Tom Singleton v Balmain & Co Employment Pty Ltd
[2020] FWC 3426
•30 JUNE 2020
| [2020] FWC 3426 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Tom Singleton
v
Balmain & Co Employment Pty Ltd
(C2020/1972)
DEPUTY PRESIDENT CROSS | SYDNEY, 30 JUNE 2020 |
Application to deal with contraventions involving dismissal.
[1] On 28 March 2020, Mr Tom Singleton (“the Applicant”) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant was employed, by Balmain & Co Employment Pty Ltd (“the Respondent”). The Applicant commenced his employment with the Respondent on 7 February 2020. His dismissal took effect on 6 March 2020, and he was notified of his dismissal on that date.
[2] General protections applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (“the Commission”) may allow. Taking as the point of calculation the date when the dismissal took effect, an application for a remedy should have been lodged by Friday 27 March 2020. The application was therefore lodged outside of the time prescribed and was lodged one day after the last day on which such an application could have been made.
[3] The parties indicated that they were content for me to determine the matter of extension of time on the contents of the F8 and F8A provided by both parties.
Relevant Facts
[4] The Applicant provided the following explanation in his Form F8:
“I kindly ask that the Commission pardon the late submission of my application which amounts to approximately one business day. The late submission is due to not owning a computer or having one readily available to complete the online process. I had commenced the process of filling out a hard copy and found out on Thursday 26th March that this was no longer an option.
Not having my own computer presented additional challenges due to the recent (statewide) closures of Library facilities. This inevitably made the logistics of completing the form more challenging. As such, the submission of my form has been dependent upon the availability of my representative and availability of their laptop.
My Representative’s laptop is a work laptop and was not available for my personal use until Saturday 28th March as they have required it for work purposes during these unprecedented times. I sincerely hope the Commission grant me the consideration that the above satisfies the basis of exceptional circumstances and as such accepts my late submission.”
[5] The Applicant’s representative was identified as Ms Lily McAllister, who was not a lawyer or paid agent
[6] The Respondent provided the following explanation in the Form F8A:
“The application for General Protection was lodged outside of the specified timeframe. Tom refers to not having a computer readily available during this time or access to a library facility due to COVID-19. Given COVID-19 closures of libraries did not come into effect until midnight of 25th March 2020. In addition, Tom has been in possession of Balmain's iPad since his termination, as demonstrated by the 'Find my phone' function being able to locate the iPad to Tom's home address until 26/3/2020. Because of this, we believe Tom had time to lodge this application on time.”
[7] Public Libraries were closed as a “non-essential service” on 23 March 2020, by NSW Government mandate, operational from 24 March.
Consideration
[8] Section 366 of the Act determines the permissible time limit for a general protections application. Section 366(1) of the Act provides:
“366 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).”
[9] As the Application was lodged outside of the 21 day timeframe prescribed by s.366(a), I must satisfy myself that a ‘further period’ should be allowed. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides:
“(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.”
[10] It is clear from the structure of s.366(2) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.
[11] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) of the Act, there are exceptional circumstances.
(a) Reason for the delay
[12] When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd 1:
“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”
[13] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd 2:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” (Emphasis added)
[14] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation.
[15] The period after the time for lodging the application had expired is in this matter only Saturday 28 March 2020. It is common ground between the parties that public libraries were closed on that day, and had by that time been closed for a number of days. Further, the Applicant, having relied upon filling out a hard copy application until 26 March 2020, did not thereafter have access to a library computer.
[16] While the Respondent stated that the Applicant had access to an iPad “until 26 March 2020”, that access seems to have been removed at or about the time that the Applicant became aware that he could not file a hard copy application on 26 March 2020, and so was not available on 27 or 28 March 2020.
[17] I consider the Applicant has advanced an acceptable explanation for the period of the delay being 28 March 2020, particularly when that explanation is placed in the key period of the upheavals associated with the COVID-19 pandemic. Accordingly, this factor weighs in the Applicant’s favour.
(b) Action taken by the person to dispute the dismissal
[18] Neither party made any material submissions on this issue. Consequently, no weight can be given to this consideration.
(c) Prejudice to the employer
[19] Neither party made any material submissions on this issue. The absence of prejudice does not establish a basis for extension of time. In the circumstances of this matter I consider this a neutral consideration.
(d) Merits of application
[20] This is a General Protections claim. In order to maintain such a claim, the Applicant must show that adverse action took place and that this action took place because of a prohibited reason.
[21] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd 3:
“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues.”
[22] As these matters are contested, I am unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration.
(e) Fairness between the person and other persons in a similar position
[23] Neither party made any material submissions on this issue. Consequently, no weight can be given to this consideration.
Conclusion
[24] As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any significant weight, was acceptable reason for delay which fell in the Applicant’s favour. I consider that as the balance weighs in the Applicant’s favour, exceptional circumstances exist.
[25] Having been persuaded that, in the overall balance, exceptional circumstances exist, I extend the period of time for the filing of the Applicant’s Form F8 Application to 28 March 2020.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR720612>
1 [2014] FWC 479 at [30].
2 [2018] FWCFB 901 noted at [39].
3 Unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000. Print T2421 stated at [14].
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