Shaun Caldwell v Strikeforce Cleaning Services T/A Strikeforce Services Pty Ltd
[2018] FWC 939
•12 FEBRUARY 2018
| [2018] FWC 939 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Shaun Caldwell
v
Strikeforce Cleaning Services T/A Strikeforce Services Pty Ltd
(C2018/258)
COMMISSIONER PLATT | ADELAIDE, 12 FEBRUARY 2018 |
Application to deal with contraventions involving dismissal – extension of time – application dismissed.
[1] Mr Shaun Caldwell has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by Strikeforce Cleaning Services T/A Strikeforce Services Pty Ltd (Strikeforce) on 21 December 2017 in contravention of the general protections provisions of the Act.
[2] This application was lodged on 16 January 2018.
[3] In response to question 1.4 of the application Are you making this application within 21 calendar days of your dismissal taking effect? Mr Caldwell answered Yes. However, he also wrote the following:
“If you take into account legal aid was closed due to holidays during this time.
Because of the Christmas period it’s been frustrating trying to get this started.”
[4] Strikeforce filed a form F8A Employer Response on 30 January 2018 which indicated that the Mr Caldwell was not dismissed and raised a jurisdictional objection on the basis that the application was lodged out of time and that the workplace right had not been identified. This decision only deals with the extension of time issue.
[5] On 24 January 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 12 February 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Caldwell and Strikeforce were directed to provide an outline of argument by 1 February 2018.
[6] Mr Caldwell provided a written submission which is summarised as follows:
• Mr Caldwell’s last day of work was on 19 December 2017.
• The first separation certificate stated that Mr Caldwell had resigned on 20 December 2017.
• On 21 December 2017 Mr Caldwell received a text message stating that there were no shifts available.
• The second separation certificate dated 9 January 2018 stated there was a lack of work. As Mr Caldwell was told that there was a lack of work on 9 January 2018, this should be the date of dismissal.
• Mr Caldwell was advised to go to Legal Aid who were closed over the Christmas period and did not open again until 8/9 January 2018.
• On 22 December 2017 Mr Caldwell telephoned Strikeforce and asked why he was dismissed. Mr Caldwell was told that he was not dismissed but that there were no shifts available, Mr Caldwell states ‘I knew then I was out’.
• Prior to his dismissal, Mr Caldwell met with Mr Jason Schutz and two witnesses and it was found that Mr Robert Saladine had changed his timesheets and told Mr Schutz that Mr Caldwell had 30 days off without calling.
• Mr Caldwell provided a number of statements which appear to be from co-workers. These statement address issues of merits rather than the reasons for why the application was filed late.
[7] Strikeforce provided a written submission which is summarised as follows:
• On 21 December 2017, Mr Caldwell was advised by text message that there were no shifts available for him and that he would be contacted if shifts became available. This was communicated to him again by telephone on 22 December 2017.
• On 22 December 2017, Mr Caldwell sent a text message to Mr Wayne Saladine querying whether he would be assigned further shifts. On the same day he also telephoned Mr Saladine and Mr Schutz about the roster.
• The Christmas/New Year period and any office closures or unavailability of services is not an exceptional circumstance.
• No adverse action was taken by Strikeforce and therefore the application lacks merits. Furthermore, no workplace right has been identified by Mr Caldwell.
• Mr Caldwell sought legal advice from Legal Aid before making his application and accordingly he had the opportunity to properly make his application.
• The reason for the delay provided by Mr Caldwell was not out of the ordinary course, unusual, special or uncommon. Any prospective applicant would have been faced with the same circumstances as Mr Caldwell and it would therefore be unfair to extend the statutory deadline for lodgement for Mr Caldwell.
[8] Strikeforce filed a Statement by Mr Jason Schutz which is summarised as follows:
• He is the Managing Director of Strikeforce.
• On 22 December 2017 Mr Schutz was with Mr Wayne Saladine, Manager – Integrated Services, when Mr Caldwell called to ask about his roster.
• After Mr Caldwell hung up on Mr Saladine, he called Mr Schutz immediately. Mr Caldwell asked Mr Schutz when he would be rostered again to which Mr Schutz responded that Mr Caldwell had been late for too many shifts, he was letting the team down, would be placed at the bottom of the roster and would be advised when work becomes available.
[9] A hearing was conducted by way of telephone conference on 12 February 2018. A sound file record of the telephone conference was kept. Mr Caldwell represented himself and Ms Meg McNaughton of Enterprise Law represented Strikeforce. Permission was granted pursuant to s.596(2)(a) of the Act on the basis of efficiency and complexity, without opposition from Mr Caldwell.
[10] At the telephone conference, Mr Caldwell reiterated his previous submissions and advised:
• Prior to 19 December 2017 he worked as a cleaner/bobcat operator for approximately 5 days per week.
• On 21 December 2017 he was advised by text message that there were no more shifts available for him.
• On 22 December 2017 he had a discussion with Mr Schutz, where he was advised he would not be given any more shifts.
• After his dismissal he sought assistance from Legal Aid but could not meet with them until 8 or 9 January 2018.
• The form F8 was completed on 12 January 2018 and the application lodged on 16 January 2018.
[11] At the telephone conference, Strikeforce reiterated the submissions filed and contended that there were no exceptional circumstances. In response to Mr Caldwell’s submissions, Strikeforce contended Mr Caldwell worked an average of 3-4 days per week up to 19 December 2017 and had not worked for them since and that the occurrence of the Christmas/New Year period was not an exceptional circumstance and that no workplace right had been identified by Mr Caldwell.
[12] Section 366 of the Act relevantly states:
“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.”
[13] This general protections application by Mr Caldwell was made on 16 January 2018, 4 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
[14] I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd1 which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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.”
[15] Prior to the 19 December 2017, Mr Caldwell worked on a regular basis of 3 to 4 days per week (according to Strikeforce) or 5 days per week (according to Mr Caldwell). After that date Mr Caldwell has not worked for Strikeforce at all. The fact that Strikeforce subsequently issued two differently expressed Centrelink separation certificates does not change the date of the dismissal.
[16] I find that, for the purposes of this application, Mr Caldwell was dismissed on 22 December 2017 when he had a conversation with Mr Jason Schutz (Strikeforce Managing Director) and was advised, in effect, that there were no shifts available, and we will let you know when we have work available.
[17] I accept that the Christmas/New Year period occurred during the period when Mr Caldwell was considering making a claim, however this is not of itself an exceptional circumstance.2 It should be noted, however, that the Commission was open as per normal during this period except for public holidays, weekends and an additional day of 27 December 2017. Whilst I do not doubt that Mr Caldwell sought assistance from Legal Aid, he could have accessed the required form and lodged the same online, personally or by post during this period.
[18] Mr Caldwell took no other action to contest the dismissal other than completing the form F8 application on 12 January 2018 and lodging the same at the Sydney Registry in person.
[19] The applicant needs to provide a credible explanation for the entire period of the delay,3 but has not done so.
[20] There is no submission that the granting of an extension of time represents prejudice to Strikeforce.
[21] Consideration of fairness relative to other persons in similar positions is a neutral factor.
[22] In terms of the merits of the application whilst there is no workplace right immediately apparent, there is insufficient evidence before me to make an informed assessment and accordingly I have regarded the merits as a neutral factor.
Conclusion
[23] For the reasons I have set out above, I am not satisfied that Mr Caldwell’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order4 reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
Mr S.Caldwell the Applicant.
Ms M.Naughton of Enterprise Law on behalf of the Respondent.
Hearing (Conference) details:
2018.
Adelaide:
February 12.
<PR600361>
1 [2011] FWAFB 975
2 Smith v KJM Contractors Pty Ltd (2010) 201 IR 403
3 Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403
4 PR600362
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