Stephen Meredith v Australian Sports Commission

[2016] FWC 2363

[2016] FWC 2363 [Note: An appeal pursuant to s.604 (C2016/1036) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Meredith
v
Australian Sports Commission
(U2015/13805)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 13 APRIL 2016

Application for relief from unfair dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Stephen Meredith (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 21 October 2015 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by the Australian Sports Commission (ASC – the Respondent) on 16 September 2015 was unfair.

[2] On 23 October 2015 the Commission wrote to Mr Meredith indicating that his application appeared to have been made outside the 21 day timeframe specified in s.394(2) of the Act. The application was received fourteen days outside the 21 day statutory timeframe.

[3] The Commission subsequently issued Directions on 12 November 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[4] The extension of time issue was the subject of a telephone hearing on 21 December 2015. At the telephone hearing, Mr Meredith appeared on his own behalf, while Mr Peter McNulty appeared with permission for the ASC. Mr Meredith filed a witness statement 1 in which he largely set out the chronology of events leading up to the cessation of his employment. The ASC elected not to cross-examine Mr Meredith.

[5] For the reasons outlined below, I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, Mr Meredith’s application cannot proceed and will be dismissed.

Background

[6] Mr Meredith commenced employment with the ASC as a Senior Aquatic Swimming Coach on 18 May 2005. Mr Meredith was employed as a casual employee for the duration of his employment.

[7] The ASC contended that in August 2015 it undertook a review of all casual coaching positions and redrafted the job descriptions for these positions at the Level 4 Coach classification to align with its ongoing operational requirements. The ASC further contended that on 3 September 2015 it offered all casual coaching staff new casual contracts. The ASC contended that Mr Meredith was offered a new casual employment contract as a Level 4 Aquatics coach, with the contract offered not changing Mr Meredith’s remuneration. However, under the contract offered to him, Mr Meredith would no longer retain the title “Head” or “Senior” Coach.

[8] Mr Meredith had a number of concerns regarding the changes to his role and declined to sign the contract offered to him as the rationale for the changes was not clear to him, nor was the impact of the changes on his position.

[9] Mr Meredith subsequently had a number of discussions with staff from the ASC’s Human Resources area and on 9 September 2015 foreshadowed his intention to put a submission to the ASC’s Chief Executive Officer (CEO) regarding his concerns/issues.

[10] On 16 September 2015, the ASC advised Mr Meredith that his services were no longer required because it had determined that it no longer required a Level 5 Aquatics Coach.

[11] As previously noted, Mr Meredith’s application was received by the Commission on 21 October 2015, fourteen days outside the 21 day statutory timeframe.

The Relevant Legislation

[12] Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

394(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

394(2) The application must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).

394(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) whether the first person became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”

Whether to allow a further period for the application to be made under s.394(2)

[13] 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.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[14] Mr Meredith submitted that the key reason for the delay in lodging his application was that he was very focussed on the review process he had initiated with the ASC’s CEO. Mr Meredith also submitted that he was not aware of the 21 day timeframe for lodging an unfair dismissal application until after the CEO’s review process concluded on 16 October 2015.

[15] The ASC submitted that the reasons for the delay relied upon by Mr Meredith did not constitute exceptional circumstances. In support of that submission, the ASC relied upon the Full Bench decision in Z Gao v Department of Human Services 2 (Gao), contending that the internal review process initiated by Mr Meredith did not preclude him from lodging his unfair dismissal application prior to that review concluding. The ASC also contended that the decision of Deputy President Asbury in Mr Tony Merlino v Coles Supermarkets Australia Pty Ltd3 (Merlino) should not be followed in this case as the circumstances in Merlino could be distinguished from those existing in this case for a number of reasons.

[16] The Full Bench in Gao considered an appeal against a decision not to grant an extension of time in circumstances where the applicant in that case had initiated an internal review of matters relevant to his dismissal. Specifically, the Full Bench in Gao determined as follows:

“[10] The first ground is that the Deputy President failed to take into account that the delay was in part due to DHS’s conduct in not responding to Mr Gao’s request for further review of the matters said to be relevant to the dismissal. After DHS had provided an initial response to Mr Gao in relation to his dismissal, Mr Gao made a request that DHS further review some of the circumstances. The request for further review was made on 9 July 2010 and not responded to by DHS. Mr Gao made a further request on 3 December 2010. This ground cannot be sustained. The Deputy President did take these events into account and referred to them in his decision. Mr Gao no doubt believes that the Deputy President should have attached more significance to them, but in our view the Deputy President was entitled to reach the conclusion he did on the totality of the material. Furthermore, Mr Gao’s request that DHS further review the dismissal did not constitute a circumstance excusing the delay in lodging the application. A further review could have been sought even after an application had been lodged.” (Underlining added)

[17] With regard to the ASC’s submissions regarding Merlino, I consider the circumstances in this case to be different from those in Merlino in that while Mr Meredith did not lodge his submission with the ASC’s CEO until after his dismissal, he had first foreshadowed his intention to seek a CEO review of his concerns/issues on 9 September 2015, i.e. a week in advance of his dismissal. By contrast, in Merlino, the applicant had not foreshadowed a review request prior to his dismissal. Indeed in Merlino, the applicant’s review request was only lodged after the termination meeting when he was given the impression immediately after that meeting that an internal review could result in his dismissal being overturned, with that impression not subsequently corrected for some time. Based on the material before the Commission, that is not the case in this matter.

[18] Finally, with regard to Mr Meredith’s submission that he was not aware of the 21 day timeframe for making a general protections application, I note that in Cheyne Leanne Nulty v Blue Star Group (Nulty) 4a Full Bench of the then Fair Work Australia determined that:

“[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...”

[19] By way of background, the reference in Nulty to s.366(1)(a) refers to the provision in the Act which deals with the time for making a general protections application in respect of a dispute involving dismissal. The provision is in similar terms to s.394(2)(a) of the Act.

[20] Taken together, the above considerations do not point to the existence of exceptional circumstances.

(b) Whether the person became aware of the dismissal after it had taken effect

[21] It is not disputed that Mr Meredith was aware that his employment ceased on 16 September 2015.

[22] I therefore consider this factor to be a neutral consideration.

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

[23] Mr Meredith contended that he did dispute his dismissal.

[24] The ASC submitted that, apart from seeking a review of the Senior Coach position, Mr Meredith did not dispute his dismissal.

[25] Based on the material before the Commission, it appears that Mr Meredith raised a number of concerns/issues in his submission to the ASC’s CEO, including his dismissal and issues going to the rationale for the changes to his role and what those changes meant for him. In circumstances where Mr Meredith raised a range of issues in that submission, I consider that this factor only marginally points to the existence of exceptional circumstances.

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

[26] Mr Meredith did not directly address this factor in his submissions.

[27] The ASC submitted that the absence of prejudice to the employer was not a sufficient basis to grant an extension of time 5. The ASC also contended that it would be prejudiced as a result of having to devote time and resources to defending Mr Meredith’s application as well as incurring expenses in participating in any future Commission proceeding were an extension of time granted. While I note the ASC’s submission in this regard, the ASC’s concerns do not constitute prejudice in the sense that it would be disadvantaged in defending the application as a result of the delay in lodging the application.

[28] Against that background, I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[29] Mr Meredith contended that he had a strong case were the merits of his application to be heard. Mr Meredith further submitted that the proposed duties of the Level 4 position he was offered involved a substantial change to his actual duties, highlighting that his Senior Coach position was the only position affected by the changes made by the ASC. Mr Meredith also disputed that he had been afforded procedural fairness. Finally, Mr Meredith stated at the telephone hearing that it had been his intention to sign the new casual contract as he had no issues with the actual agreement itself, however he did not wish to be pressured into doing so without fully understanding the rationale for the changes made to his role and what those changes meant for him.

[30] The ASC submitted that Mr Meredith’s application was without merit, contending that Mr Meredith did not accept the new casual contract offered to him which formalised his existing duties and remuneration. The ASC also contended that Mr Meredith was afforded procedural fairness.

[31] Based on the material before the Commission, I am unable to form a considered view as to the merits of Mr Meredith’s application. Accordingly, I consider this factor to be a neutral consideration.

[32] I note Mr Meredith’s abovementioned submission that it had been his intention to sign the new casual contract and observe that with perhaps a bit more meaningful dialogue between the parties and patience all-round the eventual result in this case may have been avoided.

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

[33] Neither party directly addressed this factor in their submissions. I therefore consider this factor to be a neutral consideration.

Conclusion

[34] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Nulty in the following way:

“[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.”

[35] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I am not satisfied at there are exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy.

[36] Accordingly, Mr Meredith’s application will be dismissed. An order to that effect will be issued in due course.

Appearances:

S. Meredith on his own behalf.

P. McNulty for Australian Sports Commission.

Hearing details:

2015.

Canberra (telephone hearing):

December 21.

 1   Exhibit M1

 2   [2011] FWAFB 5605

 3   [2015] FWC 1185

 4 (2011) 203 IR 1

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

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