Scott Virgin v Total Tools Bunbury

[2017] FWC 946

[2017] FWC 946

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Scott Virgin
v
Total Tools Bunbury
(C2017/312)

DEPUTY PRESIDENT DEAN SYDNEY, 20 FEBRUARY 2017

Application to deal with contraventions involving dismissal.

[1] On 18 January 2017, Mr Scott Raymond Virgin (the Applicant) made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by Total Tools Bunbury (the Respondent) in contravention of the general protections provisions in the Act. The Respondent denies the allegations and contends that the Applicant was dismissed within the qualifying period of employment due to poor performance and behaviour issues.

[2] The Applicant commenced employment with the Respondent on 8 August 2016 until his employment was terminated on 16 November 2016. The Applicant’s general protections application lodged on 18 January 2017 was therefore made some 42 days outside the 21 day period prescribed by the Act and cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission).

[3] The matter was listed for hearing by telephone on 16 February 2017 to consider the extension of time issue. At the hearing, the Applicant appeared on his own behalf. Ms A Cartwright (HR Manager) and Mr C Cook (Managing Director) appeared for the Respondent.

Consideration

[4] The Commission may allow a further period for a general protection application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.366(2) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time.

[5] 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.

[6] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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.”

[7] I now deal with each of the provisions of s.366(2) of the Act.

Reason for the delay

[8] The Applicant’s written submissions stated that the reason for the delay was due to difficulty in obtaining advice (including because of the Christmas holiday period) and financial difficulties following his dismissal.

[9] He said that he contacted ‘Fair Work’ on or around 24 November 2016 and left a voicemail message requesting information about a general protections application. The Applicant was unsure whether ‘Fair Work’ was the Fair Work Ombudsman or the Fair Work Commission. In answer to a question from me, he said that he had reviewed material on the Fair Work Commission’s website, including completing a quiz regarding his eligibility to pursue a claim in relation to his dismissal. He stated that through this process he discovered he would not be eligible to make an unfair dismissal application because of his short length of service with the Respondent. He later confirmed that he had seen a reference on the Commission’s website to a 21 day time limit.

[10] The Applicant also submitted that he was not experienced in making these types of claims and needed time to review the extensive literature on the Commission’s website.
[11] The Respondent argued that the period between the Applicant’s dismissal on 16 November 2016 and the last day of the 21 day period on 7 December 2016 was not within a ‘holiday period’ and the Applicant could have made the application within the required time.

[12] I accept that the Applicant may have suffered financial difficulties following his dismissal. However, it is not unusual for employees who had been dismissed to be in this situation and have limited resources for obtaining legal advice. It is also not unusual for employees who have been dismissed to be unfamiliar with the relevant legislation.

[13] I do not find that the Applicant’s explanation of the delay due to the holiday period acceptable. The Applicant’s dismissal took effect on 16 November 2016 and I am not convinced that the Christmas holiday period would have had any great impact in delaying the filing of the application until 18 January 2017.

[14] I am satisfied, based on the Applicant’s evidence, that he had reviewed the Commission’s website in sufficient detail to have been aware of the 21 day time limit.

[15] On the material before me, I am not satisfied that the explanation of delay advanced by the Applicant constitutes an exceptional circumstance.

Any action taken by the person to dispute the dismissal

[16] Apart from the Applicant’s submission that he was not given the opportunity to respond to the allegations made against him and that the decision to dismiss him was biased, there is no evidence to suggest that the Applicant has taken any action to dispute his dismissal other than lodging the present application. This weighs against a finding of exceptional circumstances.

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

[17] The Respondent does not claim that it would suffer any prejudice if the application to extend time is granted. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

The merits of the application

[18] In the matter of Kornicki v Telstra-Network Technology Group 2 the Commission considered the principles applicable to the extension of time discretion under the former 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. 3

[19] For the purpose of determining whether to grant an extension of time to the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’ 4

[20] The Applicant contended that the termination of his employment by the Respondent was in contravention of s.340 of the Act. The Applicant raised a number of matters in his application which he contended constitute the alleged contraventions. Those matters include:

a. he was not provided with written or verbal warning of his performance;

b. he was not advised that failure to improve his performance would result in his employment being terminated;

c. he was not given reasonable amount of time to improve and gain support to develop changes;

d. he was not provided with reasonable opportunity to respond to all allegations against him;

e. he was not offered or allowed to have a support person present at any meeting concerning his potential dismissal.

f. he was not given correct annual leave entitlements.

[1] The Applicant’s submissions went on to respond to the allegations made against him by the Respondent. I have considered those submissions but will not set them out here.

[2] The Respondent denied taking any adverse action against the Applicant. The Respondent submits that adverse action can only occur when there is a demonstration of a workplace right and the Applicant failed to identify any such rights. The Respondent contended that the application is without merit and should be dismissed.

[3] Having reviewed the Applicant’s general protections application and his submissions, it appears that his claim is essentially an unfair dismissal claim. It is also clear that the Applicant has not served the minimum employment period and is therefore not eligible to make an unfair dismissal claim.

[4] A general protections application is not a fall-back option for employees who believe they have been unfairly dismissed but are unable to pursue an unfair dismissal claim. Neither the material relied upon by the Applicant nor his evidence adduced at the hearing demonstrate any real prospects of success to his general protections claim. This weighs against a finding of exceptional circumstances.

Fairness as between the person and other persons in a similar position

[5] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 5 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’6

[6] There were no submissions or evidence that there were any persons in a similar position and I find it to be a neutral consideration.

Conclusion

[7] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[8] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

S Virgin on his own behalf.

A Cartwright and C Cook for the Respondent.

Hearing details:

2017.

Melbourne, Perth and Sydney (by telephone):

February 16.

 1   [2011] FWAFB 975.

 2   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 3   Ibid.

 4 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 5   [2015] FWC 8885.

 6 Ibid at [29].

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