Zdenek Terray v The Trustee for Hsi's Family Trust T/A Rapid Pak
[2016] FWC 611
•29 JANUARY 2016
| [2016] FWC 611 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Zdenek Terray
v
The Trustee for Hsi’s Family Trust T/A Rapid Pak
(C2015/7183)
DEPUTY PRESIDENT LAWRENCE | SYDNEY, 29 JANUARY 2016 |
Application to deal with contraventions involving dismissal.
[1] On 4 November 2015 Mr Zdenek Terray (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 The Trustee for Hsi’s Family Trust T/A Rapid Pak (the Respondent).
[2] The Applicant commenced employment with the Respondent on 12 August 2014. He was a forklift driver at the Respondent’s Clayton, Victoria warehouse. He says that he was dismissed on 13 October 2015 and the dismissal took effect on that day. In fact, the Respondent made him redundant paying him two weeks’ pay in lieu of notice and some four weeks’ redundancy pay.
Alleged Contravention
[3] The Applicant submits that he was in fact dismissed because he sought to exercise his workplace right to lodge a WorkCover claim form which he did on 12 August 2015. A breach of s.340 of the Act is alleged.
Respondent’s Submission
[4] The Respondent says that this was a genuine redundancy which was caused by a downturn in business and that it had complied with its consultation obligations.
[5] The Respondent denies that there has been a breach of the General Protections provisions of the Act.
Relevant Legislation
[6] 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
[7] 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.”
[8] On 24 November 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 listed for hearing on 18 January 2016.
[9] The application had been lodged one day out of time.
[10] The application had been lodged for the Applicant by Springvale Monash Legal Service. However, those lawyers ceased to act for the Applicant. The Respondent was represented by Mr Mark Diamond of Employsure Pty Ltd. Ultimately both parties agreed that the application for an extension of time could be decided “on the papers”.
Matters to be taken into account pursuant to s.366(2)
[11] 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
[12] The Applicant’s explanation for lodging one day out of time was that his then representatives had failed to lodge in time. No other explanation was provided.
[13] Notwithstanding the short period, without further substantiation, I am not satisfied that exceptional circumstances are established.
(b) Any action taken by the person to dispute the dismissal
[14] There is no evidence of the Applicant contesting the dismissal other than the lodging of the General Protections application. This does not support a finding of exceptional circumstances.
(c) Prejudice to the employer (including prejudice caused by the delay)
[15] The Respondent acknowledges that it is not prejudiced by a one day delay.
(d) The merits of the application
[16] The Respondent maintains, plausibly, that this was a genuine redundancy. It sets out the consultation process undertaken with all employees. It denies that there was any link between the Applicant’s injury and his termination.
[17] 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
[18] There was no evidence that the Applicant was treated differently to other employees, all of whom were part of the redundancy consultation process.
Conclusion and Order
[19] 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 Zdenek Terray under s.365 of the Act is dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<Price code A, PR576557>
0
3
0