William Tilley v RNTT Pty Ltd T/A Jobs Statewide

[2015] FWC 8402

[2015] FWC 8402

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

William Tilley
v
RNTT Pty Ltd T/A Jobs Statewide
(C2015/5327)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 4 DECEMBER 2015

Application to deal with contraventions involving dismissal.

[1] On 9 September 2015 Mr William Tilley (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the applicant had been dismissed by RNTT Pty Ltd T/A Jobs Statewide (the Respondent).

[2] The Applicant commenced employment with the Respondent on 15 June 2015. He was a recruitment consultant for the Respondent’s job network in Adelaide. He says that he was dismissed on 11 August 2015 and the dismissal took effect on that day.

Alleged Contravention

[3] The Applicant submits that he was dismissed verbally without any satisfactory explanation. Prior to the dismissal, the Applicant had taken some time off which related to the illness and passing away of his grandfather. A breach of s.340 is alleged. The Applicant says that he was dismissed because he sought to exercise his workplace right to take bereavement leave and/or personal leave.

Respondent’s Submissions

[4] The Respondent denies that there has been a breach of the General Protections provisions of the Act. It submits that the applicant was dismissed due to unsatisfactory performance and attitude during his probation period.

Relevant Legislation

[5] Section 366 of the Act provides:

“366 Time for application

366(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).

366(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.”

Approach of the Commission

[6] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[13] 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.”

[7] On 2 October 2015 the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was set down for hearing by telephone on 18 November 2015.

[8] The Applicant was self-represented. Mr B. Duggan, solicitor, represented the Respondent. He was granted permission to appear pursuant to s.596.

Matters to be taken into account pursuant to s.366(2)

[9] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[10] The Applicant’s explanation for lodging eight days out of time was, in essence, that he was pre-occupied in looking for another job. This does not establish exceptional circumstances.

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

[11] There is no evidence of the Applicant seeking to pursue this matter with the Respondent.

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

[12] Given the overall facts, the Respondent would be prejudiced by the time and costs involved in further litigation.

(d) The merits of the application

[13] The evidence filed in this matter consists of the F8 and F8A and the submissions at the hearing. The Respondent had a range of issues with respect to the performance and attendance of the Applicant during this relatively brief probation period. There appears to be little to connect the right to bereavement and personal leave to the dismissal. In any event, the appropriate procedures for leave applications appear not to have been followed by the Applicant.

[14] I do not consider that the merits of the application give weight to the existence of exceptional circumstances.

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

[15] This factor was not addressed and has not been taken into account.

Conclusion and Order

[16] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by William Tilley under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

W. Tilley, Applicant.

B. Duggan with J. Banton for the Respondent.

Hearing details:

2015

Telephone Hearing:

November 18.

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