Shane Arch v Insurance Australia Group Services Pty Ltd

[2019] FWC 7527

[2019] FWC 7527

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 – General Protections

Shane Arch
v
Insurance Australia Group Services Pty Ltd
(C2019/3223)

DEPUTY PRESIDENT LAKE BRISBANE, 31 OCTOBER 2019

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 Mr Shane Arch (the Applicant)under s. 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal. Section 366 of the Act 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) of the Act.

[2] The Applicant was employed by Insurance Australia Group Services Pty Ltd (the Respondent or the Employer)on 17 July 2006 and was dismissed on 30 April 2019. His completed application under s. 365 of the Act was not lodged in the Commission until 4 July 2019. The period of 21 days ended at midnight on 21 May 2019. The application was therefore lodged 44 days out of time. The Applicant asks the Commission to allow a further period for the application to be made. The Respondent opposes the granting of an extension of time.

[3] On 18 September 2019, I issued directions for the parties to file outlines of submissions and any witness statement or other documents they sought to rely on prior a telephone hearing that was listed for 2 October 2019. Despite the non-compliance of the Applicant to the directions, this was allowed by me given the reasonably tight turnaround time that I had originally made for the Applicant to file its material and submissions. The extension of time for the Applicant to file their material did not unduly prejudice the Applicant, the Respondent or the Commission. For example, the Respondent was allowed a further period to make their submissions.

[4] I heard the matter by telephone on 2 October 2019. The Respondent was represented by an in-house ‘Employee Relations Specialist’, Ms Mei-Lim Smith. The Applicant was self-represented. At the conclusion of the hearing and with the Respondent’s consent, I allowed the Applicant to file some further medical material which I have considered, giving due weight on the ability of the Respondent to respond to such material.

Consideration

[5] The Act allows the Commission to exercise its discretion 1 to extend the period within which an application under s. 365 of the Act must be made only if it is satisfied that there are ‘exceptional circumstances’ which warrant an extension of time. This establishes a high hurdle for an applicant.2

[6] 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 (Nulty) 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.

[7] In order for Mr Arch’s general protections application to proceed, it is necessary for him to obtain an extension of time under s 366(2) of the Act 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

[8] 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 or reasonable explanation. In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, 4a Full Bench of the Commission noted that the absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all of the circumstances must be considered. 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.

[9] As we know, the Applicant was terminated from his employment on 30 April 2019 and the deadline for lodgment was 21 May 2019. TheApplicant’s completedapplication was lodged with the Commission on 4 July 2019. He was therefore 44 days outside the statutory time limit. The Applicant had previously sent in an incomplete application, which was filed with the Commission on 22 May 2019. Had this been correctly and completely submitted, it would have been only one day late.

[10] The reasons for the Applicant’s delay in filing his application, according to him, were due to a multiple of unfortunate circumstances. These included: issues relating to his health (specifically his mental health, however, this also manifested in physical symptoms); a belief (now erroneous) that the issue might be resolved with the Employer without the involvement of the Commission; and the Commission’s e-portal of lodgment was undergoing maintenance on the evening of the final day in which the Applicant’s application was due, being 21 May 2019. Reasons were also put by the Applicant that he received a large volume of documents on 13 May 2019 from the Respondent’s Workers Compensation Insurer, Allianz. It was submitted by the Applicant that he had a desire to wait until he had reviewed these documents and have further discussions with the Employer as to whether his workers compensation claim could be re-opened or appealed, or possibly assist him in the making of a general protections claim.

[11] I do not consider any of these exceptional circumstances which warrant me exercising my discretion to allow an extension of time.

[12] Whilst sympathetic to the Applicant’s medical condition and noting that the Commission is in receipt of medical and other documentation which confirms the Applicant has been diagnosed with mental health issues, this cannot explain the length of the delay, nor does not necessarily prescribe an inability to submit his complete application form on time. The Applicant, with such health issues, was among other things able to: engage lawyers to discuss his claim; liaise with the Employer about reopening his workers compensation claim; and file an incomplete application with the Commission on 22 May 2019. I do not view how this medical condition, in light of these actions, prohibited the Applicant from filing a complete application within the prescribed time.

[13] Similarly, I do not consider how the argument that he had hoped to resolve the dispute with the Respondent without the assistance of the Commission aids the Applicant’s argument. It may be the case that applicants and respondents attempt to resolve matters following a dismissal without the involvement of the Commission (and this should be encouraged), but this cannot be a legitimate exceptional circumstance if negotiations fall through to say that a member of the Commission should exercise their discretion to allow an extension of time, especially in this case where the Applicant was aware of the final date he was required to lodge his application (having obtained legal advice regarding this), and yet the Applicant still filed his completed application 44 days after the prescribed time.

[14] I further do not consider that the Applicant filing an incomplete application on the 22 May 2019 assists the Applicant’s case. This is for two reasons. Firstly, it was still late. Secondly, the Commission’s records indicate a number of attempts from the Commission to contact the Applicant to file complete application. The Applicant did not contact the Commission back to complete the lodgment of his application. A shorter delay in filing the Applicant’s application may have assisted the Applicant, but we are not to know this necessarily. Further, regarding the Commission’s e-portal undergoing maintenance on the evening of 21 May 2019, I can confirm that this occurred; however, this did not prohibit the Applicant from filing an application at any stage before this period, and did not prevent the Applicant from filing an incomplete application on 22 May 2019. He could have filed a complete application on this date as the maintenance only lasted a matter of hours.

[15] Finally, the argument that the Applicant was waiting for the documents from the Workers Compensation Insurer, Allianz, also does not assist the Applicant’s submission. I note the original workers compensation claim was lodged at the end of 2018 and was declined in February 2019. I refer to my learned colleague, Commissioner Williams’ decision in Smith v Signature Security Group[2010] FWA 7803, where the Commission held that no extension would be granted to an applicant who was pursuing a workers compensation claim, as a general protections claim was a separate and independent claim that was not related to the workers compensation claim. In any event, the Applicant did not need to wait for these documents to lodge his application and this nevertheless not an exceptional circumstance warranting an extension of time.

.

[14] The absence of an acceptable or reasonable explanation for the delay in lodging a completed application weighs strongly against the Applicant’s request for an extension of time.

Action taken to dispute the dismissal

[16] Any action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the granting of an extension of time. 5

[15] The Applicant demonstrated, through correspondence tendered, that during the 21 days that he challenged the termination of his employment. I accept that the Applicant took steps to contest his dismissal, aside from filing this application. This consideration weighs in favour of an extension of time.

Prejudice to the employer

[17] The Employer maintains that prejudice would be experienced by it as it now has two employees who would be key witnesses who were involved in the management of the Applicant’s employment who have ceased working for the Employer. They are either on extended leave or are no longer employed by the Respondent. If the Applicant had filed his application within the statutory period they would have had the opportunity to obtain responses from these employees prior to their departure. Forty four days is not an insignificant period of time. I therefore consider there to be at least some prejudice to the employer if an extension of time is to be allowed.

Merits of the application

[18] 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). 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.”

[19] The Applicant has not explicitly identified how the Respondent acted in contravention of the general protections provisions of the Act, either in his late application or in the Applicant’s subsequent submissions.

[20] The Applicant, if an extension of time were granted, needs to identify that he has experienced an adverse action as a result of exercising a workplace right. In this case the adverse action is clear, being the termination of employment; however, the Applicant does not necessarily make out the workplace right or protected attribute he relies upon. He states that he has experienced unfair treatment; however, this is not made specific to a prohibited reason. Without fully adducing the evidence, however, I weigh this criterion as neutral.

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

[21] 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.

Conclusion

[22] The time limit that applies to the exercise of a person’s right to bring an application under s. 365 of the Act 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.

[23] Having regard to all of the matters that I am required to take into account under s. 366(2) of the Act, I am not satisfied that the requisite exceptional circumstances exist. Aside from the Applicant having taken steps to contest the dismissal, none of the factors in s 366(2) of the Act particularly weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[24] I decline to grant an extension of time under s 366(2) of the Act. Accordingly, Mr Arch’s application under s 365 of the Act is dismissed. I so Order.

Hearing

By Telephone: 2 October 2019

Appearances

Applicant: Mr Shane Arch (self-represented)

Respondent: Ms Mei-Lim Smith (Respondent’s ‘Employee Relations Specialist’)

Printed by authority of the Commonwealth Government Printer

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 1   Halls v McCardle and Ors [2014] FCCA 316.

 2   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

 3   Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/a Joy Mining Machinery [2010] FWA 1394.

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at [39].

 5   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

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