Veniamin Gheorghe Popa v MediHost Solutions Pty Ltd
[2022] FWC 900
| [2022] FWC 900 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Veniamin Gheorghe Popa
v
MediHost Solutions Pty Ltd
(C2022/1094)
| DEPUTY PRESIDENT CROSS | SYDNEY, 20 APRIL 2022 |
Application to deal with contraventions involving dismissal
On 11 February 2022, Mr Veniamin Gheorghe Popa (the Applicant) lodged an application (the Application) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant stated he had been employed by MediHost Solutions Pty Ltd (the Respondent), and that he commenced his employment with the Respondent on 7 December 2020. The Applicant was notified of his dismissal on 6 December 2021.
In response to the Application, the Respondent raised the jurisdictional objection that the Application was filed out of time. Pursuant to s.366(1) of the Act. General Protections applications involving dismissal must be made within twenty-one (21) days after the dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. The Applicant having been dismissed on 6 December 2021, the Application was due on 29 December 2021, taking into account the public holidays on 27 and 28 December 2021.
On 8 March 2022, directions were issued to program the manner in which the
Application was to proceed (the Directions). The Directions required the filing of materials for the determination of whether to grant the Applicant an extension of time to lodge the Application.
The parties complied with the Directions. In particular:
(a) On 15 March 2022, the Applicant filed a Statement of the Applicant, a Form F51 Application for an order requiring a person to attend the Commission (the F51 Application), and a Form F52 Application for an order for production of documents, records or information to the Commission (the F52 Application);
(b) On 22 March 2022, the Respondent filed an Outline of Submissions including a response to the Form F51 Application and Form F52 Application;
(c) The Applicant declined to file any materials in reply.
On 4 April 2022, I wrote to the parties stating the orders sought in the Applicant’s Form F51 and Form F52 Applications would not be made, as the Form F51 and Form F52 Applications did not relate to the jurisdictional issue for determination. Rather, they related to the merits of the Application.
On 8 April 2022, the matter was heard. No deponents of statements in the matter were required for cross-examination, the Applicant supplemented his written submissions with further oral submissions and the Respondent sought to rely on their written submissions.
At the hearing, I issued an ex tempore decision. The following is an edited transcript of that decision:
“The Applicant, Mr Veniamin Popa, hereafter referred to as 'Applicant', commenced employment with MediHost Solutions Pty Ltd on or about 7 December 2020.
The reason given by the Respondent for the decision to terminate the Applicant's employment was failure to deliver on reasonably assigned tasks. The Applicant has applied for a General Protections remedy under s. 365 of the Fair Work Act. That Application was lodged on 11 February 2022 which, importantly, was a Friday.
Applications for General Protections remedy must be made within 21 days after the dismissal took effect. The Applicant's employment was terminated by the Respondent with effect from 6 December 2021. Based on a termination date taking effect on that date, the Application should have been filed by the 29 December 2021, taking into account the effect of the Boxing Day and Christmas Day holidays falling on a weekend and substitute days applying in New South Wales.
The Application was therefore lodged outside the time prescribed and was made in effect 47 days late. The Act allows the Commission to consider extending the period within which an application for a General Protections remedy may be made, if it is satisfied that there are exceptional circumstances.
The matters I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are the reason for the delay, any actions taken to dispute the dismissal, prejudice to the Respondent, including prejudice caused by the delay, the merits of the Application and the fairness between the Applicant and other persons in a similar position.
Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances, though I note the Applicant only relied on the first circumstance, effectively relating to the reason for delay.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances, themselves do not to be unique or unprecedented, nor do they need to be very rare.
I will now consider these matters in the context of the Application.
The reason for the delay that was given by the Applicant was that he had previously commenced an Unfair Dismissal action that had proceeded before Commissioner Johns, and that he could not have a dual application because the Fair Work Act does not allow parallel applications, and if one was made it would be rejected.
…
Eventually, that Unfair Dismissal proceeding was rejected, I understand, on the basis that the Applicant had not served the minimum employment period, and such Decision dismissing that Unfair Dismissal application occurred on Monday, 7 February 2022.
I note that Deputy President Mansini had considered a similar circumstance of an Applicant initially commencing an Unfair Dismissal proceeding and subsequently pursuing a General Protections application in the matter of Dirkis v Staffing Office Solutions Pty Ltd.[1]
I note that in that decision, at paragraph 27, the Deputy President made certain observations about the existence and availability of certain actions to applicants, both under Unfair Dismissal and General Protections applications, and whether it was exceptional circumstances that a subsequent application for General Protections could have been made on dismissal of the Unfair Dismissal application.[2]
I accept and adopt what the Deputy President said. But I think one factor that is all the more telling in this matter is that it is essential for the Applicant to explain all of the delay that has occurred in his matter.
While his Unfair Dismissal application was dismissed on Monday 7 February 2022, the General Protections Application was not made until the Friday of that week. Even if I was to accept, as I am unwilling to do as I have noted, that previously commencing an Unfair Dismissal proceeding was somehow an exceptional circumstance that precluded the filing of a dual General Protections application, at least to cover the applicant, the fact that the delay after the dismissal of that Unfair Dismissal proceeding cannot be explained weighs against the Applicant in this matter.
In relation to the question of action taken to dispute the dismissal, other than merely lodging an application for an Unfair Dismissal, there was no particular agitation by the Applicant, and I would consider that this matter weighs neutrally in the assessment of exceptional circumstances in this matter.
As to prejudice to the employer, the Respondent has submitted that they would suffer significant prejudice if the Application were allowed to proceed. I don't accept that to be an acceptable assessment of the level of prejudice. Some prejudice will flow to the Respondent, having to again defend another application by the Applicant, although I would not consider it to be significant. I would consider this weighing only slightly in favour of the Respondent.
As to the merits of the Application, it is notoriously difficult for anyone to assess the merits of an application at such an early stage. In this matter I think it is at least fair to say that the Applicant does appear to have some merit in this case, and the Respondent has some merit in their defence. I would see that this factor would weigh neutrally in the matter.
As to the fairness as between the Applicant and other persons in a similar position, no submission was made by the Applicant, and no particular circumstances were advanced by the Respondent in this matter.
In conclusion, statutory time limits that are applicable to the exercise of a person's right to bring a General Protections remedy application are an expression of Parliament's intention that right should be exercised promptly so as to bring about certainty.
Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise excepting exceptional circumstances for the right to bring the action will be lost.
Weighing all of the matters that I must weigh in taking into account the matters in section 366(2) of the Act, I am not satisfied that there are exceptional circumstances in this case warranting a consideration of the exercise of my discretion to allow a further period. Of particular note in that assessment is the assessment of the reasons for delay, or the explanation of the delay, by the Applicant, and that that was rejected in whole in my decision, but particularly in relation to the period between 7 and 11 February 2022.
I therefore dismiss the Applicant's General Protections application.”
The application made by the Applicant pursuant to s.365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
V Popa, Applicant.
J John of Employsure Law Pty Ltd for the Respondent.
Hearing details:
2022.
Sydney (by video):
April 8.
[1] [2021] FWC 2163.
[2] Ibid, [27].
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