Peter Page v Greatwall Tourist Resort Pty Ltd T/A Riverside Ski Park

[2018] FWC 645

[2018] FWC 645

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Peter Page
v
Greatwall Tourist Resort Pty Ltd T/A Riverside Ski Park
(C2017/6957)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 31 JANUARY 2018

Application to deal with contraventions involving dismissal - extension of time granted.

[1] On 15 December 2017 Mr Peter Page (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 Greatwall Tourist Resort Pty Ltd T/A Riverside Ski Park (Respondent).

[2] Mr Page commenced employment with the Respondent on 17 November 2017. He was the park manager. He says that he was dismissed on 21 October 2017 and the dismissal took effect on that day.

[3] The application therefore was lodged 34 days out of time.

[4] For the reasons set out below I have concluded that I am 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, an extension of time will be granted.

Alleged Contravention

[5] Mr Page submits that he was dismissed because he reported a safety issue regarding the Respondent’s boat ramp to SafeWork NSW. A breach of s.340 is alleged.

Respondent’s Submissions

[6] The Respondent submits that Mr Page was dismissed because of a wide range of performance and conduct concerns.

Legislative scheme

[7] 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).”

[8] 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.”

[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1where 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]

[10] 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

[11] 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. 2

[12] 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 3 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.”

Background

[13] On 20 December 2017, the parties were advised by 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 January 2018.

[14] Both the Applicant and the Respondent were self-represented at the hearing. Mr Page gave evidence on his own behalf and Mr Anthony Lam, Director, gave evidence on behalf of the Respondent.

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

[15] 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

[16] Mr Page submits that immediately following his dismissal he mistakenly filed an unfair dismissal application instead of a general protections application because he believed it to be the appropriate action. 4 He submits that had he been aware that his unfair dismissal application was outside the Commission’s jurisdiction, he would have submitted the general application on the date of his dismissal.5 Mr Page further submits that following the dismissal he was unable to obtain legal advice because of his financial hardship that he alleges the Respondent perpetuated.6

[17] A review of the Commission’s file management system shows that on 10 November 2017, the Respondent filed a Form F3 in response to the Applicant’s unfair dismissal application highlighting that Mr Page had not met the minimum employment period. On 13 November 2017, the Respondent advised that they were not willing to attend a conciliation in that matter and sought a hearing in relation to their jurisdictional objection. A Commission staff member spoke to the Applicant and his partner on 14 November 2017 to explain that the matter would be referred to a jurisdictional hearing.

[18] On 20 November 2017 the Applicant’s unfair dismissal application was allocated to the chambers of Deputy President Dean, who corresponded with the parties advising that it appeared the Applicant had not met the minimum employment period. After both the Applicant and Respondent filed submissions regarding this issue, the Deputy President’s chambers corresponded with the Applicant on 5 December 2017 to advise that on the basis of the dates he had provided he had not met the minimum employment period required to lodge an unfair dismissal application. At this time, Mr Page was also provided with a list of community legal centres he could contact to seek advice.

[19] Mr Page gave evidence that, upon receiving correspondence from the chambers of Deputy President Dean on 20 December 2017, he did not seek any legal advice as he genuinely believed he had met the minimum employment period as, at the time of his dismissal, he had provided his employer with a medical certificate which covered him until 24 November 2017. 7 Further, he submitted that he did not have the money to seek legal advice as he was not paid correctly for his last weeks at work. It was only after receiving the correspondence from the Deputy President on 5 December 2017 that Mr Page became aware that he was not a person protected from unfair dismissal.

[20] On 6 December 2017, Mr Page contacted the chambers of Deputy President Dean to discuss his matter and left a voicemail. His call was returned the following day, and the Applicant was advised to seek legal assistance urgently. 8

[21] Mr Page submitted that on this same day he contacted Blacktown Legal Aid and made an appointment. He submitted that they were only able to provide advice in relation to civil cases on one day per week. Once he had attended this appointment he advised that, due to the large number of documents filed in the matter, Blacktown Legal Aid required a further week in order to provide him with advice. 9 He gave evidence that they advised him to seek an extension of time to respond to the Deputy President’s correspondence.

[22] On 14 December 2017 Mr Page gave evidence that he was told by Legal Aid that he could make a general protections application. The following day, he discontinued his unfair dismissal application and lodged the application that is currently before me.

[23] Mr Page submitted that, as part of his role as park manager, he resided in the manager’s residence at the Respondent’s premises. He submitted on 18 October 2017, he was advised by Mr Lam that he was being evicted from the manager’s residence and given four days to vacate. The Applicant gave evidence that he saw a solicitor on 23 October 2017, immediately after his dismissal, however not in relation to his dismissal. He submitted that he was experiencing a “nervous breakdown” and only spoke to his solicitor in relation to this tenancy dispute as he had been “put out on the street”.

[24] The Applicant further submitted that he was required to attend the NSW Civil and Administrative Tribunal on 14 November 2017 as the Respondent was disputing that he was required to provide the Mr Page with 30 days’ notice to vacate.

[25] In this time, Mr Page also submitted that he had to move from the manager’s residence at great expense to himself as he had to move his boat, caravans that he had been repairing, a ride on mower, building tools and trailer, birds and bird house, 25 chickens, 70 quails, his horse and a flock of 16 sheep. Mr Page submitted that he had given up his Veterans Affairs Unit in July 2017 and as such was of no fixed abode. 10

[26] The Applicant had a further legal matter taking place at this time, as he was arrested on 3 November 2017 in relation to a dispute he had with the park manager who was hired to replace him, Mr Michael Tindall. 11 Mr Tindall sought an AVO against the Applicant and the Applicant was required to attend a hearing regarding this matter on 23 November 2017.12 The Applicant sought advice from Legal Aid in relation to this matter on 12 December 2017.

[27] In addition to the abovementioned circumstances, the Applicant gave evidence that he had difficulty travelling to seek legal advice as he lived out of town. The Applicant also provided the Commission with medical certificates stating that he was unfit to undertake his current work or study, and unfit to do any other work for 8 hours or more per week, from 20 October 2017 to 24 November 2017 and 24 November 2017 to 22 December 2017. 13

[28] The Respondent submits that the main reason for the delay was the Applicant’s decision to make an unfair dismissal application. 14 The Respondent submits that the Applicant’s lack of awareness that his unfair dismissal application was outside the Commission’s jurisdiction does not constitute an exceptional circumstance.15

[29] The Respondent further submits that the Applicant’s failure to seek prompt legal advice following the dismissal does not equate to an exceptional circumstance. They submit that the Applicant has provided no adequate reason or evidence to support his claim that he was unable to make this application in time. 16

[30] The Respondent further submitted that, as the Applicant had lodged an unfair dismissal application with the Commission on the day of his dismissal, he was clearly capable of making an application to the Commission.

[31] The prior lodgement of an erroneous application to the Commission has been considered an acceptable reason for the delay in lodgement of a second application. 17 However, upon realising that an incorrect application has been made it is incumbent on the applicant to act swiftly in making the correct application.18

[32] In Hambridge v Spotless Facilities Services Pty Ltd 19 the Full Bench of the Commission held as follows:

“[41] … A mistake in using a wrong form by a self-represented applicant should not lead to an outcome which is fatal to the applicant’s access to the Commission’s jurisdiction.”

[33] Whilst the circumstances in Hambridge are somewhat different to the application before me I am satisfied that the general principle expressed by the Full Bench above has application in this matter.

[34] Mr Page sought legal advice in relation to his application promptly upon being advised that he had not met the minimum employment period. He contacted Blacktown Legal Aid upon speaking to the Associate to Deputy President Dean on Thursday 7 December 2017 and made an appointment at their next available time.

[35] The delay in Mr Page lodging this application can also be explained by the numerous legal matters he had on foot over this period requiring his attendance at various hearings in multiple jurisdictions, his requirement to move out of the manager’s residence and lack of subsequent accommodation and his illness. Whilst some of these matters may be commonly encountered circumstances, the Commission has previously held that a confluence of relatively ordinary matters can amount to exceptional circumstances. 20

[36] For this consideration there must be an acceptable reason for the delay 21 and this must be for the whole period that the application was delayed.22 I am satisfied that the Applicant has provided a reasonable explanation for the whole of the delay and the confluence of the ordinary matters Mr Page faced weigh in favour of a finding of exceptional circumstances.

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

[37] 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. 23

[38] The Applicant submits that he took immediate action to contest the dismissal by lodging an unfair dismissal application on the date of his dismissal. 24

[39] The Respondent conceded that it was clear that the applicant had taken action to contest his dismissal in filing his unfair dismissal application. 25

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

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

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

[42] The Respondent submitted that it would be prejudiced by having to defend a claim that it would not otherwise have to address, contending that it operates a small business with only one full-time employee. The Respondent further submits that it has suffered considerable financial harm as a consequence of the Applicant’s conduct. Considering the business relies partly on subsidies to cover its operational costs, the Respondent submits that it will suffer further prejudice if this application proceeds. 27

[43] While I note the Respondent’s submission, it goes more to the issue of inconvenience as opposed to prejudice. Accordingly, I consider this factor to be a neutral consideration.

(d) Merits of the application

[44] Both the Applicant and the Respondent filed substantial submissions regarding the merits of the application.

[45] The Applicant submitted that he was dismissed for exercising his rights under section 340(1)(a) and requesting that SafeWork NSW attend the premises to inspect the boat ramp and issue a certificate of safety.

[46] The Applicant submitted that, as park manager, it was his responsibility to ensure the safety of people, boats, the boat ramp and the trailer. He submitted that he recognised there was a safety concern with the park’s boat ramp, at which point he notified his employer, notified the residents of the park and contacted SafeWork NSW. 28

[47] The Applicant submitted that the Respondent denied that there was any issue with the boat ramp and insisted that it remain open for use. Further, the Applicant submitted that the Respondent attempted to make him sign a liability waiver regarding use of the boat ramp. After he refused to do so, the Applicant submits his employment was terminated. 29

[48] The Respondent submitted that it had been their decision to close the boat ramp rather than the Applicant. They submitted that they had received no advice from the Applicant, either written or verbal, advising that he would not be signing the liability waiver. Further, they submitted that they had not asked the Applicant to sign the liability waiver as they had already suspended his employment as the park manager and appointed someone else in his place. 30

[49] Instead, the Respondent submitted that the Applicant was dismissed for a number of conduct and performance concerns, such as allowing people to remain in the park for free, occupying boat sheds without payment, not correctly recording cash transactions, working under the influence of alcohol and failing to deal with issues or complaints from the site owners. 31

[50] Further, the Respondent submits that the Applicant was operating his own business within the park, such as selling firewood and frozen foods and storing and repairing vans to resell. 32

[51] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 33 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.34 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

[52] 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. 35 However, there were no submissions that there is, or has been, any persons in a similar position to the Applicant. I find this criterion neutral.

Conclusion

[53] 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.

[54] 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. 36

[55] Having considered all of the factors set out in s.366(2), I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Mr Page made a procedural mistake in submitting an unfair dismissal application rather than a general protections application. When he was advised by the Deputy President’s chambers that he had not met the minimum employment period he promptly sought legal advice which resulted in the discontinuance of his unfair dismissal application and the immediate lodgement of his general protections application.

[56] Accordingly, an order 37 granting Mr Page an extension of time to make his application until 15 December 2017 will be issued with this decision. The application will be referred for further programming.

COMMISSIONER

Appearances:

P. Page on his own behalf;

A. Lam for the Respondent.

Hearing details:

2018

5 January (Telephone hearing).

<PR599967>

 1   [2011] FWAFB 975

 2   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403

 3   [2016] FWCFB 349

 4   Exhibit A1

 5   Exhibit A1

 6   Exhibit A1

 7   Exhibit A1

 8   Exhibit A1

 9   Exhibit A1

 10   Exhibit A1

 11   Exhibit R2

 12   Exhibit R2

 13   Exhibit A1

 14   Exhibit R1

 15   Exhibit R1

 16   Exhibit R1

 17   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]

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

 19   [2017] FWCFB 2811

 20   Baltas v ISS Facility Services Limited Australia T/A Iss Facility Services[2017] FWC 3045 at [45]

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

 22   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409

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

 24   Exhibit A1

 25   Exhibit R2

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

 27   Exhibit R2

 28   Applicant’s Form F8

 29   Applicant’s Form F8

 30   Exhibit R2

 31   Exhibit R2

 32   Exhibit R2

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

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

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

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

 37   PR599968

Printed by authority of the Commonwealth Government Printer