Tristan Hart v Illawarra Coatings Pty Ltd

[2012] FWA 7428

[2012] FWA 7428

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Tristan Hart
v
Illawarra Coatings Pty Ltd
(C2012/4655)

DEPUTY PRESIDENT BOOTH SYDNEY, 28 AUGUST 2012

General protections - extension of time.

[1] In this matter the applicant, Mr Tristan Hart, asks the Tribunal to exercise its discretion under s.366 of the Fair Work Act2009 (the Act) to grant an extension of time in relation to the lodgement of an application pursuant to s.365 of the Act concerning his dismissal from employment.

[2] Although it had been signed by Mr Hart on 1 July 2012 his application was made on 19 July 2012, 70 days after his dismissal and 10 days after the expiry of the time limitation (s.366 of the Act). The matter was heard on 13 August 2012 by telephone. Mr Hart represented himself and the respondent, Illawarra Coatings Pty Ltd (Illawarra Coatings) was represented by Mr Mark McDonald, solicitor, with Mr Steve Owen, Managing Director of Illawarra Coatings.

Background

[3] Mr Hart was employed by Illawarra Coatings on 1 February 2008 as a paint mixer. On 31 March 2012 he sustained an injury while playing football and as a result he was absent from work for a period of time during which he was seen by the doctor of his choice and a doctor to whom he was referred by Illawarra Coatings. He claims that he was fit to return to work on “suitable duties”, however, the respondent claims that no “suitable duties” were available. Mr Hart was dismissed on 10 May 2012.

The relevant statutory framework

[4] An application for Fair Work Australia (FWA) to deal with a dispute under Part 3-1 - General Protections of the Act must, pursuant to s.366, be made within 60 days after the dismissal took effect, or within such further period as FWA allows.

[5] Section 366 reads as follows:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA 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.”

[6] It is important to appreciate the purpose of limitation periods such as that contained in the ACT. In Brisbane South Regional Health Authority v Taylor McHugh J makes it clear that:

“A limitation provision is the general rule; an extension provision is the exception to it.”

He explains the reasons for this policy thus:

“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.” 1

[7] The term ‘exceptional circumstances’ has been helpfully summed up by a recent Full Bench of FWA. In Nulty v Blue Star the Full Bench said:

“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.” 2

and

“A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.” 3

[8] In determining whether there are exceptional circumstances I must take into account all the circumstances including the matters listed in s.366 (2)(a)-(e) of the Act, apply them to the case presented by the applicant and weigh them up in coming to a conclusion.

Consideration

[9] I will deal with the circumstances including each of those matters in turn.

(a) the reason for the delay

[10] Mr Hart advanced no reason for his delay in lodging his application other than to say:

“The timing was due to getting I would say all of the information. I had to go back and forth from specialists to doctors back and forth and I was given a note to return to work on light duties that was not granted by Steve Owen and he wanted me to resume on full duties and that is - and then after that I’ve used up all my sick leave and annual leave and then I’ve been terminated after that.” 4

And when asked again by me to explain the discrepancy in timing of the dating of the application and its receipt he said:

“I think I just had to get all the information together to actually lodge the form and thoroughly go through it.” 5

[11] There being no compelling reason/s advanced for his delay in lodging the application I find that this counts against the exercise of my discretion in his favour.

(b) any action taken by the person to dispute the dismissal

[12] There was no submission or evidence before me of any attempt by Mr Hart to dispute his dismissal after he received his letter of termination from Illawarra Coatings on 10 May 2012. There was an indication from conflicting submissions of a communication breakdown between Mr Hart and Mr Owen on 10 May when Mr Hart visited the establishment of Illawarra Coatings. Mr Hart’s submission was that he arrived at the establishment to find his belongings packed up waiting for him and he took them and left, under the impression that he had been dismissed on the telephone the day before. Mr Owen’s submission was that he was expecting Mr Hart to meet with him to have discussion “about what we were going to be doing about the situation” 6and was surprised when Mr Hart left the premises without coming to his office. He interpreted this as an abandonment of the employment contract.7

[13] Mr Hart’s dispute of his dismissal takes the form of this application.

[14] There is no contribution one way or the other to the exercise of my discretion in his favour from these circumstances.

(c) prejudice to the employer (including prejudice caused by the delay)

[15] Mr Owen submits that he has redefined the work roles in response to Mr Hart’s absence from work. He says:

“We have gone through an exercise to I guess redefine the work roles which was necessary and that was occurring during the time that Tristan was off. It put a reasonable strain on the organisation being people down. We would have to go back and change all of those practices again.” 8

[16] I find that the employer would be prejudiced by an extension of time and this factor weighs against a finding in favour of Mr Hart.

(d) the merits of the application

[17] The proceedings before me did not address the merits of Mr Hart’s case in any detail except for a general outline of the situation and the different interpretation of events held by Mr Hart and Mr Owen. I have also read his application and the Illawarra Coatings response to it contained in the Form F8A. There are conflicting submissions that would require evidence to be tested - in particular the contention that there were no “suitable duties” for Mr Hart to undertake during his recovery period.

[18] On the material before me the merit of Mr Hart’s application is a neutral factor in the exercise of my discretion.

e) fairness as between the person and other persons in a like position

[19] A comparison between Mr Hart and other persons is not relevant in this matter. It has not been submitted by either party that there are other persons in a like position to Mr Hart.

[20] There is no contribution one way or the other to the exercise of my discretion in his favour from these circumstances.

Other circumstances

[21] There are no other circumstances before me that are appropriate to be taken into account in my decision.

Conclusion

[22] I have weighed Mr Hart’s circumstances in relation to each of the matters contained in s.366(2)(a)–(e) carefully and on balance I am not satisfied that there are exceptional circumstances justifying the exercise of discretion to grant him an extension of time. The application is dismissed. An order will issue reflecting this decision.

DEPUTY PRESIDENT

Appearances:

T Hart, the Applicant

M McDonald, Maguire & McInerney Lawyers, with S Owen, Illawarra Coatings Pty Ltd

Hearing details:

2012.
Telephone Hearing (Sydney/Wollongong):
13 August.

 1   Brisbane South Regional Health Authority v Taylor (1996) CLR 541

 2   [2011] FWAFB 975 at [13]

 3   Ibid at [15]

 4   Transcript PN16

 5   Ibid PN18

 6   Ibid PN52

 7   Ibid PN42 and 49

 8   Ibid PN67

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