Travis Maloney v J G King Homes

[2021] FWC 3265

[2021] FWC 3265

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Travis Maloney
v
J G King Homes
(C2021/2088)

DEPUTY PRESIDENT YOUNG MELBOURNE, 7 JUNE 2021

Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.

Introduction

[1] This decision concerns an application by Mr Travis Maloney under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal (GP Application). Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

[2] It is uncontested that Mr Maloney’s employment with the Respondent ended on 22 February 2021. The GP Application was lodged on 13 April 2021. The period of 21 days ended at midnight on 15 March 2021 and the GP Application was therefore lodged 29 days out of time. Mr Maloney seeks that the Commission allows a further period of time for the GP Application to be made. The Respondent company opposes the grant of an extension of time.

[3] On 2 June 2021 I conducted the proceeding by way of determinative conference by telephone. Mr Maloney appeared on his own behalf. Ms Joanna Brennan, Human Resources Manager of the Respondent, appeared on behalf of the Respondent.

Identity of the employer

[4] Mr Maloney filed his application naming J G King Homes as the employer. The submissions filed by the Respondent indicate that the correct name of the employer is J G King Homes Pty Ltd T/A J G King Homes. It was agreed by both parties at the determinative conference that the correct name of the employer is J G King Homes Pty Ltd T/A J G King Homes. Pursuant to section 586 of the Act the GP Application is amended to provide that the name of the Respondent is J G King Homes Pty Ltd T/A J G King Homes.

Background

[5] The Respondent is a homebuilder. Mr Maloney was employed by the Respondent in the role of Sales Estimator from 8 February 2021 until 22 February 2021.

[6] On 15 March 2021 Mr Maloney lodged an application for an unfair dismissal remedy pursuant to section 394 of the Act (UD Application). On 1 April 2021 Mr Maloney discontinued the UD Application. As already set out, Mr Maloney lodged the GP Application on 13 April 2021.

Consideration

[7] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant. 1

[8] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd, 2 where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.3

[9] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.

Reason for delay

[10] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable 4 or a reasonable explanation.5 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd6 the Full Bench noted that the absence of an explanation for any part of the delay, will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all the circumstances must be considered.7 The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.8

[11] Mr Maloney says that the UD Application was lodged in time but “there was a lapse with communication with fairwork and myself to change the application.” 9 He says further that he submitted the “F80” in time “not knowing that I needed to submit the general protections application.”10I understand the reference to an F80 to be in error and that Mr Maloney is referring to the F2 by which he commenced the UD Application. At the determinative conference Mr Maloney also said that the delay in lodgement was due to his “mind set at the time”, because he lodged “the wrong paperwork” and that he could have lodge the GP Application sooner but he did not have any means of communicating his application, having to attend Officeworks to do so.

[12] Firstly, as to Mr Maloney’s assertion regarding a “lapse in communication” in relation to the “change in his application” a search of the Commission’s file confirms that Mr Maloney initially lodged the UD Application on 15 March 2021. The UD Application was incomplete, missing pages 2, 3 and 4 of the Form F2. Following correspondence from the Commission the complete UD Application was ultimately lodged on 17 March 2021. On 18 March 2021 the Commission sent correspondence to Mr Maloney advising him that he may not be eligible to make an unfair dismissal application as it appeared he had not completed the minimum employment period, as required under section 382 of the Act and as defined in section 383 of the Act (Minimum Employment Period). The Commission requested that Mr Maloney provide information that he had met the Minimum Employment Period by 1 April 2021. On 1 April 2021 the Commission contacted Mr Maloney about his eligibility to lodge the UD Application and left a voicemail. Mr Maloney telephoned the Commission at 11:10 am on 1 April 2021 and verbally discontinued the UD Application. That discontinuance was confirmed in writing by the Commission on 1 April 2021. Also on 1 April 2021 at 11:21 am the Commission provided a Form F8 general protections application to Mr Maloney by email. Mr Maloney lodged the GP Application 12 days later and 29 days after the expiry of the 21 day lodgement period.

[13] In light of the above, I am unable to see how there was any “lapse with communication” with regard to Mr Maloney’s “change in his application” which provides an acceptable or reasonable explanation for the delay in lodgement. Firstly, Mr Maloney was advised by the Commission on 18 March 2021 that it appeared he was not a person protected from unfair dismissal and may therefore be ineligible to make the UD Application. Mr Maloney did not respond to that correspondence until the Commission followed up on 1 April 2021. Secondly, even if it is accepted that Mr Maloney’s incomplete UD Application could be taken to be lodged in time and it is also accepted that that provides an explanation for the delay in lodgement (which, for completeness, I do not consider to be the case), it only does so until 1 April 2021. On 1 April 2021 Mr Maloney discontinued the UD Application and was provided with the Form F8. However, despite Mr Maloney being provided with the Form F8 he did not lodge the GP Application expeditiously but delayed a further 12 days, until 13 April 202. There is no explanation for Mr Maloney’s failure to lodge the GP Application for the period 1 April 2021 until 13 April 2021. Accordingly, this does not provide a reasonable or acceptable explanation for the delay in lodgement.

[14] Secondly, as to Mr Maloney “not knowing” he could lodge a general protections application, it is well established that ignorance of one’s rights is not an acceptable explanation for late lodgement. 11 Further, the Commission advised Mr Maloney of his ability to make a general protections application, and provided him with the form to do so, on 1 April 2021. As such, it cannot be said that from 1 April 2021 Mr Maloney did not know he could make the GP Application and yet he failed to do so for a further 12 days. This is does not provide a reasonable or acceptable explanation for the delay in lodgement.

[15] Thirdly, as to Mr Maloney’s submission that his “mind set” provides an explanation for the delay, there is no probative evidence before the Commission that Mr Maloney had any mental health condition or diagnosis or was in any way incapacitated such that it could be said that he was precluded from lodging the application in time. Further, Mr Maloney had capacity to lodge the UD Application on 15 March 2021. In those circumstances it is difficult to see how he did not also have capacity to lodge the GP Application. Accordingly, Mr Maloney’s “mind set” does not provide a reasonable or acceptable explanation for the delay.

[16] Fourthly, I reject the submission that Mr Maloney “lodged the wrong paperwork.” I do not consider that this accurately reflects what occurred. Mr Maloney lodged the UD Application. There is no suggestion that this was not the application he intended to make and, indeed, such a conclusion is unable to be reconciled with Mr Maloney “not knowing” that he could make a general protections application. Upon being advised that it appeared he was not a person protected from unfair dismissal, as he had not met the Minimum Employment Period, Mr Maloney discontinued the UD Application and elected to dispute his dismissal by lodging the GP Application. Accordingly, Mr Maloney did not lodge the wrong paperwork. Rather, upon discovering that he was ineligible to make the UD Application he sought to dispute his dismissal by alternative means. This does not provide a reasonable or acceptable explanation for the delay in lodgement.

[17] Finally, I reject that the delay in lodgement is adequately explained by Mr Maloney’s asserted absence of a means to communicate with the Commission. Firstly, whilst Mr Maloney may not have the facilities at home to scan and send documents, Mr Maloney lodged the UD Application by email on 15 March 2021. He therefore had access to a means of communicating documentation to the Commission and, indeed, did so. That it may have caused Mr Maloney some additional effort or caused some inconvenience does not provide a reasonable or acceptable explanation for the delay. Secondly, the Fair Work Commission Rues 2013 provide that documents may be lodged with the Commission by physically delivering the document to an office of the Commission, sending the document by post, emailing the document, using the Commission’s electronic lodgement facilities or faxing the document. 12 Accordingly, there are multiple alternate means by which Mr Maloney could have lodged the GP Application. Thirdly, Mr Maloney lodged the GP Application on 13 April 2021. A review of the Commission’s file demonstrates that Mr Maloney emailed the GP Application to his personal email address from Glen Waverley Officeworks at 4.07 pm on 9 April 2021 but did not forward that email to the Commission until 9.34 am on 13 April 2021. Accordingly, the delay was not occasioned by Mr Maloney’s lack of access to a means of communicating with the Commission.

[18] Accordingly, Mr Maloney has failed to provide a reasonable or acceptable explanation for the delay in lodgement. This weighs against the granting of an extension of time.

Action taken by the person to dispute the dismissal

[19] It is not contested that Mr Maloney lodged the UD Application. The Respondent concedes, correctly in my view, that by doing so Mr Maloney disputed his dismissal. 13 This weighs in favour of the granting of an extension of time.

Prejudice to the employer

[20] The Respondent does not contend that it would suffer any prejudice 14 and I cannot identify any particular prejudice that would accrue to it were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.

Merits of the application

[21] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[22] Mr Maloney relies on section 340, 343, 346, 348 and 351 of the Act (Relevant Sections). 15 Mr Maloney asserts that he was dismissed due to “politics in the office.”16 He says he was bullied for failing to wear a face mask at work and dismissed for this reason. Mr Maloney says that he has severe asthma and breathing problems and that he is lawfully permitted not to wear a face mask. Mr Maloney says that the Respondent required him to break COVID-19 regulations during his employment by attending the office to collect equipment during the Victorian Government’s snap lockdown between 12 February 2021 and 17 February 2021.17 He also makes reference to not receiving pay for work done and the pay being incorrect when it was received.18

[23] There is no dispute that the company dismissed Mr Maloney. Accordingly, it is uncontested that adverse action, in the form of dismissal, was taken against Mr Maloney. The Respondent says, however, that it terminated Mr Maloney’s employment because he was “very hard to manage and work with because of communication issues, particularly whilst working from home.” 19 It says he was a probationary employee and the employer determined that “matters were not working out.”20

[24] At the determinative conference Mr Maloney was unable to adequately address me as to how the Relevant Sections were engaged. He could not address me as to the workplace right sought be relied upon in relation to his allegation of breach of sections 340 and 343 nor could he address me as to any relevant industrial activity in which he had engaged, or not engaged, to support his allegation of breach of sections 346 and 348. He relied upon his severe asthma (of which there is no probative evidence before the Commission) in support of his allegation of breach of section 351. As such, for the most part, it appears that Mr Maloney’s claims of breach of Part 3-1 are, at best, weak. However, Mr Maloney is unrepresented and it may be that with legal assistance Mr Maloney could better articulate his claims. Accordingly, notwithstanding my view as to the merits of Mr Maloney’s claims as currently articulated, I am prepared to consider the merits a neutral consideration.

Fairness as between the person and another person in a like position

[25] Applications to extend time generally turn on their own facts. Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.²¹ Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.²² Mr Maloney’s submissions on this point, 23 including his oral submissions at the determinative conference, were not relevant and of no assistance. The parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between Mr Maloney and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[26] The time limit that applies to the exercise of a person’s right to bring an application under section 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.

[27] Having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist in the particular circumstances of Mr Maloney’s application.

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

DEPUTY PRESIDENT

Appearances:

T Maloney on his own behalf
J Brennan for the Respondent

Hearing details:

2021.
Melbourne (by telephone).
2 June 2021.

Final written submissions:

Applicant: 14 April 2021
Respondent: 28 April 2021

Printed by authority of the Commonwealth Government Printer

<PR730514>

 1   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]

 2   [2011] FWAFB 975

 3   At [13]

 4   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

 5   Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]

 6   [2018] FWCFB 901

 7   Ibid at [39]

 8   See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]

 9   Form F8 at q.1.4

 10   Applicant’s Outline of Argument at q.1d

 11   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975

 12   Fair Work Commission Rues 2013 r 13(2)

 13   Respondent’s Outline of Submission at [19]

 14   Ibid at [20]

 15   From F8 – General protections application involving dismissal at q.3.2

 16   Applicant’s Outline of Argument at q.1h

 17   Applicant’s Statement of Evidence at p.4

 18   Ibid at p.6

 19   Respondent’s Outline of Submission at [21]

 20   Ibid

21 Wilson v Woolworths [2010] WA 2480 at [24-29]

22 Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]

 23   Applicant’s Outline of Argument at q.1i