Fair Work Act 2009

s.365 - General protections

CSA Services (Jones Family Trust) T/A CSA Services

Application to deal with contraventions involving dismissal - application filed outside timeframe - exceptional circumstances existed - extension granted

[1] This application concerns an application made in accordance with section 365 of the Fair Work Act 2009 (the Act) by Mr Lennon Bosschieter who alleges his employment was terminated by CSA Services (Jones Family Trust) T/A CSA Services (CSA Services) in contravention of the general protections provisions of the Act. CSA Services denies the allegations, and contends that Mr Bosschieter was deemed unsuitable for the role due to negative feedback from the tradesmen and operations manager regarding his ability to follow instructions and lack of interest in his work.

[2] Mr Bosschieter stated in his application that he commenced employment with CSA Services on 13 November 2017, until his dismissal on 30 January 2018. Mr Bosschieter's general protections application was lodged on 21 February 2018, and was therefore made one day outside the 21 day period prescribed by the Act.

[3] The application cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission). CSA Services did not consent to the application proceeding to a conference and on that basis the matter was listed for a hearing of the extension of time argument on 4 April 2018.

[4] The Act provides that a person who has been dismissed and applies to the Commission for it to deal with a general protections application pursuant to s.365 of the Act, must make the application within 21 days after the dismissal took effect. However, the Commission may allow a further period for the application to be made if the delay in lodgement was due to exceptional circumstances.

[5] Section 366 of the Act provides:

(a) within 21 days after the dismissal took effect; or

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

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

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

[6] On 21 February 2018 the Commission received a "Form F8 - Application" from Mr Bosschieter dated 20 February 2018. Part 1.4 of the Application contains a question, "Are you making this application within 21 calendar days of your dismissal taking effect?" Mr Bosschieter marked "Yes" in response to this question.

[7] On 13 March 2018 the parties were invited to make submissions in relation to the extension of time issue. The matter was listed for hearing on 4 April 2018 to determine whether an extension of time should be granted. At the hearing, Mr Bosschieter was represented by his mother, Mrs Narelle Bosschieter. The Employer was represented by Managing Director, Paul Jones.

[8] Mr Bosschieter submitted exceptional circumstances existed that were sufficient to render it just and equitable to grant relief by extending the time under section 366 (2) of the Act exist.

[9] Mr Bosschieter submitted that an initial application to the Commission was lodged on 20th February 2018 in a format that was not readable by the Commission's system. Mr Bosschieter submitted the application was resent in another format on 21 February 2018.

[10] It appeared the original email sent by Mr Bosschieter with the application form was 1:15am 21 February 2018. During the course of the Hearing Mrs Narelle Bosschieter accepted that the application was first lodged on 21 February 2018.

[11] Mrs Bosschieter explained that she did not have a computer, so first attempted to take photos of the application using her phone.

[12] Mrs Bosschieter said she had made at least half a dozen unsuccessful attempts from midday on 20 February to submit the application using her phone. Mrs Bosschieter said she was not technically proficient and therefore experienced difficulty.

[13] Mrs Bosschieter said that after receiving advice from the Commission that the format was not compatible, she needed to wait until the following day to borrow a friend's computer when they got home from work.

[14] Mrs Bosschieter gave evidence that her son Mr Lennon Bosschieter is 16 years old and has Asperger syndrome.

[15] The Employer did not give any evidence on this point.

[16] In determining whether the Mrs Bosschieter's reasons for the delay in filing would weigh in favour of an extension being granted, I must firstly consider the reason given for the initial application being filed some 1 hour out of time. I must then also consider the reason why the application was not filed in a compatible format until the evening of 21 February.

[17] I accept Mrs Bosscheiter had been making genuine attempts to lodge the application by the deadline of 11:59pm 20 February 2018. Further I accept Mrs Bosschieter's evidence that she was not proficient with technology and experienced great difficulty uploading the application without a computer.

[18] In relation to the fact the application was not filed in the correct format until the evening of 21 February, I refer to the decision in Marel Food Systems Pty Ltd T/A Marel v Michael Hall[1] where the Full Bench upheld that an exceptional circumstance arose where the applicant had made a bona fide attempt to file his application within time, but had been prevented from doing so based on his electronic application not being received through the Fair Work Commission (FWC) portal, and where the applicant had a reasonable belief it had been accepted.

[19] I am inclined to adopt that finding in this case. Mrs Bosscheiter made a genuine attempt to upload the application in an eligible format, but experienced difficulty as she did not have access to a computer. I accept that Mrs Bosscheiter had a reasonable believe it had been accepted. Upon being made aware the application was not in an eligible format, I find that Mrs Bosscheiter was proactive in her attempt to resubmit, and had to wait for her friend to return from work to borrow their computer.

Action taken to dispute the Dismissal - s 366(2)(b)

[20] On 14 February 2018 Mr Bosschieter submitted he sent a text message to Don Mielekamp (Operations Manager) requesting copies of the signed contract and apprenticeship information. Mr Bosschieter submitted he did not receive a response.

[21] On 15 February Mr Bosschieter submitted his mother sent Mr Mielekamp an email introducing herself and requesting copies of the signed contract and apprenticeship documents. Mr Bosschieter submitted these documents were never received.

[22] The Employer did not give any evidence on this point.

[23] I am satisfied Mr Bosschieter took steps to dispute the dismissal and this weighs in favour of an extension being granted.

[24] Mr Bosschieter submitted there would be no prejudice to the employer if an extension of time were granted. The Employer did not dispute this.

[25] I am satisfied a delay of one day would not cause prejudice to the employer. This supports granting an extension.

[26] Mr Bosschieter submitted he was terminated on the basis that he wasn't suitable for the position. He submitted that days of work were also mentioned for which he had doctors certificates. Mr Bosschieter submitted a comment was made that he 'sits down on the job' which Mr Bosschieter refutes.

[27] Mr Bosschieter submitted he was employed as a first year electrical apprentice. Mr Bosschieter submitted that although his apprenticeship documents were never completed, he was paid as an electrical first year apprentice. Mr Bosschieter submitted he performed no work with a qualified electrician, but was instead a labourer for solar panels.

[28] Mr Bosschieter submitted he is 169cm tall and weighs 47kg.

[29] The Employer submitted Mr Bosschieter was terminated within the minimum employment period because he did not have the right attitude for the role. The Employer submitted the minimum employment period is there to allow employers to assess new employees for suitability for a role which is hard to assess completely prior to starting employment.

[30] The Employer submitted other staff working on the same site had advised that Mr Bosschieter was taking frequent and long toilet breaks and was regularly found to be smoking and on his phone instead of returning to work. The Employer submitted Mr Bosschieter regularly tried to avoid work that he was directed to do by the site supervisor and chose to not complete simple tasks in full.

[31] The Employer refuted Mr Bosschieter's claim that he was dismissed for taking sick leave days. The Employer submitted that sick leave days were only discussed in the termination meeting because Mr Bosschieter had not contacted the Employer to inform he would not be attending work on those days.

[32] The Employer also refuted Mr Bosschieter was discriminated against due to his small stature. The Employer submitted Mr Bosschieter's had no bearing on his performance. The Employer submitted Mr Bosschieter was informed during his job interview about the requirements to carry solar panels and the Employer would not have hired him if it felt his stature was an issue. The Employer submitted Mr Bosschieter was capable of carrying out the work but tried to avoid the work.

[33] The competing contentions give rise to factual disputes that I should not give detailed consideration as they go to the substantive case. I am satisfied that it is appropriate to regard the consideration under s 266(2)(d) as a neutral matter.

Fairness as between the Person and other persons in a like position - s 366(2)(e)

[34] Mr Bosschieter submitted he was unwell with ear infection on Monday 29 January, for which he had a medical certificate. Mr Bosschieter submitted he was told six other staff were absent in the same day. He submitted none of these other employees were terminated for having the day off.

[35] Mr Jones denied others received different treatment and maintained Mr Bosscheiter was not terminated for having a sick day.

[36] The competing contentions give rise to factual disputes that I should not give detailed consideration as they go to the substantive case. I am satisfied that it is appropriate to regard the consideration under s 266(2)(d) as a neutral matter.

[37] The meaning of 'exceptional circumstances' in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd[2] (Nulty) as follows:

"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."

[38] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.[3]

[39] I am inclined to the view that in this case, no one factor in itself is exceptional, however in combination the circumstances can be regarded as exceptional. Mr Bosschieter is 16 years of age and has Asperger's syndrome, meaning his mother acted on his behalf when submitting the application. I accept Mrs Narelle Bosscheiter has limited technological capability and no access to a computer. Mr Bosschieter had limited control over whether his mother was able to submit the application on time. I find in combination these circumstances lead to exceptional circumstances and as such I exercise power under s.366 to grant an extension. The matter will now be referred for a compulsory conference.

Mrs N. Bosschieter appearing on behalf of the Applicant

[1] [2017] FWCBF 6061 at para 15.

[2] [2011] FWAFB 975 at [13].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901at [17].

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