Sean Winter v EDI Rail Bombardier Transportation (Maintenance) Pty Ltd: 2XM Recruit Pty Ltd

[2021] FWC 178

[2021] FWC 178

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 – General Protections

Sean Winter
v
EDI Rail Bombardier Transportation (Maintenance) Pty Ltd: 2XM Recruit Pty Ltd
(C2020/1410)

DEPUTY PRESIDENT LAKE BRISBANE, 14 JANUARY 2021

Application to deal with a general protections dispute involving dismissal – extension of time– circumstances not exceptional – application dismissed.

[1] This decision concerns an application by Sean Winter (Applicant) under s 365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366 requires that such an application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2).

[2] The Applicant alleged that his dismissal occurred on 5 February 2020. The Applicant was engaged as a casual by 2XM Recruit (the Second Respondent) on a labour hire contract to perform a role within EDI Rail Bombardier (the First Respondent). The assignment had an anticipated 12-month engagement period. The application was filed outside the requisite 21 days.

[3] The Applicant filed an F8 General Protections application on 7 March 2020. The period of 21 days ended at midnight on 27 February 2020, and the application was therefore lodged 9 days out of time. The Applicant asks the Commission to allow a further period for the application to be made. The Respondents oppose the granting of an extension of time.

[4] The file was assigned to myself on 25 May 2020 and I issued directions on 11 June 2020.

[5] A hearing was conducted via telephone on the 16 July 2020. Following the hearing, but prior to this Decision being issued, the Full Court of the Federal Court handed down judgment in Coles Supply Chain Pty Ltd v Milford, which clarified the Commission’s obligations with respect to particular general protections cases. 1 As such, further submissions were called for on 7 October 2020.

Consideration

[6] The Act allows the Commission to extend the period within which an application under s 365 must be made only if it is satisfied that there are ‘exceptional circumstances’. This establishes a high hurdle for an applicant. 2

[7] The meaning of ‘exceptional circumstances’ was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd, 3 where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also stated that 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 can be considered exceptional.

[8] In order for the Applicant’s general protections application to proceed, it is necessary for him to obtain an extension of time under s 366(2) to make the application. This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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 similar position.

Reason for the delay

[9] The Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable 4 or a reasonable explanation.5 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd a Full Bench of the Commission noted:6

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.

[10] The period of the delay is the period commencing immediately after the time for lodging an application expired, and ending on the day the application was lodged. However, the circumstances from the date on which the dismissal took effect can be considered in assessing the explanation for the delay.

[11] The Applicant submits that the reason for the delay in his words were ‘due to experiencing a serious mental health crisis’ and submitted two medical certificates from his GP to support his contention. The first dated 11February 2020 states that ‘due to current medical condition, would not be compatible with current duties, from the 11^th February 2020’. The second certificate postdates the statutory period and is dated 3March 2020. During the intervening period the Applicant contended that he had a counselling session with Open Arms Veterans, as he was eligible for a rehabilitation program due to his previous military service.

[12] The second medical certificate dated 3 March 2020, which is identified as an ‘initial certificate’, had a duration of from 3 March 2020 to 6 March 2020 and identifies the capacity to work in three categories: heavy, medium and light. The Applicant’s capacity to work in each of the categories was limited to 0 hours per day. Specifically, in the light work category a notation states that he suffers poor concentration/judgement and the effect is to reduce/limit his intellectual functions. The certificate further asses his capacity for rehabilitation as 4-6 hours per day.

[13] The Applicant further contends that he attended his psychiatrists on 13 February 2020, however he did not tender any evidence from this appointment attesting to his inability to submit an application during the 21 days.

[14] Without supporting evidence from his psychiatrist to provide evidence of the Applicant’s inability to make an application to the Commission, the only evidence I have for the delay during the 21 day period is the first medical certificate, which does not specifically indicate how his condition may mean that he was unable to make an application to the Commission.

[15] Even if psychiatric evidence had been tendered, the condition outlined would need to be of relative significance to satisfy the statutory hurdle. It would need to effectively impinge the Applicant’s cognitive ability to the point where he could not lodge his Form 8. Nothing presented indicates that this would be the case.

[16] There is nothing in the first certificate that suggests he was so unwell as to be unable to lodge the claim during the period. It is not uncommon for employees that have been terminated to have a period of time where they are impacted by the loss of work. The classification of “not compatible with current duties” provides little specificity as to why his ability to submit an application was impacted.

[17] Further, there was a period of a several days prior to seeing the GP that he could have made an application (after the expiry of the first certificate on 6 March 2020) and no further material was tendered to support the contention that he was unable to complete an online form during the period.

[18] I appreciate that the Applicant was experiencing some mental health issues during the 21 days and that the documentation provided attest that he suffered some impairment after 3March 2020. However, there was no explanation of how his mental health during the 21 days was so impaired as to be unable to submit his application. Absent this explanation, I am not satisfied the above is enough the delay.

.

[19] The Applicant has provided some explanation for the reason for delay and this weighs in favour of an extension.

Action taken to dispute the dismissal

[20] The Applicant initiated his complaint regarding bullying and harassment and for a general protection claim after the 21-day period. There had been no mention of any bullying or harassment by either the First Respondent or the manager working for the First Respondent during his employment.

[21] The Applicant states in his submission that he initially wanted to resolve the matter privately. To that end he sent a series of emails between 1 and 3 March 2020, which included a Terms of Settlement for $150,000. The Applicant made allegations that he was bullied and intimidated and alleged several contraventions of the Act. Nothing about this course of action strictly prevents the Applicant from preparing his material; while it indicates a secondary avenue for a potential conclusion, it should not be considered the only avenue. To engage solely in conciliation, to the detriment of one’s substantive claim is not an exceptional circumstance and should not weigh in favour. It is also worth stating that engaging in settlement discussions indicates some degree of cognition: it is questionable how much more mental fortitude is needed to submit a form, over engaging in settlement discussions.

[22] I consider this a neutral factor.

Prejudice to the employer

[23] I cannot identify any particular prejudice that would accrue to either of the Respondents if an extension of time were granted. I consider this a neutral factor.

Merits of the application

[24] The Applicant was engaged in August 2019 on a labour hire arrangement by the Second Respondent for an estimated 12 month period with the First Respondent. In December 2019, the Applicant unsuccessfully applied for a vacant role with the First Respondent. Upon hearing that he was unsuccessful the Second Respondent alleges that the Applicant stated that he no longer wished to work for the First Respondent and advised them accordingly. In the Respondents’ submission there was still approximately 6 months more work available to the Applicant, however he indicated that he did not wish to work for the First Respondent.

[25] The Applicant submitted that he was forced to resign due to a course of conduct of bullying by the First Respondent. The bullying matters were not raised during his employment or in his conversation on 6 February 2020, where he indicated that he no longer whished to work for the First Respondent.

[26] An application to extend time is essentially an interlocutory matter that does not allow

for the merits to be fully tested. I consider the above neutral in considering whether an extension should be granted, but will address the question of whether the Applicant was dismissed independently.

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

[27] I am not aware of any circumstances that are relevant for the purposes of examining the question of fairness as between the Applicant and other persons who might be considered to be in a similar position. I consider this to be a neutral consideration in the present matter.

Existence of Exceptional Circumstances

[28] The time limit that applies to the exercise of a person’s right to bring an application under s 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[29] Having regard to all of the matters that I am required to take into account under s 366(2), I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application. Aside from the Applicant having taken some steps to contest the dismissal, none of the factors in s 366(2) weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

Was the Applicant Dismissed?

[30] In the event that the above factors are considered exceptional, the application would still fail, as the Applicant cannot be considered to have been “dismissed” within the meaning of the Act.

[31] The Respondents submits the Applicant stated that following his unsuccessful application for a permanent role with the First Respondent that he no longer wished to continue working for the First Respondent. The Second Respondent being a labour hire contractor, maintains that they would continue to look for opportunities for him. Further, the Applicant indicated he was agreeable to this.

[32] The Second Respondent is clear that they did not terminate the Applicant’s employment. The First Respondent still had work for the Applicant that he was originally engaged to do for a further 6 months.

[33] To dispute a dismissal there needs to be a dismissal, as per the statutory definition. There has been a lack of evidence supporting the view that the Applicant was dismissed. The Applicant was a casual with a labour hire agency fulfilling a fixed term role with the First Respondent. He indicated directly to the Second Respondent that following an unsuccessful recruitment experience for a permanent role that he no longer wished to continue in the role he was performing. This effectively ended his work with the First Respondent, but not with his employer the Second Respondent. The Applicant stated that he was satisfied with the Second Respondent continuing to look for suitable roles.

Conclusion

[34] I am not satisfied that exceptional circumstances exist to grant an extension of time, nor am I satisfied that the Applicant was dismissed within the meaning of the Act.

[35] I decline to grant an extension of time under s 366(2). Accordingly, the Applicant’s application under s 365 of the Act is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.

 2   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].

 3   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty).

 4   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].

 5   Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].

 6   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd[2018] FWCFB 901, [39].