Ronald Davey v Morrison Family Trust No. 4 T/A Mitchell Lawnmower Centre

[2016] FWC 915

[2016] FWC 915

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Ronald Davey
v
Morrison Family Trust No. 4 T/A Mitchell Lawnmower Centre
(C2015/6234)

DEPUTY PRESIDENT KOVACIC CANBERRA, 11 FEBRUARY 2016

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Davey (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 25 September 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Morrison Family Trust No. 4 T/A Mitchell Lawnmower Centre (the Respondent) on 10 August 2015 in contravention of the general protections provisions of the Act.

[2] As the application had been lodged twenty four days outside the statutory timeframe for lodgement, the Commission issued Directions on 8 October 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[3] The application was listed for a telephone hearing on 26 November 2015 but did not proceed as the Commission was unable to contact Mr Davey despite numerous attempts to do so. Also on that day, the Commission sent an email to Mr Davey stating, inter alia, that if he did not contact the Commission by close of business on 27 November 2015 his application would be determined on the basis of the material before the Commission. Mr Davey has not subsequently contacted the Commission.

[4] 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.

Background

[5] Mr Davey commenced employment with the Respondent on 15 March 2015 as its Workshop Manager.

[6] The Respondent stated in its Form F8A – Employer Response to General Protections Application (Form F8A) that during the week of 15 June 2015 both Mr Davey and his partner contacted the Respondent to advise that Mr Davey had the flu and would not be coming to work and that his supervisor asked that Mr Davey let him know when he would be returning to work. The Respondent further stated that Mr Davey rang on the morning of 22 June 2015 to advise that he would not be coming into work as he had fallen off a ladder the previous day and cut his back, adding that Mr Davey made no further contact with it until it received his general protections application.

[7] Mr Davey wrote to the Respondent on 10 August 2015. A copy of the letter was attached to his application. The Respondent in its submissions denied having received the letter prior to receiving Mr Davey’s application. The letter stated as follows:

“I am apologetic that it is taken me so long to make contact with you but I have been dealing with my health issues which I was upfront and advise you about at the interview and you accepted unlike the store manager.
…

A few things took place since I commenced working for you that finally took its toll on me before I became ill and also had my accident at home where I needed some medical attention back in June/July …

I am grateful to you for offering me the opportunity but due to the attitude of the store manager and my health issues I feel for all concerned, especially for me, that I do not return to work for you.

I wish you and your business well in the future.”

[8] As previously noted, Mr Davey’s general protections application was received by the Commission on 25 September 2015.

The Relevant Legislation

[9] Section 366 of the Act provides:

“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.”

Whether to allow a further period for the application to be made

[10] 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

[11] In his application, Mr Davey stated that he had had numerous medical appointments to attend after 10 August 2015 and that his depression had worsened since the cessation of his employment. In support of this contention, Mr Davey provided a medical certificate which stated that he was “unfit for work/study from Friday, 14 August 2015 to Monday, 30 November 2015 inclusive.” The medical certificate also indicated that Mr Davey was affected by psoriasis and depression, with those conditions respectively described as permanent and temporary in the medical certificate.

[12] The Respondent indicated in its submissions that, even after taking into account Mr Davey’s illness, it considered the period of a further twelve weeks for Mr Davey to lodge his application unacceptable.

[13] While Mr Davey provided a medical certificate indicating that he was unfit for work/study for the period 14 August to 30 November 2015, that medical certificate did not provide any indication as to whether or not Mr Davey was incapacitated to such an extent that he was precluded from lodging his application during the 21 day statutory timeframe. Further, I note that Mr Davey’s application was received by the Commission on 25 September 2015 which is during the period that the abovementioned medical certificate stated that he was unfit for work/study. This does not suggest that Mr Davey was incapacitated for the entire period of the medical certificate. Mr Davey provided no material to support his contention that he had numerous medical appointments to attend after 10 August 2015.

[14] The above analysis does not support the existence of exceptional circumstances.

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

[15] As noted above, Mr Davey wrote to the Respondent on 10 August 2015. While that letter refers to a number of alleged incidents which occurred prior to Mr Davey going on sick leave, it appears from that letter that Mr Davey resigned from his employment. There is nothing in the letter that suggests Mr Davey disputed the cessation of his employment in that letter.

[16] The Respondent did not directly address this factor in its submissions.

[17] The material before the Commission does not show any attempts by Mr Davey to dispute the cessation of his employment. This does not point to the existence of exceptional circumstances.

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

[18] Neither party directly addressed this factor in the material which they provided to the Commission. Accordingly, I consider this factor to be a neutral consideration.

(d) The merits of the application

[19] In his application, Mr Davey contended that he had been discriminated against based on his health and medical appointments, stating that the “Store Manager abused me verbally about my medical condition(s) so I felt he was not supportive.” Mr Davey also referred to his letter of 10 August 2015 to the Respondent in which he stated that he had been spoken to “in an offensive and quite abusive manner by the store manager on more than one occasion” and that he had also been “questioned about the number of health issues I had and asked whether I was dyslexic.”

[20] The Respondent stated in its submissions that it was “at a loss to understand how Mark [Mr Davey] can be claiming compensation for being unable to return to work when it was his decision to leave in the first place.” The Respondent further stated that it did not understand why Mr Davey did not contact it if there were issues that may been able to have been resolved.

[21] While Mr Davey set out a number of behaviours which he found unacceptable or caused him angst, he did not indicate in the material he provided to the Commission how he had been discriminated against by the Respondent. Further, and as noted above, it appears from Mr Davey’s letter of 10 August 2015 that he resigned from his employment. I note also that neither party provided the Commission with a copy of any termination letter.

[22] Based on the material before the Commission, the merits of Mr Davey’s appear less than compelling. This does not point to the existence of exceptional circumstances.

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

[23] Again, neither party directly addressed this factor in the material which they provided to the Commission. Accordingly, I consider this factor to be a neutral consideration.

Conclusion

[24] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 1(Nulty) in the following way:

“[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.

[25] Having considered all of the factors set out in s.366(2) and drawing on Nulty, 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).

[26] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

 1   [2011] FWAFB 975

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