Sam Hall v The White Horse Hotel

[2014] FWC 2625

[2014] FWC 2625

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Sam Hall
v
The White Horse Hotel
(C2014/2851)

DEPUTY PRESIDENT BOOTH SYDNEY, 17 APRIL 2014

General protections - extension of time.

[1] Mr Samuel Hall was employed by The White Horse Hotel (the Respondent) in Surry Hills, NSW on 2 June 2013 as a casual bartender. He worked his last shift with the Respondent on 6 January 2014. On 21 January 2014 he lodged an application with the Fair Work Commission (the Commission) pursuant to s.773 of the Fair Work Act 2009 (the Act) to deal with a dispute concerning termination of employment in contravention of s.772 of the Act, using Form F9 - Application for the Commission to Deal with an Unlawful Termination Dispute. He was subsequently advised by the Sydney registry of the Commission that he had made his application using the wrong form. On 29 January 2014 he lodged an application pursuant to s.365 of the Act to deal with a dispute concerning termination of employment in contravention of ss.340, 343 and 344 of the Act using Form F8 - General Protections Application.

[2] Mr Hall was self represented and the respondent was represented by Mr Joshua Meijer of City Country Hotel Management who Mr Hall identified as the contact person for the Respondent and who is based in Orange, NSW. On 31 January 2014 Mr Meijer was forwarded Mr Hall’s application along with a Form 8A - Employer’s Response to Application for the Commission to Deal with a General Protections Dispute to be returned to the Commission within 7 days. A Form F8A has not been received by the Commission.

[3] Mr Hall’s application was allocated to me and I listed the matter for conference for 17 February 2014. Mr Meijer wrote to my Chambers on 5 February 2014 indicating that the date and location of the conference was not convenient to him. After consulting Mr Hall and Mr Meijer the conference was rescheduled to 14 February 2014 by telephone. On that occasion following a conversation chaired by the Commission between Mr Hall and Mr Meijer and a private session between the Commission and Mr Hall, Mr Meijer could not be reconnected to be brought back into the conference. The conference was adjourned to 3 March 2014, however, this date was vacated due to Mr Hall’s unavailability. Mr Hall subsequently advised that he did not wish to attempt another teleconference with Mr Meijer.

[4] As a result of the unsuccessful conference on 14 February 2014 and the subsequent difficulty in scheduling another viable conference I formed the view that all reasonable attempts to resolve the dispute (other than by arbitration) had been, or were likely to be, unsuccessful.

[5] However, I did not issue a certificate pursuant to s.368 of the Act because it was apparent that the application may not have been lodged within 21 days after the dismissal took effect as required by s.365 of the Act. Accordingly, the application is not validly “made” 1 unless a further period, commonly described as an extension of time, is allowed by the Commission.

[6] On 11 March 2014 my Associate wrote to Mr Hall and Mr Meijer in the following terms:

“Dear parties

As you are aware, both parties participated in a teleconference on 14 February 2014. The matter was not resolved at the time.

It appears that the application of Mr Hall was lodged outside the 21 day time period provided by section 366 of the Fair Work Act 2009 (the Act).

In such circumstances, where the application was lodged within the 21 day time period provided in the Act for lodgement of such applications, a certificate pursuant to s.368 of the Act would be signed by the Fair Work Commission (the Commission). This is in order that the applicant can proceed with their dispute either at the Commission (only if both parties agree) or make a general protections court application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of the Act. Without this certificate a court application cannot be made.

However, if the application was lodged outside the 21 day time period, then a precondition to signing a certificate is the granting of an extension of time pursuant to s.366 of the Act.

Therefore, for the Deputy President to be able to make a decision in relation to an extension of time she requires written submissions from both parties. The submissions should address the following criteria outlined in s.366(2) of the Act:

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 Deputy President has also indicated that she is willing to determine the extension of time issue “on the papers”, i.e. there is no need for a formal hearing, if the parties agree to this approach. Please advise if you agree to this approach.

The Deputy President issues the following Directions which are to be strictly adhered to:

Mr Hall is to file with the Commission and serve on the White Horse Hotel any evidence and submissions in relation to his application for an extension of time by 5pm Tuesday 25 March 2014;

The White Horse Hotel is to file with the Commission and serve on Mr Hall its submissions in response by 5pm Tuesday 8 April 2014.

If material is not provided by the abovementioned dates they may not be accepted by the Commission.

If an extension of time is granted, the Deputy President will issue a certificate pursuant to s.368 of the Act for the matter to proceed to the next stage. If the application for an extension of time is refused, Mr Hall’s application will be dismissed.”

[7] On 25 March 2014 Mr Hall provided the Commission with his submission in support of an extension of time and did not seek a further hearing of the matter. Mr Meijer has not complied with directions and hence my decision is based on the submissions received from Mr Hall.

[8] Mr Hall’s application was lodged on day 23 after he worked his last shift with the Respondent. If the date Mr Hall’s dismissal took effect was 6 January 2014 then the application was 2 days out of time. However, Mr Hall was never explicitly dismissed. He concluded that he had been dismissed when he inquired why he was not on the roster for a shift on the weekend of 10 and 11 January 2014 and received an inconclusive response from Mr Meijer on 10 January in the following terms “Rostering is controlled by boo (sic)”. Boo was said by Mr Hall to be the manager.

[9] If the date Mr Hall’s dismissal took effect was 10 January 2014 then the application was lodged on day 19 after his dismissal and was within time.

[10] However, as Mr Hall was a casual employee, in which case each engagement can be considered a separate contract of employment and he worked his last shift on 6 January 2014, I think it is more likely than not that Mr Hall’s dismissal took effect on 6 January 2014. However, I accept his submission that the date of effect of his dismissal was uncertain to him and this was one of the reasons for his late lodgement.

[11] Mr Hall also submits, in effect, that he made a genuine effort to lodge his application within time, since he lodged an application on a Form F9 on 21 January 2014.

[12] Considering the above reasons advanced for Mr Hall’s late lodgement, the action he took to dispute his dismissal by lodging an application, albeit on the wrong form and the fact that he was not aware that he had been dismissed until at least 10 January 2014 I find that exceptional circumstances surround his application.

[13] In relation to the other matters that I must take into account I do not consider that there is prejudice to the employer that would weigh against an extension of time being granted and I am not in a position to draw any conclusions about the merit of Mr Hall’s application. This factor and fairness as between the person and other persons in a like position are neutral factors in my consideration of the application.

[14] In all the circumstances I consider that it would be fair and just for an extension of time to be granted. As the application is validly made and I believe that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, I will issue a certificate to that effect.

DEPUTY PRESIDENT

 1   [2012] FWAFB 3212

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