Rhod Williams v Deals I Love (Australia) Pty Ltd

[2016] FWC 2093

[2016] FWC 2093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Rhod Williams
v
Deals I Love (Australia) Pty Ltd
(C2015/7147)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 4 APRIL 2016

Application to deal with contraventions involving dismissal.

[1] On 2 November 2015 2016 Mr Rhod Williams (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 Deals I Love (Australia) Pty Ltd (the Respondent).

[2] The Applicant commenced employment with the Respondent on 13 May 2013. He was the Chief Operating Officer of the Respondent’s E-commerce business located in Crows Nest, Sydney. He says that he was dismissed on 14 September 2015 and the dismissal took effect on 9 October 2015.

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

Alleged Contravention

[4] The Applicant submits that he was dismissed because he had made numerous complains about his pay, conditions of employment and unfair treatment to Mr Hedge, the Chief Executive. He says he was coerced into accepting reductions in conditions of employment. He alleges breaches of ss.340, 343, 344 and 352.

[5] Finally, the Applicant disputes that the reason for his dismissal was a genuine redundancy.

Respondent’s Submissions

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

[7] The Respondent states that the Applicant was dismissed as a result of a funding cut by its parent company that required a reduction of staff. There are only three employees left after the restructuring.

Relevant Legislation

[8] 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

[9] 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.”

[10] 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).

[11] 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

[12] On 13 January 2016 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, then adjourned until 8 March 2016 when it took place.

[13] The Applicant was self-represented. The Respondent was represented by Mr K. Hedge, its Managing Director.

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

[14] 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

[15] The Applicant left the filing of the application until the last minute, he concedes. He relies on medical difficulties, which he summarises, and the death of his father in England to explain the delay. On Friday 30 October, as he was attempting to lodge on line, he says that there was a technical fault in the Commission’s electronic filing system which prevented filing. As it was late on Friday afternoon, he was not able to talk to a Commission office, but did so at 9.00 am on Monday 2 November. The application was filed, after another failed attempt later that day.

[16] The Respondent does not oppose the granting of the extension.

[17] As the quote from Nulty above demonstrates, “exceptional circumstances” may be comprised of a combination of factors which separately would not bring an applicant within s.366(2). This was affirmed by the Commission, also in Wayne Candy v Structural Cranes Pty Ltd[2012] FWA 5878. In my view this is such a case.

[18] While I would not accept the medical and family reasons provided as sufficient to justify exceptional circumstances in themselves, I do so when combined with the technical difficulty in lodging and the Respondent’s position of acquiescing in the extension.

[19] I am satisfied that the combination of these factors and the consent of the Respondent, provide the basis for a finding that exceptional circumstances exist.

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

[20] The Applicant pursued his claim by a number of means with Mr Hedge.

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

[21] I do not consider that the Respondent would be unduly prejudiced in having to deal with the substance of the Applicant’s claim.

(d) Merits of the application

[22] Consideration of the merits of the application will turn on the extent of supporting evidence from the Respondent, that this was a genuine redundancy. In any event, the Respondent appears to be prepared to negotiate, depending on the level of financial support it gets from its parent company.

[23] I therefore consider that the merits give some weight to the existence of exceptional circumstances.

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

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

Conclusion and Order

[25] 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). Accordingly, the application for a further period for the making of the application is granted.

Order

Pursuant to s.366(2) of the Fair Work Act 2009 (the Act), I order that the time for Mr Rhod Williams to file his application under s.365 of the Act be extended to 2 November 2015. The application shall be referred for further proceedings in the Commission.

DEPUTY PRESIDENT

Appearances:

R. Williams Applicant;

K. Hedge for the Respondent.

Hearing details:

2016

Telephone Hearing:

March 8.

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