Peter Noske
v
Interact Australia (Victoria) Limited T/A Interact Australia
(C2015/8149)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 10 MARCH 2016

Application to deal with contraventions involving dismissal.

[1] On 15 December 2015 Mr Peter Noske (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Interact Australia (Victoria) Limited T/A Interact Australia (the Respondent).

[2] The Applicant commenced employment with the Respondent on 3 February 2014. He was the Chief Financial Officer for the Respondent based in Melbourne. He says that he was dismissed on 15 October 2015 and the dismissal took effect on that day.

[3] The application therefore was lodged 38 days out of time.

Alleged Contravention

[4] The Applicant submits that he was dismissed because he refused to accept a consultant’s report with respect to his behaviour in relation to another employee’s bullying complaint against him. Despite being exonerated of a number of the allegations, the Applicant refused to acknowledge the unreasonableness of some of his actions. A breach of s.340 is alleged.

Respondent’s Submissions

[5] The Respondent denies these allegations and further denies that there has been a breach of the General Protections provisions of the Act.

[6] The Respondent states that the Applicant was dismissed because of his conduct in the workplace and, in particular, his failure to comply with the reasonable directions of the Respondent.

Relevant Legislation

[7] 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.”

Approach of the Commission

[8] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[9] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[10] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which 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.”

Commission Proceedings

[11] On 8 January 2015, the parties were advised by the Fair Work Commission (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 5 February 2016. It proceeded by way of video-conference hearing with the parties in Melbourne because of the requirement to cross-examine witnesses.

[12] The Applicant had been represented by Mr Jim Stavris of counsel, who lodged the application. Mr Andrew Conley, another counsel in Mr Stavris’s chambers appeared at the hearing. The Respondent was represented by Mr Benjamin Tallboys, solicitor. Both were granted permission to appear pursuant to s.596 of the Act.

Matters to be taken into account pursuant to s.366(2)

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

(a) The reason for the delay

[14] The Applicant relied on his witness statement, and statements from Dr Gina Claxton and Tim Watson-Munro, clinical psychologists. All were the subject of cross-examination by Mr Tallboys.

[15] A statement was also provided by the Applicant’s partner dealing with his domestic situation.

[16] The Applicant relies on the psychological and health difficulties that he was experiencing, together with his son’s serious motor vehicle accident on 20 October 2015 which led to a number of other difficulties with him.

[17] The medical evidence was supportive of the view that the Applicant would have had difficulty functioning because of the dismissal and the issues with his son. He was provided with medication to deal with his depression. He attended a number of medical appointments during October.

[18] I accept that the Applicant’s proper functioning was impaired, but he was able to attend a number of medical appointments and deal with other issues. Importantly, his evidence was that he consulted his lawyer, Mr Stavris on the day of the dismissal. It is difficult to see why the application could not have been filed by Mr Stavris within the next 21 days, even if some detailed evidence was to be added later.

[19] Accordingly, the reasons for delay cited by the Applicant fall short of establishing exceptional circumstances.

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

[20] The Applicant continued to provide doctors’ certificates to the Respondent until 23 November 2015 when he was accused of harassment.

[21] However, I am not satisfied that this is a matter of significance in the circumstances of this case.

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

[22] I consider this factor to be neutral in this case.

(d) Merits of the application

[23] The Applicant alleges that his workplace rights have been infringed by the Respondent in implementing an unfair investigation process which did not provide him with natural justice. Two large folders of material were provided by the Applicant in support of the merits of the General Protection claim. The Applicant was in a senior executive position and was confronted by an investigation of conflict within the Executive Team. He had a workplace right to be treated fairly and makes some valid points about the failure of the process. The dismissal took place after a period of extended leave and whilst the Applicant was on sick leave.

[24] The Respondent denies a breach of the General Protections provisions. However, it did not put much forward to separately justify its decision to dismiss the Applicant.

[25] I consider that the substantial material on the merits put by the Applicant is a factor which gives some weight to the existence of exceptional circumstances. It does not, however, outweigh my finding in respect of the reasons for delay.

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

[26] This factor was not addressed and has not been taken into account.

Conclusion and Order

[27] Having considered all 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.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Peter Noske under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

A. Conley of counsel with P. Noske, Applicant.

B. Tallboys, solicitor with A. James for the Respondent.

Telephone Hearing details:

2016

February 5.

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