Stephen Whitten v Nuline Windows Pty Ltd

[2021] FWC 2396

[2021] FWC 2396

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Stephen Whitten
v
Nuline Windows Pty Ltd
(C2021/333)

DEPUTY PRESIDENT COLMAN MELBOURNE, 30 APRIL 2021

Application under s 365 – whether applicant dismissed – application lodged out of time – no exceptional circumstances – application dismissed

[1] Stephen Whitten has made an application under s 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Act. He contends that his former employer, Nuline Windows Pty Ltd (company), contravened various provisions of Part 3-1 by dismissing him wholly or partly for proscribed reasons. Mr Whitten seeks a range of remedies including compensation.

[2] Contrary to the apparent expectation of Mr Whitten, the role of the Commission in an application under s 365 is not to determine whether the respondent contravened the general protections provisions, but to undertake the specific tasks assigned to it by subdivision A of Division 8 of Part 3-1. Section 368 states that, if an application is made under s 365, the Commission ‘must deal with the dispute (other than by arbitration)’. A note to s 368 explains that the Commission may deal with the dispute by mediation or conciliation, or by making a recommendation. Section 368(2) provides that a conference conducted by the Commission for the purpose of dealing with the dispute must be in private. Section 368(3) states that, if the Commission is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, it must issue a certificate to that effect. Section 369 provides that the Commission may then arbitrate the substantive dispute only if the parties agree. Otherwise, the Commission’s role ceases, and an applicant may proceed to make a general protections application in a court.

[3] Section 366 provides that an application under s 365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2). That sub-provision states that the Commission may allow a further period if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in subsections (a) to (e), namely: the reason for the delay; any action taken by the person to dispute the dismissal; prejudice to the employer; the merits of the application; and fairness as between the person and other persons in a like position.

[4] In cases where the respondent denies that it dismissed the applicant, the Commission is required to determine whether there has been a dismissal (Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; see also Ahmad v MPA Engineering Pty Ltd[2020] FWCFB 5365). In the present matter, the company contends that it did not dismiss Mr Whitten, because he chose not to accept a reasonable alternative role and therefore resigned. The company further submits that, if it did dismiss Mr Whitten, the dismissal occurred on 23 December 2020, and that Mr Whitten’s application, lodged on 21 January 2021, is out of time, and that there are no exceptional circumstances warranting an extension of time under s 366(2). I am therefore required to determine whether Mr Whitten was dismissed; whether, if he was dismissed, the application was lodged out of time; and if so, whether to extend time under s 366(2).

The evidence

[5] The facts surrounding the end of Mr Whitten’s employment are largely uncontested, although the characterisation of those facts is in dispute. It is common ground that Mr Whitten had sustained a workplace injury, for which he was in receipt of WorkCover payments. Mr Whitten’s return to work plan included limitations on the hours he was able to work each week. He had been working reduced hours as a foreman for several years.

[6] Mr Reinder van der Woude, the company’s managing director, gave evidence that the limitations on Mr Whitten’s duties were creating difficulties for the company, and that on 18 December 2020 he met with Mr Whitten and told him that the company needed a full-time foreman. Mr van der Woude told Mr Whitten that the statutory 52-week period of modified duties had long since ended, that the company had nevertheless tried to accommodate his needs, but that the company would now be ending his foreman role. Mr van der Woude offered Mr Whitten a role as a fabricator, on the same hours and the same pay. Mr Whitten was given a letter confirming these matters. It noted that a new foreman had been appointed who would start work in January 2021. The letter also stated that if Mr Whitten did not want to accept the alternative role, he would be paid a redundancy. Mr van der Woude said in his evidence that he later realised that as a small business, the company was not required to make redundancy payments on termination.

[7] On 21 December 2020, Mr Whitten told Mr van der Woude that he did not wish to accept the fabricator role and that he did not want to work under somebody else. He asked Mr van der Woude about the redundancy proposal and how much he would be paid. Mr van der Woude’s evidence was that he clarified at this meeting that there would be no redundancy and encouraged Mr Whitten to consider the alternative role. Mr Whitten was given until 23 December 2020 to make his decision.

[8] On 23 December 2020 Mr Whitten met with Mr Jeroen van der Woude, the company’s general manager, and confirmed that he did not wish to accept the alternative role. Mr van der Woude gave evidence that after the meeting, Mr Whitten then handed back his phone and work keys (Mr Whitten said that he was asked to hand them back) and that Mr Whitten then went into the factory to say goodbye to other workers. Mr van der Woude carried Mr Whitten’s tools to his car. Mr Reinder van der Woude then prepared a letter to Mr Whitten, stating that by refusing the alternative role he had chosen not to continue working for the company, and that it considered him to have resigned. The letter further stated that the company had that day paid out 238 hours of accrued leave, and one month’s notice. Mr van der Woude emailed the letter to Mr Whitten’s personal email address that day.

[9] Mr Whitten gave evidence that he did not resign from his employment. He said that on 21 January 2021 he was told by his WorkCover insurer that his employment with the company had terminated by reason of his resignation on 23 December 2020, and that he was shocked to learn that the company had provided false information to the WorkCover representative. He then contacted ‘Workers First’ and asked them to prepare a general protections complaint.

Consideration

[10] In my opinion, the company dismissed Mr Whitten. Although it offered him an alternative position on the same hours and the same pay and performing the fabricator work that had comprised most of his recent duties, it was qualitatively different from his substantive position. It was a lower position that was not supervisory in nature. He would no longer be the foreman but would report to the newly hired foreman. He would no longer be responsible for the organisational and oversight functions of the foreman position. The dictionary in s 12 of the Act notes that ‘dismissed’ is defined in s 386. Although that section is found in Part 3-2 of the Act, which concerns unfair dismissals, the definition is cast in general terms. Section 386 states that a person has been dismissed if the person’s employment has been terminated ‘on the employer’s initiative’. It is now well settled that ‘employment’ in this context means the employment relationship. I consider that the company genuinely tried to maintain the employment relationship by offering Mr Whitten the alternative role, but he was not obliged to accept this role, and when he declined it, the company decided to end the employment. That was the company’s choice, not that of Mr Whitten. This does not mean that the company behaved unreasonably. It simply means that for the purpose of s 365, Mr Whitten was dismissed.

[11] The next question is whether Mr Whitten’s application was lodged out of time. Plainly it was. The dismissal occurred on 23 December 2020. Mr Whitten acknowledged in his evidence that he understood that if he did not accept the alternative position, the company would end his employment. I accept his contention that he was given no choice in this regard. He did not resign. But that does not mean that there was no dismissal. There was indeed a dismissal, and it occurred on 23 December 2020. I accept the evidence of Mr Jeroen van der Woude about what occurred after the meeting on 23 December 2020. Clearly, Mr Whitten was saying goodbye, because he knew that his employment had ended. He conceded this in his evidence. The letter of 23 December 2020, which Mr Whitten acknowledged reading the next day, confirmed that this was the case. Although the letter stated that it was Mr Whitten’s decision to leave the company, and referred to this as a resignation, it is clear that the company regarded the employment as having ended, and Mr Whitten knew this. On that same day, as the letter stated, Mr Whitten’s accrued leave was paid out. There could have been no reasonable doubt after 23 December 2020 that Mr Whitten’s employment had terminated.

[12] Mr Whitten failed to offer any convincing arguments for his contention that the employment ended only on 21 January 2021. He said that this was the date on which he learnt that the company had told the WorkCover insurer that he had resigned. I accept that he objected to the characterisation of the termination of his employment as a resignation. But it cannot have come as a surprise to him that this is what the company had told WorkCover, because this is what it told him in the letter of 23 December 2020. The contention that the dismissal occurred on 21 January 2021 does not make sense and I reject it.

[13] The 21-day period within which s 365 required Mr Whitten to lodge his application ended at midnight on Wednesday 13 January 2021. The application was not lodged until 21 January 2021. In order for the Commission to deal with his dispute, Mr Whitten requires an extension of time. The Commission does not have a general discretion to extend time if it considers it reasonable in the circumstances to do so (contrast s 185(3)(b)). It may only extend time if it is satisfied that there are exceptional circumstances, having regard to the matters in s 366(2). I adopt the broad approach to this expression expounded by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, and now consider the matters in s 366(2).

[14] The Act does not specify what ‘reason for the delay’ (s 366(2)(a)) might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. Mr Whitten said that he was not aware of the 21-day lodgement requirement until sometime over the Christmas period, and that he was unfamiliar with the Commission’s procedures. But this is not an acceptable reason for delay. Information about these matters is available on the Commission’s website. Mr Whitten also said in his oral evidence that he had instructed his representatives to lodge the application and believed that they had done so, but his witness statement clearly suggests that this instruction came after his conversation with the WorkCover insurer on 21 January 2021. There is no basis to conclude that there was any representative error. Mr Whitten also submitted that a reason for his delay was his belief that he would receive a redundancy payment. I do not consider that there was any reasonable basis for Mr Whitten to hold this belief. I accept Mr van der Woude’s evidence that he corrected this matter during the meeting on 21 December 2020. But in any event, a belief or expectation that a redundancy payment would be made is not an acceptable reason for delay in lodging a general protections application under s 365. There is no logical connection between these matters. I am not satisfied that Mr Whitten has established an acceptable or reasonable explanation for the delay. This weighs against an extension of time.

[15] There is no evidence that, save for lodging this application, Mr Whitten took any action to dispute the dismissal (s 366(2)(b)). I cannot identify any particular prejudice that would accrue to the company if an extension of time were to be granted (s 366(2)(c)). In my view, these are neutral factors.

[16] As to the merits of the application (s 366(2)(d)), Mr Whitten contended that the reason for his dismissal was, or was connected to, his exercise of a workplace right, namely his WorkCover application and his associated absences and the limitations on his duties. He further contended that he had been coerced to resign from his position for a prohibited reason, and that although the coercion did not achieve this outcome, it nevertheless contravened the Act. Mr Whitten’s contention, as I understand it, is that the company contravened ss 340 and 343 of the Act. The company contended that it did not take adverse action against Mr Whitten, and that if it did, this action, including any dismissal, occurred not for a proscribed reason, but for genuine business reasons. It submitted that it had accommodated Mr Whitten’s limitations well beyond the one-year period prescribed by law, that other employees and managers had had to attend to the organisational aspects of the foreman’s role because of Mr Whitten’s restrictions, and that it needed a full-time foreman. It contended that it ended Mr Whitten’s foreman role for entirely legitimate reasons.

[17] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. There is insufficient material before me to make any detailed assessment of the merits. In my view Mr Whitten has at least an arguable case, and the company has a prima facie defence. I consider the merits of the application to be a neutral factor.

[18] Mr Whitten contended that an exceptional circumstance in this case was the fact that he only learnt on 21 January 2021 that the company regarded his employment to have ended by reason of his resignation and that it had relayed this to the WorkCover insurer, but I reject this. As I have said, the letter of 23 December 2020, which Mr Whitten read, stated that this was the company’s position. It is not surprising that this is what it conveyed to the WorkCover insurer. Even if Mr Whitten had only learnt of this on 21 January 2021, I fail to see how it could be an exceptional circumstance, given Mr Whitten’s acknowledgement that he knew that the company regarded the employment as having ended on 23 December 2020.

[19] 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. Having regard to all of the matters that I am required to take into account under s 366(2), I am not satisfied that exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application. 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.

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

DEPUTY PRESIDENT

Appearances:

B. Newman for Mr Whitten
J. van der Woude for Nuline Windows Pty Ltd

Hearing details:

2021
Melbourne
29 April

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