Shane Gullefer v Skilltech Consulting Services Pty Ltd

[2015] FWC 8278

[2015] FWC 8278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Shane Gullefer
v
Skilltech Consulting Services Pty Ltd
(C2015/5125)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 1 DECEMBER 2015

Application to deal with contraventions involving dismissal.

[1] On 13 August 2015 Mr Shale Gullefer (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Skilltech Consulting Services Pty Ltd (the Respondent)

[2] The Applicant had accepted a position of Contract Manager and signed a contract with the Respondent on 4 June 2015. He was scheduled to commence work in Darwin on 6 July. He says that he was dismissed on 3 July and the dismissal took effect on that day.

Alleged Contravention

[3] The Applicant submits that he was dismissed because he had advised the Respondent that he had been diagnosed with cancer on 3 July. On the same day, he received a letter from the Respondent withdrawing the offer of the job. A breach of s.351(1) of the Act in respect of physical or mental disability is alleged. Section 352 is also mentioned, but it is hard to see how this section applies. The letter from the Respondent was expressed as a “withdrawal of offer of employment”.

Respondent’s Submissions

[4] The Respondent, in its F8A response, specified the employer as “Utility Services Group Holdings Proprietary Limited” trading as “Field-Force”. This issue was further debated at the hearing. It appears that there is still doubt as to the correct identity of the employer. In any event, it is a wholly owned subsidiary of Spotless Group Holdings Limited and Mr Douglas, from Spotless, who appeared at the hearing, took responsibility as the effective employer.

[5] The Respondent denies that it took the action that it did because of the Applicant’s medical condition. Rather, it was because the Applicant was not able to fulfil the contract or advise when he would be able to in the future. The Respondent does not deny that the letter of “withdrawal” was in fact a dismissal.

Relevant Legislation

[6] Section 366 of the Act provides:

“366 Time for application

366(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).

366(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.”

Approach of the Commission

[7] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[8] On 28 August 2015 the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was set down for hearing by telephone on 26 October before Deputy President Kovacic. It was then re-allocated to me and heard on 19 November 2015.

[9] The Applicant was represented by Mr M. Grove, solicitor. The Respondent was represented by Mr J. Douglas. Mr Grove was granted permission to appear pursuant to s.596 of the Act.

Matters to be taken into account pursuant to s.366(2)

[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] The Applicant underwent abdominal surgery in the United Kingdom. Shortly thereafter, on 1 July 2015, he returned to Australia. He then commenced cancer treatment almost immediately after receiving the diagnosis. He began chemotherapy on 5 August 2015. The Applicant contacted the Cancer Council in Darwin who arranged legal representation with Ward Keller on 23 July. Despite some initial contact with Ward Keller on 6 August, the application was not lodged until one week later.

[12] The Applicant sought to rely on the alleged uncertainty of the 3 July letter. However, I am satisfied that it should be treated as a dismissal letter.

[13] No doubt the Applicant’s medical condition and treatment is a factor relevant to the delay. However, the extent of the delay cannot be explained by this. The Cancer Council had advised him of possible legal advice in mid-July and he did not start chemotherapy until 5 August

[14] The reasons for delay cited by the Applicant do not establish exceptional circumstances

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

[15] There is no evidence of the Applicant challenging his dismissal prior to the filing of the application

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

[16] I consider this a neutral factor in this case

(d) The merits of the application

[17] The Respondent submits that it took adverse action against the Applicant because he could not fulfil the contact of employment rather than his physical disability which arose from his cancer diagnosis.

[18] I consider that the s.351(1) claim has some merit. There is room for argument about the application of the contract. However, I do not consider that this is sufficient, given the other factors, to grant an extension

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

[19] This factor was not addressed and has not been taken into account

Conclusion and Order

[20] Having considered all of the factors set out in s.366(2), 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). Accordingly, the application is dismissed.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Shane Vernon Gullefer under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

M. Grove, solicitor with S. Gullefer Applicant.

J. Douglas with S. Ellich for the Respondent.

Hearing details:

2015

Telephone Hearing:

November 19.

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