Richard Holstein v Willing and Able Foundation Limited

[2015] FWC 1958

[2015] FWC 1958

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s 365 - Application to deal with contraventions involving dismissal

Richard Holstein
v
Willing and Able Foundation Limited
(C2014/8441)

DEPUTY PRESIDENT SAMS BRISBANE, 31 MARCH 2015

Application to deal with contraventions involving dismissal - application filed 'out of time' - serious misconduct - priority given to criminal charges - advice from lawyer - psychological condition - stress and anxiety - merits not strong - no 'exceptional circumstances' - application dismissed.

INTRODUCTION

[1] On 19 December 2014, Mr Richard Holstein (the ‘applicant’) lodged an application pursuant to s 365 of the Fair Work Act 2009 (the ‘Act’), seeking relief in respect to the termination of his employment by Willing and Able Foundation (the ‘respondent’ or the ‘Foundation’) on 3 October 2014. The applicant was dismissed in a letter sent to him dated 30 September 2014. The applicant asserts that the termination of his employment was in contravention of ss 340, 344 and 345 of the Act. Section 366(1) of the Act mandates that an application made pursuant to s 365 of the Act must be filed within 21 days of the dismissal taking effect. The application was therefore 56 days outside of the statutory time limit set out in s 366(1) of the Act.

[2] After conducting a conference in this matter on 28 January 2015, I issued directions requiring the applicant to provide a statement setting out the reasons as to why his application should be accepted out of time and requiring the respondent to then provide any submissions in reply. The applicant and the respondent filed their respective materials on 6 and 9 February 2015 respectively. In determining this application, the Commission has had regard to the conference on 28 January 2015 and the written materials, including the submissions and the Form F8 - General Protections Application and the Form F8A - Employer Response to General Protections Application. Having considered this material, I issued an order refusing an extension of time and dismissed the application on 3 March 2015. What follows are my reasons for doing so.

RELEVANT STATUTORY PROVISIONS AND PRINCIPLES
[3] The relevant legislative framework, governing the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘366 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.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’), in which the Full Bench of the Commission said:

‘[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].’

[5] It is plain from the above extract from Nulty that all of the factors outlined in s 366(2) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing an application to deal with contraventions involving dismissal. Put another way, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application out of time; See: Nulty at para [15].

[6] Relevantly, a recent Full Bench of the Commission in Lombardo v Commonwealth of Australia[2014] FWCFB 2288 (‘Lombardo’) succinctly described the Commission’s decision making process under 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ While Lombardo was decided under the unfair dismissal provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 366(2). I now turn to each of the criteria under s 366(2) of the Act.

CONSIDERATION

Reason for the delay (s 366(2)(a))

Parties’ submissions

[7] In his written statement, the applicant said that he had not been aware that there was a time limit for making this application until he had consulted a lawyer, with experience in employment law on 13 November 2014, although the 21 day statutory time period had already passed by this time. He subsequently filed his application on 19 December 2014 (although he incorrectly said it was filed on 3 December 2014). The applicant did not provide an explanation as to why he had waited a further 35 days to do so. He stated that he had filed the application within 21 days of becoming aware of the statutory time limit. This factor should be taken into account by the Commission.

[8] The applicant complained that Mr Todd Scott, the solicitor advising him in relation to criminal charges he faced which were linked to the reasons for his dismissal, had not advised him of the statutory time limit. Mr Scott had only said that he should seek independent advice in relation to employment matters. He annexed a letter provided by Mr Scott, dated 5 February 2015, which was expressed as follows:

‘I act on behalf of Mr Holstein in relation to criminal proceedings involved alleged misconduct during his employment with Willing and Able Foundation.

I first took instructions in or about early September 2014. I have appeared in Court on 6 November 2014 and 18 December 2014. I am aware that Mr Holstein was dismissed from his employment on 3 October 2014.

I was of the impression that any decision relating to whether or not Mr Holstein was dismissed unfairly would have to wait until after the criminal proceedings had finalised.

It was on 6 November 2014 that I advised Mr Holstein that he should obtain advice from a Legal Practitioner who practices in employment law. Unfortunately, by this time Mr Holstein was out of time to make an application.

As indicated I am a criminal Lawyer and was focused on the criminal proceedings. This may have disadvantaged Mr Holstein in relation to his application to the Fair Work Commission.’

[9] The applicant claimed that the seriousness of the allegations made against him had caused him a great deal of stress and he was not coping well. He had sought the advice of a psychologist, Ms Kelly Lewis and provided a letter from her, dated 4 February 2015, to the applicant’s lawyer. It was expressed as follows:

‘Mr Holstein was referred to me by his GP Dr. Stan Bec under the Better Access to Mental Health scheme on the 10.7.2014. Mr Holstein presented with symptoms consistent with an Adjustment Disorder (mixed - with anxiety and depressed mood) as a result of workplace stressors. Mr Holstein related he has had allegations of inappropriate conduct with a female client and as a result had been suspended from work. He strenuously denied these allegations. At the time Mr Holstein was employed by Willing and Able Port Macquarie. In addition to the above Mr Holstein reported that he sustained a head injury at the age of 18 months that has impacted on him all his life - particularly in his executive functioning. However an assessment of head injury is beyond the scope of this referral and my area of expertise.

Mr Holstein attended an initial assessment on the 15.7.2014. He has participated in eight face to face counselling sessions to date. His next appointment is scheduled for 19.2.15. Mr Holstein reported an onset of symptoms after being advised of the allegations against him. He reported a depressed mood, loss of enjoyment, middle insomnia, agitation and restlessness. He described dwelling and anxious rumination about his future and what may happen. He has started to avoid going out socially for fear of bumping into clients or colleges who may ask question [sic] about why he is no longer at work. Mr Holstein reported that initially he was suspended from work while the allegations were being investigated. He has since been terminated from his employment. I understand the allegations against Mr Holstein will be heard in court on the 5.2.15.

Treatment has focused on mood and anxiety management strategies. Unfortunately Mr Holstein’s stressors will be ongoing until the legal issues have been resolved. He is now also faced with having to find new employment.’

[10] In response, Ms Karol O’Brien, General Manager of the respondent said that, even having taken into account the applicant’s stress, it was ‘remarkable’ that he had not acted immediately, if he believed that his dismissal had been unfair. He had been on notice of the reasons that led to his dismissal since 30 June 2014, when he was suspended during a meeting with Ms O’Brien. Ms O’Brien emphasised that the applicant had not been dismissed due to the criminal charges or the allegations giving rise to those charges.

[11] Ms O’Brien submitted that ignorance of the statutory time limit was ‘no excuse’. She did not believe that the legal advice received by the applicant should mean that an extension of time should be granted. In any event, the applicant had been referred to the Fair Work Ombudsman’s website in the letter of termination.

Findings

[12] I am not persuaded that any of the reasons provided by the applicant for the delay in filing this application, either individually or cumulatively, constitute an ‘exceptional circumstance’ within the meaning s 366(2) of the Act. Ignorance of the statutory time limit is clearly not an ‘exceptional circumstance’ within the meaning of the Act; See: Nulty at para [14]. Indeed, on his own evidence, the applicant waited a further 35 days after becoming aware of the time limit to file his application. The submission by the applicant that he filed the application within 21 days of becoming aware of the statutory time period is wrong. The Act makes clear that an application must be filed within 21 days of the effective date of termination. The application was still 14 days out of time.

[13] In addition, I find that the fact that Mr Scott did not advise the applicant as to the statutory time limit is not an ‘exceptional circumstance’ within the meaning of the Act. Legal assistance or representation is not required to file an application for the Commission to deal with contraventions involving dismissal. Parties frequently represent themselves in such matters before the Commission (though less often and less advisably if the matter becomes the subject of a general protections court application). The relevant application form, available from the Commission, is simple and straightforward and extensive guidance is provided on the Commission’s website as to the lodgement of such an application.

[14] While it is understandable that the applicant would consider the criminal charges against him as a serious and worrying pressing concern, I do not believe that this explanation represents any legal or practical impediment to the filing of an application to the Commission. Given the seriousness of the allegations and the consequences for the applicant, it would have been open to him to simply lodge the application and to seek an adjournment while the criminal charges were dealt with. Moreover, Mr Scott had advised the applicant in relation to the criminal charges, rather than any issues relating to the applicant’s employment. His advice to the applicant was to seek independent advice on applications to the Commission. This was an acknowledgement of the two matters being processed separately. While I note that Mr Scott stated that he was ‘of the view’ that dealing with the criminal charges should take precedence, he had not given express advice to the applicant to this effect. In any event, while the applicant did not press for a finding of ‘representative error’, for the avoidance of doubt, I do not accept that this is a case of ‘representative error’.

[15] Finally, in relation to the applicant’s submission as to his mental health, I am unable to conclude that the preliminary finding by Ms Lewis that the applicant was suffering from an Adjustment Disorder (mixed - with anxiety and depressed mood) or the symptoms reported by him, positively demonstrate that he was incapable of lodging his application within the 21 day timeframe. Indeed, many employees suffer from elevated levels of stress and anxiety following termination of their employment. On one view, this is unexceptional, rather than exceptional. In Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, the Full Bench, by majority (Watson VP and Smith DP) said at para [15]:

‘[15] After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual.’

[16] Accordingly, the reasons provided by the applicant cannot be said to constitute ‘exceptional circumstances’, within the meaning of s 366(2) of the Act.

Any action taken by the applicant to dispute the dismissal (s 366(2)(b))

[17] The applicant acknowledged that he had taken no action to dispute his dismissal because Mr Scott had advised him to make no comment on the matter. He attached an email he had sent to Ms O’Brien, dated 29 September 2014, in support of this submission. It stated that he denied the allegations made against him and went on:

‘I have instructed my Legal Representatives to enter a plea of Not Guilty to all alleged offences. The allegations will be defended in a Court of law.

I have been instructed by my Solicitor, as the matters are currently before the Court, to make no further comment.’

[18] Ms O’Brien put that it was absurd to rely on this advice, given that the letter of termination to the applicant expressly disavowed the criminal charges as being a reason for his dismissal; See para [22].

[19] I observe, firstly, that this email was sent prior to both the applicant’s dismissal and the letter notifying him of his dismissal. Secondly, for the reasons outlined above, I am unable to find the applicant’s legal and tactical concerns in relation to the criminal charges, represented any impediment to his filing an application within time. I find that the applicant took no action to dispute his dismissal until the filing of this application. This weighs against an extension of time being granted in this case.

Prejudice to the employer (s 366(2)(c))

[20] The applicant put that there could be no prejudice to the employer as the facts and circumstances had not changed since mid 2014. Ms O’Brien stated that the applicant’s position had already been filled. Given the circumstances of the case, the seriousness of the findings made by the respondent after what appears to be a lengthy investigation and the medium length of the delay, this factor is a neutral consideration in this case.

Merits of the application (s 366(2)(d))

[21] The applicant claimed that the allegations made against him were false and untrue and that he believed a finding would be made accordingly on both the criminal and civil standards of proof. In his Form F8 application, the applicant said he had been:

‘dismissed without justification and without the opportunity to respond and be heard fairly as there was an unsubstantiated accusation made against me that has to be decided by a court of law + my legal representative has instructed me not to comment or attend any interviews until it is decided one way or the other.

I did not need legal representation until mid August so there was roughly 6 weeks for W+A management to interview me which they chose not to.’

[22] Ms O’Brien denied that the applicant had been dismissed for exercising a workplace right. He was really seeking to argue that his dismissal was ‘unfair and unjust in the circumstances’. The application was therefore misconceived. The applicant had not been dismissed because of the criminal charges made against him. Rather, he had been dismissed after the respondent’s investigation found that the applicant had touched a female supported employee with intellectual and other disabilities on a number of occasions. This was a serious breach of the respondent’s Code of Conduct. The findings of the investigation were provided to the applicant on 26 September 2014 and were expressed as follows:

‘The purpose of this letter is to:

• Advise you of findings and conclusions of that investigation as they relate to you;



• Invite you to comment on these; and



• Invite you to submit any additional information you want me to take into account in determining the action to be taken.

The primary allegation, the findings and conclusions (based on the balance of probabilities) are set out below:

Allegation:

On Thursday 26 June 2014, during a bag run, it is alleged that you touched Rachael O’Raw in a sexual manner when alone with her on the Willing and Able Bus, without invitation and did not stop when asked to stop. The alleged touching included rubbing her legs and breast and touching her vagina.

Conclusion

• UNSUBSTANTIATED: I have concluded that there is insufficient evidence at this time to substantiate the allegation.

Additional findings of the investigation are:

• The complainant Rachael O’Raw has provided consistent and credible evidence that you have touched her on several occasions



• A witness has confirmed that you have touched Rachael O’Raw on several occasions on the bus, that Rachael O’Raw sits behind you on the bus and you routinely reach around and touch her on the leg.



• You confirmed in interview with the investigator that it is not uncommon for you to touch Rachael O’Raw in “friendly ways”



• There is no evidence to support your claim that Rachael O’Raw has touched you often and on 26 June 2014 she rubbed you on the groin with her elbow and that outside of work Rachael places her arms around you from behind and then rubs your leg.



• You have never reported any of these instances of touching to you Manager.



• It has been made clear to you on previous occasions that touching is not permitted at Willing & Able and is a direct breach of our Code of Conduct.

Conclusion of these additional findings

● I have concluded that you touched Racheal [sic] O’Raw on several occasions which is a serious breach of the Foundation’s Code of Conduct.’

[23] The applicant was invited to provide his comments on these findings within five business days. He subsequently attended a meeting with the respondent’s workplace investigator and indicated that he would not be commenting on these matters as his solicitor had instructed him not to participate in the interview. The applicant also provided an email to Ms O’Brien on 29 September 2014 (see para [17]). The applicant was terminated by way of a letter dated 30 September 2014. It was expressed, in part, as follows:

‘I have considered your response dated 29th September 2014, and I note that some of the outcomes of the investigation, that is, the findings and conclusions communicated to you in my letter do not relate to the matters to be defended in a court of law.

I have also considered previous disciplinary warnings that were issued to you on:

● 9th September 2013 for putting your arm around Rachael O’Raw and kissing her on the cheek, at which time you were reminded of the Foundation’s Code of Conduct and Policies prohibiting touching.
● 31st May 2012 for irrational and confronting behavior towards a Supported Employee

This is against a background of 2 previous warnings in 2009 for misconduct.

Based on these considerations I have decided to terminate your employment effective from 3rd October, 2014 on the grounds of serious misconduct.

All monies owing to you including accrued annual leave will be deposited into your current nominated account by 3rd October, 2014.

You are asked not to attend any of The Foundation’s premises at any time and you are prohibited from entry to any of the Foundation’s non-public workplaces or vehicles without the General Manager’s written permission.’

[24] It is important to note that a consideration of the merits of an application, at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis. In Kornicki v Telstra Network Technology Group P3168, a Full Bench of the Australian Industrial Relations Commission said:

‘The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.’

[25] This is not an application for a remedy for unfair dismissal, pursuant to s 394 of the Act. Rather, the applicant alleges that the respondent contravened ss 340, 344 and 345 of the Act. These sections are expressed as follows:

‘340 Protection

(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.

…

344 Undue influence or pressure

An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:

(a) make, or not make, an agreement or arrangement under the National Employment Standards; or

(b) make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or

(c) agree to, or terminate, an individual flexibility arrangement; or

(d) accept a guarantee of annual earnings; or

(e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.


345 Misrepresentations

(1) A person must not knowingly or recklessly make a false or misleading representation about:

(a) the workplace rights of another person; or

(b) the exercise, or the effect of the exercise, of a workplace right by another person.

(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.’

[26] The wording used in the application and the assertions in the applicant’s written statement strongly dispute the findings of serious misconduct made against him and the manner in which the respondent arrived at these findings. While I observe that these matters would be relevant considerations in relation to an application for a remedy for unfair dismissal, they are irrelevant to a consideration of the merits of an application, pursuant to s 365 alleging breaches of ss 340, 344 and 345 of the Act. They certainly don’t go to the exercise of a workplace right.

[27] From the applicant’s material, I cannot be satisfied that the employer took adverse action (in this case, dismissal) due to his having, proposing to exercise or proposing to not exercise a workplace right. Nor is there anything to suggest that the respondent placed undue influence or pressure on the applicant (s 344). There is no evidence that the respondent made false or misleading representations about the applicant’s workplace rights or the exercise of those rights (s 345).

[28] In my view, this is more a case of alleged unfair dismissal, than an application relevant to the Act’s General Protections provisions. I note that the applicant seemingly admitted that it was not uncommon for him to touch Ms O’Raw in ‘friendly ways’. Given this admission and his previous disciplinary record, it is difficult to see how the applicant could claim he had not breached the respondent’s Code of Conduct.

[29] For the reasons I have given above, I find that the applicant’s prospects of success are not strong. This weighs against an extension of time being granted in this case.

Fairness as between the person and other persons in a like position (s 366(2)(e)

[30] Neither the applicant, nor the respondent directly addressed this criterion. While I observe that this case appears to be a conventional dismissal on the grounds of serious misconduct, this is a neutral factor in my consideration.

CONCLUSION

[31] Having considered all of the matters which the Commission is required to take into account under s 366(2) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant the Commission granting an exception to the statutory time limit for the lodgement of this application. In my opinion, the circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application to deal with contraventions involving dismissal must be dismissed. I confirm my order of 3 March 2015.

DEPUTY PRESIDENT

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