Riley Larsen v NthStar Constructions Pty Ltd
[2022] FWC 1498
•14 JUNE 2022
| [2022] FWC 1498 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Riley Larsen
v
NthStar Constructions Pty Ltd
(C2022/1491)
| DEPUTY PRESIDENT LAKE | BRISBANE, 14 JUNE 2022 |
Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – application for extension of time dismissed.
Mr Riley Larsen (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of his employment by NthStar Constructions Pty Ltd (the Respondent).
The Applicant began his employment on 26 July 2021. The Applicant sent a resignation letter to the Respondent on 21 January 2022 and his last day of work was 4 February 2022. The Applicant’s position is that he was forced to resign and that this amounted to constructive dismissal. The Respondent’s position is that the Applicant resigned. The application was lodged with the Commission on 2 March 2022.
Representation
Both parties sought to be represented. To allow the matter to be dealt with most efficiently – given the legal question of whether an extension should be granted – I was satisfied that the present case is one in which both parties and the Commission would benefit from the assistance of legal representation to allow for the efficient conduct of the case. Accordingly, both parties were granted permission to be represented. Ms Maleana Whitelaw of HR Outlook represented the Applicant, while Mr Garry Andrews of Andrews Law represented the Respondent.
Was the application lodged within time?
Section 366(1) of the Act requires that an application for general protections dismissal be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.
The Applicant lodged his application on 2 March 2022. He accepts that his application was made some 5 days outside of the 21 days required under s.366(1) of the Act.
The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made. Further, the Respondent refutes the claim of the Applicant that he was dismissed.
The Applicant’s submissions
The Applicant submitted that on 21 January 2022 at 3.37pm he sent an email to Mr Terrence Golden, Director titled “Letter of Resignation” enclosing a letter of resignation. By reply email the following day the Respondent accepted the Applicant’s resignation with effect from 4 February 2022 and stated that he would be required to repay his sign on bonus and the pro-rata costs it had paid towards his technical qualifications as he had failed to meet the minimum service requirement of two years stipulated in his contract of employment.
On 24 January 2022, by reply email, the Applicant refused to repay the amounts sought on the basis that he had been forced to resign to protect his reputation from the perceived persistent unlawful conduct of the Respondent. By reply email later that day, the Respondent stated that a formal response would be provided as soon as possible and that any further comment by the Applicant would be “… taking this further for a defamation/slandering claim”. By a further reply email later that day, the Applicant stated that he had no intention to slander the Respondent and noted that the matter was private and personal, requiring discussion between only himself and the Respondent.
On 27 January 2022, the Applicant sent an email to the Respondent following up on his latest email from 24 January 2022. In this email the Applicant relevantly stated:
“As previously stated, I am wanting to resign from Nthstar Constructions peacefully and without being financially reprimanded.
To date, I have not received further communications from yourself or Terry. Could you or Terry please advise if Nthstar Constructions are willing to accept the reasons for my resignation are beyond my control and will void the contractual obligation of repaying $8,472.53 to Nthstar Constructions.
…
Please note that if I do not receive communications from Nthstar Constructions by COB Friday 28th January 2022, it will be assumed my resignation reasons have been accepted by Nthstar Constructions and the contractual obligation to repay the “Sign on Bonus” and pro rata training fees totalling $8,472.53 will be annulled.
On 1 February 2022, by reply email, the Respondent rejected the Applicant’s reasoning for resignation, accused him of using the Respondent as a “stepping stone” to achieve his training goals and demanded repayment of the $8,472.53 within seven days.
On 2 February 2022, by reply email, the Applicant expressed concerns of being victimised for choosing to resign and communicate the reasons for the forced resignation. The Applicant further requested that the Respondent respond within 72 hours, which he submits was an additional opportunity to resolve the matter. The Respondent did not provide a response.
On 14 February 2022 the Applicant commenced an unfair dismissal application in the Commission. Later that day, the Commission notified the Applicant that it may not have the power to deal with the application as he did not meet the Minimum Employment Period and gave the Applicant until 28 February 2022 to provide additional documentation for consideration.
On 16 February 2022 the Respondent sent a letter to the Applicant demanding payment of the $8472.53 sum, threatening court action if intellectual property was not destroyed or used and stated that the Applicant’s claim for unfair dismissal was “ludicrous and misguided”.
On 21 February 2022, by letter, the Applicant reiterated that the repayment of $8472.53 would not be made, that he had not used any intellectual property of the Respondent and provided an offer to settle the matter which would be open until 28 February 2022.
On 25 February 2022, by letter, the Respondent sent a letter to the Applicant. The Applicant alleges that this letter did not respond to the Applicant’s letter of 21 February 2022. The Respondent assumed that the Applicant’s representative was a legal practitioner. By reply email later that day, the Applicant’s representative confirmed that she was acting on behalf of the Applicant as a “HR Advocate” and not in any legal capacity.
On 28 February 2022, as the dispute between the parties had not resolved, the Applicant discontinued his unfair dismissal application.
The Applicant contends that the above course of conduct evinced several attempts to resolve the matter before he was forced to make an application to the Commission to deal with a general protections dispute in relation to his dismissal.
The Respondent’s submissions
The Respondent submits that the time limit for making the application should not be extended pursuant to s.366(2) of the Act, primarily because it has no prospects of success as the Applicant was not dismissed and further there were no exceptional circumstances to grant an extension of time.
The Respondent provided further submissions on the grounds that the Applicant resigned.
Consideration of whether a further period should be granted
Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(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.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:
“[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.”
For the Applicant’s application to proceed, it is necessary for him to obtain an extension of time under s.366(2) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s. 366(2) of the Act.
I asked each party to address each of the factors set out in s.366(2) of the Act.
Consideration
Reason for the delay (s.366(2)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[5] the Full Bench noted at [39]:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]
The Applicant lodged his unfair dismissal application within time but discontinued the matter. He then lodged the general protections application on 2 March 2022. He does not provide an explanation for the delay in lodging the general protections application. He was on notice from 14 February 2022 that the unfair dismissal application may not be the appropriate application. However, he did not address this until after the 21-day period expired. He had from 14 February 2022 until 28 February 2022 to make a correct application and he did not. He provided no exceptional circumstances as reason for the delay.
I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.
Action taken to dispute the dismissal (s.366(2)(b))
The Applicant did not dispute his dismissal generally with the Respondent. I note that there is correspondence submitted by the Applicant between the parties. However, this correspondence focuses on the repayment of $8472.53.
This factor therefore does not weigh in favour of an extension of time.
Prejudice to the employer (s.366(2)(c))
The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[7] I consider this factor to be neutral.
Merits of the Application (s.366(2)(d))
In Kornicki v Telstra-Network Technology Group,[8] the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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.”
However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[9]
The Applicant claims that he was forced to resign on the grounds of reporting safety issues. This is contended by the Respondent, who claims this action is taken to avoid the repayment of his training which is owed under his employment contract.
Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.366(2)(e))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[10]
The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.
Conclusion
Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am not satisfied that exceptional circumstances exist in this matter.
I order that the application be dismissed.
DEPUTY PRESIDENT
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[5] [2018] FWCFB 901.
[6] See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[9] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].
[10] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
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