Roderick Bell v Tanswells Unlimited Pty Ltd
[2024] FWC 2626
•24 SEPTEMBER 2024
| [2024] FWC 2626 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 – General Protections
Roderick Bell
v
Tanswells Unlimited Pty Ltd
(C2024/4484)
| COMMISSIONER PERICA | MELBOURNE, 24 SEPTEMBER 2024 |
Application to deal with contraventions involving dismissal
On 15 May 2023, Mr. Roderick Bell made an application to the Fair Work Commission under s 365 of the Fair Work Act2009 (Cth) (the Act) alleging he was dismissed from his employment with Tanswells Unlimited Pty Ltd (Tanswells) in contravention of Part 3-1 of the Act.
Tanswells objects to the application on two jurisdictional grounds. The application was not lodged within 21 days as required by s 366(1) of the Act and Mr. Bell was not dismissed.
The Commission’s powers to deal with a dismissal dispute under s 368 of the Act include mediation or conciliation. If all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, it then issues a certificate allowing an Applicant to take its claim to a Court. However, the Commission can only exercise these powers after determining any jurisdictional issues, as held by the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford.[1]
Before dealing with the dispute, I must be satisfied the application was not made out of time or that the time for filing the application should be extended. If I find that the application was not made in time and that an extension of time should not be granted the application will be dismissed.
For the following reasons, I do not grant an extension of time to Mr. Bell and therefore his application is dismissed.
Procedural history
On 9 August 2024, directions were issued for the filing of material and a notice of listing issued for determination of the jurisdictional objections. Both parties filed material and the matter was heard on 18 September 2024 by Microsoft Teams. Mr. Bell appeared for himself and Mr. Enslow appeared for Tanswells.
Background
Tanswells operates Tanswell’s Hotel in Beechworth. Mr. Bell was employed as a waiter at the hotel. In his application, Mr. Bell alleges he was dismissed “without notice two weeks before the date I had given for his resignation”. Mr. Bell argues he ceased to be allocated shifts and this amounted to a termination at the initiative of the employer.
Tanswells denies Mr. Bell was dismissed. Mr. Jed Enslow, the venue manager at the hotel gave evidence that Mr. Bell had “for over two months told other staff he was leaving around the date he alleges he was dismissed”. After he heard this, he confronted Mr. Bell and asked him “when he was planning to leave us”. Mr. Enslow’s evidence was “He had given me a date, as he did not want to be working at the pub at Easter and had planned to move to Melbourne”. He also said, “After that conversation, [Mr. Bell] would not communicate with me or other management staff about future plans. Mr. Tanswell admitted in his oral evidence that after he had been told by Mr. Bell that he was going to move to Melbourne around Easter he ceased allocating him to shifts.”
Mr. Bell claims one of the reasons for his termination was his exercise of workplace rights regarding complaints he had made in relation to series of incidents where he reprimanded a group of six young patrons for their rowdy behaviour in the hotel. It is not contested that in one of these incidents one of the patrons assaulted Mr. Bell by slamming him to the ground.
Mr. Bell also claims another reason for his termination was he did not come from the same friendship group as the young patrons and the management of the Hotel. He claims this was discrimination on the basis of social origin.
When must an application for the Commission to deal with a dispute be made?
Before dealing with the dispute, I must be satisfied that the application was not made out of time.
Section 366(1) of the Act provides:
(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).
When did the dismissal take effect?
It is contested that Mr. Bell was dismissed. For the purposes of the extension of time application, I accept and the date of his dismissal was 4 March 2024.
The application was filed late
The application was made on 1 July 2024. It was made 119 days after 4 March 2024, the claimed dismissal date. The Act prescribes a twenty-one-day time limit to file an application. This application is 98 days late.
The Commission may allow for a further period under s 366(2) if it is satisfied 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.
A collective assessment of all the criteria is required to determine whether there are exceptional circumstances to allow for a further period.[2]
Reason for the delay
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[3]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr. Bell has not provided any reason for any part of the delay.[4]
Mr. Bell’s reasons for the delay
Mr. Bell gave the following reasons for the 98 day delay.
Fear of a boycott of his Beechworth taxi business
He had delayed making the application for fear that potential customers of his taxi business in Beechworth would boycott his business if he had made the application earlier. He feared the boycott because his potential customers in Beechworth had affiliations with the hotel either because of their relationship with management or because they were customers of the hotel. As I understood his evidence, his assessment was that in a regional Victorian town, such a boycott was likely.
Mr. Bell filed documents related to his taxi business. Those documents included a notice dated 24 May 2024 that this commercial passenger vehicle registration (CPV) was cancelled for non-payment of fees. A further notice dated 15 April 2024 that his CPV registration was cancelled for non-payment of fees. The third document dated 1 July 2024 (the date the application was filed) refers to an application for reinstatement of his driver accreditation he had made earlier. That document explained the accreditation had not been issued because of ‘information obtained in relation to [Mr. Bell’s] driving history.”
In his oral evidence, Mr. Bell explained that by 1 July 2024, he was no longer accredited to drive his taxi. It followed the fear of a boycott by the potential customers of his taxi business no longer applied. He therefore felt free to make the application from that point.
Fear of physical reprisals
Mr. Bell argued he was fearful of reprisals from the young patrons he had admonished if he brought the application. This led to a delay. Other than to claim he had this fear, Mr. Bell provided no evidence to support a reasonable basis for this fear.
Mr. Enslow, in his written material, claimed Mr. Bell’s “fear of reprisal or personal injury is unfounded”. He went on: “Many of the staff and I have considered [Mr. Bell] a close friend and have cared for him long before his employment at Tanswells. I care for [Mr. Bell] and have helped him on many occasions, so it is unclear why he would feel fear of reprisal or personal injury”. Mr. Bell conceded, “I do not fear Jed, he has good intentions.”
Consideration
The Full Bench in Nulty v Blue Star Group Pty Ltd[5](Nulty) held that
“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…”
Mr. Bell made a tactical and commercial decision not to make an application for the fear it would affect his taxi business. This tactical or commercial decision may or may not have been rational. This fear is not an external fact, occurrence or condition that impacted on his ability to file the application earlier.
The fear of physical reprisals by reason of making the application was not adequately explained. In his oral evidence he identified the youth who had assaulted him as the person who he feared would retaliate if he brought the application. He had not interacted with that person after his assault occurred. It does not seem credible that a threat of physical violence would ensue once he made the application.
Neither of these reasons count towards a finding of exceptional circumstances.
Action taken to dispute the dismissal
It was not contested Mr. Bell took no action to dispute the dismissal before he filed his application on 1 July 2024. This factor weighs against a finding of exceptional circumstances.
Prejudice to the employer
Mr. Enslow argues Tanswells suffered prejudice because of the delay. In his oral evidence, he stated it is a feature of employment in hospitality in regional Victoria that there is a high turnover of staff. As a result of the delay, employees who could have given evidence in the proceeding have left their employment with Tanswells. Given the length of the delay, I accept this as a factor against a finding of exceptional circumstances.
Merits
In Kornicki v Telstra-Network Technology Group,[6] 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). This case is routinely cited as a guide to the merit assessment for the purposes of an extension of time under s 366. In Kornicki, the Commission held:
“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.”
Consideration
Was Mr. Bell dismissed?
There is a direct conflict in the evidence whether Mr. Bell resigned or was dismissed. Mr. Bell argues that he gave his resignation was then terminated by Tanswells before the end of the notice period because from that point, Tanswells offered him no shifts.
Mr. Enslow strongly denies Mr. Bell was terminated. His evidence was he had been informed by staff that Mr. Bell had been planning to leave. After hearing this, he confronted Mr. Bell, and Mr. Bell confirmed he was leaving and that he had set a date. After that exchange, Mr. Bell “ceased communicating with him and other management staff about his future plans”. He conceded in his oral evidence that after the discussion with Mr. Bell, he did not give him any more shifts.
Claim of dismissal based on an exercise of workplace rights to make a complaint regarding the incidents concerning the six young patrons
Mr. Bell claims that his complaints regarding the six young patrons was an active reason in the decision to terminate his employment. He alleges “the whole incident and the dramas with the young men and my willingness to speak out against it precipitated Jed’s uncommunicated dismissal from my employment” In his oral submissions he said he had persisted in pursuing his complaints concerning his altercation with the patrons and this led to his termination.
Mr. Enslow in the F8A, his written submissions, and his oral evidence refutes the claims made by Mr. Bell and his account of the incidents. He refutes Mr. Bell’s evidence that, despite the assault, management took to no steps to deal with or punish the bad behaviour of the six young patrons. It is his evidence that steps were taken to ban the individuals from the hotel.
Claim of dismissal based on “social origin”
Mr. Bell claims the dismissal was motivated by the fact that he was not part of the social group in Beechworth to whom the patrons he had complained of, and the management at the hotel, belonged. Mr. Bell described himself as an “outsider” in Beechworth. Mr. Enslow denies this.
Although the term “social origin” is not defined in the Act the case law establishes that its meaning is informed by “elements that a person adopts from the surrounding culture. These include but are not limited to, language or mother tongue, customs such as initiation into a religious community, affirmation of adulthood and such things as dress and diet.”[7]
I am not sure whether belonging to a peer or social group in a regional Victorian town would fall within the meaning of the term “social origin” as it is understood in the general protections provisions of the Act. A different peer group in rural Victoria would not, as far as I am aware, have a different language, religious initiation ceremonies, or have different dress or diet. His claim is no more than arguable.
Having examined these materials, it is evident to me the question whether Mr. Bell was terminated, and merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Commission to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[8]
Given the contested facts, it is not possible to assess the merits of the application. The merits of the application are neutral in a consideration of whether an extension of time should be granted.
Fairness with others in a similar position
Neither party raised any issues in respect of this matter, and I am satisfied it is a neutral factor in this case.
Is the Commission satisfied that there are exceptional circumstances taking into account these matters?
Reasons for delay: Mr. Bell’s assessment of the commercial risk to his taxi business as a reason for delay in filing the application is a tactical financial decision of his own. It is not a circumstance that is out of his control. His fear of physical retribution if he had made an application has no evidentiary foundation. Neither of these reasons support a finding of exceptional circumstances. This factor counts against an extension of time under s 366(2)(a).
Action to dispute the dismissal: It is not contested that Mr. Bell took no action to dispute his alleged dismissal prior to lodging the application on 1 July 2024. This factor counts against an extension of time under s 366(2)(b).
Prejudice to the employer (including prejudice by reason of the delay). This application was filed 98 days late. Tanswells argues it suffered prejudice because the length of the delay has meant many staff members who could have been called to give evidence on the matters in issue are not available. This is due to the high turnover of staff in hospitality in regional Victoria. I find there has been prejudice to the employer. This matter counts against an extension of time being granted under s 366(2)(c).
Merits of the application: The facts in issue in this proceeding are strongly contested. In those circumstances, it is difficult to make an assessment on the merits of the application. It follows this is a neutral factor on an assessment of whether an extension of time should be granted under s 366(2)(d).
Fairness Between persons: No submissions were made on this issue. This factor is neutral on the question whether there are exceptional circumstances under s 366(2)(e).
Conclusion
I have considered each of the criteria set out in s 366(2). The reasons for the delay under s 366(2)(a), the lack of action to contest the dismissal under s 366(2)(b), the prejudice to the employer under s 366(2)(c), all count against my satisfaction that there are exceptional circumstances justifying an extension of time. The merits of the application under s 366(2)(d) and the fairness between persons under s 366(2)(e) are both neutral as to whether I am satisfied that there were exceptional circumstances justifying an extension of time.
Three factors count against an extension of time being granted, the other two are neutral considerations. Therefore, on balance, taking into account all the factors in s 366(2) I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.[9]
As I have decided not to grant an extension of time under s 366(1)(b), it is not necessary for me to reach a definitive view on the ‘no dismissal’ objection.
COMMISSIONER
Appearances:
Mr. Roderick Bell, the Applicant, for himself
Mr. Jed Enslow on behalf of the Respondent.
Hearing details:
18 September 2024
Microsoft Teams
[1] [2020] FCAFC 152.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[3] Ibid.
[4] Ibid [41].
[5] [2011] FWAFB 975, [13].
[6] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[7] See the General Protections Benchbook regarding “social origins”.
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[9] PR779546.
Printed by authority of the Commonwealth Government Printer
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