Troy Beattie v Smoke Alarm Solutions Pty Ltd

[2021] FWC 5629

[2021] FWC 5629

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Troy Beattie
v
Smoke Alarm Solutions Pty Ltd
(C2021/4215)

DEPUTY PRESIDENT MANSINI MELBOURNE, 16 SEPTEMBER 2021

General protections dismissal dispute - application filed out of time – circumstances not exceptional – application dismissed.

[1] This decision concerns an application by Mr Troy Beattie for the Commission to deal with a general protections dispute involving dismissal from his employment with Smoke Alarm Solutions Pty Ltd (Company), made under s.365 of the Fair Work Act 2009 (Cth) (Act).

[2] I have determined that Mr Beattie did not file within the statutory timeframe and not to allow a further period within which to lodge his application. These are the reasons for that decision.

Was the application made out of time?

[3] Section 366(1) of the Act requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

[4] It is not contentious that Mr Beattie was dismissed on and effective 27 January 2021. His general protections application was lodged on 22 July 2021. The period of 21 days ended at midnight on 17 February 2021. The application was therefore filed 155 days outside the 21 day period.

[5] Mr Beattie asks that the Commission grant a further period for the application to be made under s.366(2). The Company opposes this request.

Are there exceptional circumstances?

[6] The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may 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.2

[7] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take 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.

[8] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.

Reason for the delay – s.366(2)(a)

[9] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 17 February 2021. The delay is the period commencing immediately after that time until it was ultimately lodged on 22 July 2021, although circumstances arising prior to that delay may be relevant to the reason for the delay. 3

[10] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any 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 of the circumstances must be considered. 4

[11] In his original application, Mr Beattie explained the reason for his delay was because he was remanded in custody on and from 2 February 2021 until 9 July 2021. He said he could not do anything during this period.

[12] At the hearing before the Commission, Mr Beattie gave oral evidence that he had spoken with the office of industrial relations the day after his dismissal and started putting together this application, prior to 2 February 2021. He had asked his mother to complete the claim on his behalf – she attended the hearing and told the Commission that she refused to complete it essentially because she was unsure of what to do.

[13] Mr Beattie also gave oral evidence about a range of matters he said are relevant to the reason(s) for his delay which were not addressed in his written evidence, despite having been directed to do so. His oral evidence included that, during the time he was in custody, he had spoken to a counsellor but understood that he could not pursue the claim. He explained that he had access to a telephone and legal aid services during this time, but was unaware that he could lodge by telephone and had not wished to avail of the legal aid services (including because he believed they could not assist and preferred to engage his own private lawyer). Then, in the time following his release from custody, he had to wait until he could afford and purchase a new mobile phone. The various technical difficulties described included that his other devices had been confiscated, password changes were required and then the newly purchased device required greater storage capacity and therefore he had to purchase a second device. In response to my question about why the application form is dated 20 July 2021 but was not lodged until 22 July 2021, Mr Beattie said that he had difficulty uploading the file(s). He also pointed to the fact that he had filed within 21 days of his release from custody.

[14] There is no doubt that Mr Beattie’s circumstances, as he described them, presented difficulties in attending to the filing of his application. But it is difficult to accept his incarceration as a credible explanation for even that part of the delay in light of Mr Beattie’s own evidence about the options that were available to him to access telephone and legal aid - by which he could have attended to filing the application. That he had a preference not to engage with legal aid is a matter for Mr Beattie but not exceptional.

[15] Even if the Commission were to accept that Mr Beattie could not attend to filing until after his release on 9 July 2021, Mr Beattie’s claims about the impact of technical issues and inability to access devices after his release were not convincing, not supported by any documentary evidence and I reject them as credible. Further, Mr Beattie’s claimed ignorance of the ability to lodge an application by telephone does not sit well with his other evidence about having accessed various information via what he described as industrial relations, Fair Work Commission and Fair Work Ombudsman telephone information services, from which he could have obtained appropriate guidance. In any event, mere ignorance is not of itself a reasonable explanation. To the extent that Mr Beattie contended that he mistook the statutory timeframe for filing as being within 21 days from the date his release from custody, such explanation similarly lacks credibility in light of his own evidence about having accessed advice from appropriate publicly available sources and again mere ignorance is not of itself a reasonable explanation.

[16] I am not satisfied that Mr Beattie has established an acceptable or reasonable explanation for the delay. This weighs against an extension of time.

Any action was taken to dispute the dismissal – s.366(2)(b)

[17] In respect of s.366(2)(b), I am required to take into account any action taken by Mr Beattie to dispute the dismissal or to place the employer on notice of his intention to dispute the dismissal.

[18] At the hearing, Mr Beattie said he thought he may have contacted an employee of the Company by SMS in the period after his dismissal and before this application was filed. When pressed, Mr Beattie became more definitive but there is no record of such SMS or reference to having made such attempts in any of Mr Beattie’s materials despite the Commission’s directions to file evidence of any action taken to dispute the dismissal. This evidence was vague and non-specific and I do not accept it as credible.

[19] Mr Beattie also gave oral evidence of having made a safety complaint to the employer’s safety officer. Again, there was no record of detail of this in the materials and no explanation of how such complaint constituted action taken to dispute his dismissal.

[20] On the materials and evidence before the Commission, I am not persuaded that Mr Beattie took steps to dispute his dismissal in a manner contemplated by s.366(2)(b). In my view, this does not weigh against a finding of exceptional circumstances and is a neutral factor.

Prejudice to the employer – s.366(2)(c)

[21] Although the Company claimed it would suffer prejudice, I cannot identify any particular prejudice that would accrue to the Company if an extension of time were to be granted.

[22] The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this a neutral factor.

Merits of the application – s.366(2)(d)

[23] An application to extend time is essentially an interlocutory matter that does not allow for 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.

[24] On the materials before the Commission, it is evident that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position – s.366(2)(e)

[25] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[26] 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.

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

DEPUTY PRESIDENT

Appearances:

T Beattie on his own behalf.
M Heffernan for the Respondent.

Hearing details:

2021.
Melbourne (by Video).
8 September.

Printed by authority of the Commonwealth Government Printer

<PR733689>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287 at [12].

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].