Pieter Van Meel v Grain Corp Limited

[2017] FWC 3109

[2017] FWC 3109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Pieter Van Meel
v
Grain Corp Limited
(C2017/921)

COMMISSIONER CIRKOVIC MELBOURNE, 6 JUNE 2017

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

[1] On 17 February 2017, Mr Pieter Van Meel (Applicant) lodged a general protections application (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 Grain Corp Limited (Respondent).

[2] The Applicant commenced employment with the Respondent in June 2004. He was a National Business Manager.

[3] There is no dispute and I am satisfied on the evidence that the Applicant was dismissed by the Respondent on 13 January 2017 and the dismissal took effect on that day.

[4] The application therefore was lodged 14 days out of time.

[5] 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

[6] The Applicant submits that he was summarily dismissed because of a number of Occupational, Health & Safety issues. The Applicant submits that the process followed was unfair and unlawful. A breach of s.340, 343 and 344 are alleged.

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) 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).

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

[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[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.”[Endnotes not reproduced]

Background

[13] On 22 February 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 an outline of argument: extension of time. The matter was listed for hearing on 23 March 2017.

[14] Permission to appear on behalf of the Applicant was sought by and granted to Mr Steve Grapsas of S G Consulting. As part of his reasons for seeking permission, Mr Grapsas cited the Applicant having ‘no industrial relations experience whatsoever’ and Mr Grapsas having ‘over 35, 40 years’. 2 The Respondent was self-represented.

[15] At the hearing, evidence for the Applicant was given by:

• Mr Van Meel;



• Mr Grapsas.

Evidence for the Respondent was given by:

• Ms Christie Mackay, General Manager Human Resources.

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

[16] 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

First reason for the delay

[17] Representative error is advanced by Mr Van Meel in his written material and verbally at the hearing as the reason for the 'delay'. The delay in question is 14 days, there being no contention that the dismissal took effect on the 13 January 2017.

[18] Mr Grapsas initially lodged an unfair dismissal application on 4 February 2017. At the hearing, he sought to advance an erroneous proposition that the unfair dismissal application was lodged within the statutory timeframe. Eventually he did concede that the unfair dismissal application was lodged one day out of time. 3

[19] I accept the evidence of Mr Grapsas that:

• at the time he lodged the unfair dismissal application he was unaware of Mr Van Meel’s earnings;



• it was not until 17 February 2017 that he first became aware that Mr Van Meel’s earnings precluded him from making an unfair dismissal application;



• he subsequently decided that a general protections application was more appropriate;



• the section 394 application was withdrawn 4; and

• as Mr Van Meel’s representative he was responsible for the error in failing to determine Mr Van Meel’s earnings.

[20] Prior to the hearing, no other explanation for the delay in lodging the general protections application 14 days out of time was made.

Actions of Mr Van Meel

[21] Mr Van Meel conceded in evidence that he was advised verbally on 13 January 2017 of the reasons for his dismissal, but that he was in a state of shock and did not do ‘very much about things’. 5 Up to that point Mr Van Meel claims to have taken ‘counsel from people’ and received advice that it was ‘strange’ that he had not ‘received any formal notification, a letter or anything like that’.6 He states that he subsequently sought clarification from the Respondent regarding his termination and his benefits and that he received the requested termination letter on 30 January 2017.7 He states that he then sought further assistance and was advised by others that ‘perhaps there was something worth following up’ and that he tried to make contact with Mr Grapsas ‘through an associate’.8 He claims that he had put himself ‘into a mindset that there was nothing really to be done’ and that he was ‘led pretty much by…Mr Grapsas on whether’ he should do anything at all.9

[22] Mr Van Meel first made contact with Mr Grapsas on the evening of 3 February 2017 (the last day his application could be lodged on time). 10 When questioned by me as to the specific instruction he gave his representative the following exchange resulted:

“And when you spoke to Mr Grapsas were you aware what you were instructing Mr Grapsas to do?---I was making the inquiry as to – yes, any options that were open, given what I had received from the company.  I was making inquiries, I guess, Commissioner.  I – I wasn't testifying anything.  I just – it was an inquiry, at that stage.

So as at the evening of 3 February you were making an inquiry of Mr Grapsas, you're saying?---Yes.

And you say that notwithstanding that you spoke to a few people, I think you've said, prior to that time, are you saying that you had no formed view as at the evening on 3 February as to what, if any case, you'd be taking?---I had no view at all.  I – I was probably not in a good state of mind, so – I was confused and – yes, I – I'm – I'd – only after I'd spoken to a particular person that mentioned that Mr Grapsas may be a good person to talk to that I made that contact.” 11

And then later in giving is his evidence he states:

“All right.  Going back to 3 February, you said you had that phone call with Mr Grapsas very late in the evening.  I think it was about 9.30 or ten o'clock?---Yes.

You then spoke to him, you say, on the Saturday morning.  Now as I understand you, you're not certain whether you told Mr Grapsas how much you were earning, is that the position?---I definitely would not have said anything on the Friday.  I'm totally unsure on the Saturday whether I made that – made that aware to Mr Grapsas or not.  I can remember the conversation, I can't remember the details.

All right, and when did you become aware then that in fact you needed to file a different type of application, that in fact you needed to lodge a general protections application?---I was made aware by Mr Grapsas, I think, around 17 February.

What happened then?---Well, I – I've let Mr Grapsas handle most of this, Commissioner, so I – I've – I really took his advice to – to do whatever he needed to do.” 12

[23] When questioned by me as to the action he took prior to speaking with Mr Grapsas, the following interchange ensued:

“But had you - before you spoke to Mr Grapsas, researched your options? – As far as what I could do?

Yes?---Not in detail, no. I, again, asked – asked people, really.

And did you search the Commission website, for example?---The Fair Work Commission website?

Yes?---Probably briefly, yes.  I didn't understand it but I did – I would have had a look at it, yes, sure.

Well, the website sets out fairly clearly what the options are and what's available to applicants and what time constraints apply, so did you see those?  Did you research those?---Commissioner, I was in a pretty confused state of mind and the dates didn't mean a lot to me as far as what was happening.  The dates didn't mean much.  I mean, I didn't know whether at the 23rd – the 22nd day I – I really didn't know.  I – I guess I'd put myself into a mindset that there was nothing really to be done anyway, like, I'd put myself in that mindset.” 13

Second reason for the delay

[24] During the course of giving his verbal evidence Mr Van Meel made reference for the first time to his medical condition being a reason for making the application out of time. 14 There was no mention of this factor as a reason for the delay in either his application or outline of argument submitted prior to the hearing.

[25] Despite the objection of the Respondent, I allowed Mr Van Meel the opportunity of presenting further evidence to the Commission as to any medical evidence he wished to adduce to support a finding that the delay was occasioned by his medical condition. I also invited the parties, if necessary, to lead further evidence on any issues related to the medical evidence. 15

[26] Mr Van Meel produced two reports. One of Dr John Scally 16, general practitioner and the other of Dr Carrie Stanford17, clinical psychologist. Neither party sought to lead further evidence and both were content to rely on the reports as presented.

[27] Dr Scally in his report explains that he saw Mr Van Meel on 19 January 2017 and that Mr Van Meel was anxious, not sleeping, agitated and very depressed and states that he attended the medical clinic again on 25 January and 10 February 2017. Dr Scally states that Mr Van Meel was significantly impaired in his ability to process day to day responsibilities and to function normally and that his incapacity would have lasted until mid-February and still continues to a lesser degree.

[28] The report of Dr Carrie Stanford, clinical psychologist, states that Mr Van Meel has been a client of Hepworth Psychology since January 2017 and is receiving treatment for anxiety and depression. Dr Stanford states that at the time of referral Mr Van Meel reported symptoms of nausea, pins and needles on arms, sweating, poor sleep, reduced appetite, low mood, anhedonia and social withdrawal.

Consideration

[29] The Full Bench decision in M N Robinson v Interstate Transport Pty Ltd 18 considered

representative error in terms of an extension of time for an application filed pursuant to s.365 of the Act.

[30] In that decision the Full Bench stated:

“[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s.170CE (8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidsons’s Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the application was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.

[25] The approach in Clark’s Case was summarised in Davidson’s Case as follows:

“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(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 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 or not an out of time application should be accepted.”” [Endnotes not reproduced]

[31] There is no contention that Mr Van Meel was employed by the Respondent in the position of National Business Manager of the Small Recycling Division, having worked for the Respondent from June 2004. 19

[32] There is also no dispute that his duties included managing incidences of performance efficiencies and conduct issues and that he was aware that on occasion employees had challenged their dismissal and that there was ‘some’ time limit involved with those challenges. 20 There was some debate between the parties as to whether Mr Van Meel had been aware of the precise time limit for making an application to the commission and the legislative high income threshold. In coming to my conclusion, I have not found it necessary to resolve this dispute.

[33] In this matter I do not accept that the evidence before me supports a finding that Mr Van Meel was ‘blameless’, rather the evidence before me suggests that Mr Van Meel’s conduct contributed to the delay. In coming to my conclusion I have accepted Mr Van Meel’s testimony that:

• as at 3 February 2017, he was on his own admission making a general “enquiry” of Mr Grapsas;



• it was not until 4 February 2017 that he had a “longer” conversation with Mr Grapsas, during which he claims to have discussed broader details of his employment;



• up to the point of speaking to Mr Grapsas he was of a mind-set that there was “nothing really to be done anyway”;



• he was led pretty much by Mr Grapsas on whether to do anything at all; and



• it was not until 17 February that he became aware, through Mr Grapsas, that he was precluded from making an unfair dismissal application and that a general protections application was deemed appropriate by Mr Grapsas. 21

[34] I also have taken into account the following:

• the conduct of Mr Grapsas and my findings in paragraph [19];

• Mr Grapsas’ initial belief that as at 4 February 2017 he believed that the unfair dismissal application was within the 21 day time period; and



• Mr Grapsas’ concession at the hearing that as at 4 February Mr Van Meel’s application was already one day late.

[35] For the above reasons and given Mr Van Meel’s uncontested evidence in paragraphs [21] – [23], I do not accept the proposition that representative error is sufficient reason to extend the time for making Mr Van Meel’s application.

[36] Whilst I sympathise with Mr Van Meel and any employee who suffers from shock and distress from losing their employment involuntarily, the medical evidence supplied does not in my view support a finding that the Applicant was ‘incapacitated’ such that he would have been unable to lodge an application on time.

[37] In coming to this conclusion I have taken into account the uncontested evidence of Dr Scally and Dr Stanford as set out in paragraphs [27] and [28] and my findings in [33] but, on balance, have been persuaded by Mr Van Meel's evidence that, notwithstanding his medical circumstances, he was able to function and perform tasks which included:

• making contact with various people,



• making an enquiry to the Respondent requesting his summary of long service leave and annual leave pay-out before 30 January 2017,



• seeking further assistance after receiving a response from the Respondent and being referred to Mr Grapsas,



• endeavouring to make contact with Mr Grapsas on 2 or 3 February, when he was unaware Mr Grapsas was away,



• continuing to try to make contact with Mr Grapsas and successfully doing so around 10pm on the evening of 3 February 2017,  22



• searching the Commission website, 23 and



• on the Monday morning following the dismissal, dropping off “stuff” to Footscray, sending an email address and going to the doctor’s. 24

[38] Given the above, the medical evidence supplied does not in my view support a finding that the Applicant’s medical condition prevented him from lodging his application on time.

[39] For this consideration there must be an acceptable reason for the delay 25 and this must be for the whole period that the application was delayed.26 I am not satisfied that the Applicant has provided a reasonable explanation for the whole of the delay. Overall the evidence does not support a finding that there was a credible reason for the whole period of the delay. This weighs against a finding of exceptional circumstances.

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

[40] The Applicant submits that during the meeting of 13 January 2017 he was not given the opportunity to challenge the decision. The Applicant further submits he did not receive full reasons for his dismissal until 30 January 2017, after he requested it from the Respondent. The Applicant submits that lodging the unfair dismissal application on 4 February 2017 is action taken to dispute the dismissal.

[41] The evidence of Ms McKay contradicts the submission that Mr Van Meel was not given an opportunity to challenge the decision. Her evidence is that the allegations involving safety breaches were put to Mr Van Meel and that he ‘was provided an opportunity to respond to each of those allegations and those responses were considered’. 27

[42] The Respondent submits that the Applicant’s contact with it, shortly prior to 30 January 2017 was not an attempt to dispute the dismissal but rather to seek a written letter of termination. The Respondent submits that the email from the Applicant’s wife on 30 January did not dispute the dismissal either. The Respondent submits that the Applicant did not dispute the dismissal with the Respondent after the dismissal within the 21 day period.

[43] Whilst I empathise with Mr Van Meel wanting to ensure he received written confirmation and reasons for termination, I do not find this equates to action taken by Mr Van Meel to dispute the dismissal. Nor do I regard the filing of his unfair dismissal application, in circumstances where it was filed outside of the 21 day time limit, to be action taken to dispute the dismissal.

[44] This factor is neutral in considering whether to exercise the discretion to allow a further period for Mr Van Meel to lodge his application.

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

[45] The Applicant submits the delay has not caused prejudice to the employer.

[46] The Respondent submits that it should not have to incur further time and expense dealing with a further application that fails to set out a proper reason for the delay and that lacks any meritorious basis for relief.

[47] 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

[48] The merits of the application to which Mr Van Meel refers, are, that he was unfairly treated through the decision of the Respondent to dismiss him and that he was not afforded procedural fairness. Aside from this submission, he has not advanced any substantial material as to specific contraventions of the Respondent.

[49] The Respondent submits that it decided to dismiss the Applicant from his employment on the grounds of serious misconduct following an internal investigation which afforded the Applicant both procedural and substantive fairness. The Respondent also submits that the Applicant has failed to demonstrate any basis upon which the Respondent took adverse action against the Applicant because the Applicant had a workplace right, sought to exercise a workplace right or proposed to exercise a workplace right and that as such the jurisdiction is not enlivened and the Applicant’s claims for relief must fail.

[50] I note that, for the purpose of determining whether to grant an extension of time to the Applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case.” 28

[51] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 29 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.

[52] I have not done so. There is insufficient material presently before the Commission to draw any conclusions about the prospects of success. 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

[53] The Applicant submits that any other person in a similar position would have been made aware well in advance of the meeting of 13 January 2017 the precise reasons for the meeting and as such would have been afforded the opportunity to take appropriate action within the 21 day period.

[54] The Respondent submits that there are no other persons in a like position to the Applicant in the business.

[55] The full bench in Perry v Rio Tinto Shipping Pty Ltd30 [2016] FWC 6963 considered this criterion and said (at 41):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission on matters previously decided by the Commission.”

[56] I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[57] 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.

[58] 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. 31

[59] 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.

[60]An order 32 to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

Mr S Grapsas of S G Consulting, for the Applicant;

Mr A Umansky, of the Respondent.

Hearing details:

2016

23 March (Telephone hearing).

Final written submissions:

Applicant’s final submission, 30 March 2017

Respondent’s final submission, 6 April 2017

 1   [2011] FWAFB 975.

 2   PN90.

 3   PN136-138.

 4   PN142.

 5   PN261.

 6   PN261.

 7   PN263 & 342.

 8   PN263.

 9   PN274 & 278.

 10   PN266.

 11   PN267-269.

 12   PN287-290.

 13   PN270-274.

 14   PN261.

 15   Directions issued 23 March 2017.

 16   Dated 24 March 2017.

 17   Dated 29 March 2017.

 18   [2011] FWAFB 2728.

 19   PN94 & 295 and Form F8 – General Protections Application Involving Dismissal, p.3.

 20   PN297 & 301-302.

 21   PN289.

 22   PN263.

 23   PN273.

 24   PN340.

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

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

 27   PN437.

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

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

 30   [2016] FWCFB 6963.

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

 32   PR593555.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR593554>