Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - extension of time - application filed out of time

[1] On 14 March 2017, Mr Joseph Manon Athian (the Applicant) made an application to the Fair Work Commission (the Commission) to deal with a General Protections dispute wherein the Applicant alleged he had been dismissed in contravention of Part 3-1 General Protections of the Fair Work Act 2009 (the Act). This decision deals with the jurisdictional issue only, for an extension of time in relation to the filing of the application.

[2] The Applicant alleged that he had been dismissed from his casual position by Barry Clayton (the Employer/Respondent). Mr Clayton operates a trolley collection business at the Warner Shopping Centre.

[3] The Applicant stated on his application that he was dismissed on 14 February 2017 and the application was lodged 14 March 2017, 28 days after the termination date. The application is required, as per s.366(1)(a) of the Act, to be lodged within 21 days after the dismissal took effect. The Applicant's application was lodged 7 days out of time.

[4] The Respondent stated that the Applicant had not been offered any further shifts, due to the Centre Manager not allowing the Applicant on site due to customer complaints, against the Applicant. The Applicant made various allegations that he had not been offered further shifts due to being away due to a workplace injury and also that he received complaints as he was Sudanese.

[5] Directions were set for the provision of material in relation to the jurisdictional objection. A Hearing was held in the matter on 10 May 2017, whereby the Respondent appeared in person and the Applicant appeared by Video Link.

[6] The Applicant at the time of lodging the application was based in Queensland, and had later requested to appear in Sydney for the Hearing. The Applicant, after filing the application, noted he did not have an active email account and therefore all material was to be sent to him by registered post. An address located in Sydney was provided for this purpose. English was not the Applicant's first language; however the Applicant did not indicate any difficulty in responding to such materials. The Applicant had informed the Commission, on 14 March 2017 that he no longer required a Sudanese interpreter. Given the location of the parties, the Applicant appeared from Sydney via Video Link and was afforded the opportunity for assistance if required (as initially sought on the Applicant's application) from a Sudanese interpreter. The employer stated the Applicant's English during his employment was fluent.

[7] Not all of the evidence and submissions provided are referred to in this decision; however, all of such has been considered in making the determination. All of the material was made available to the Applicant and the interpreter appearing/at the Hearing in Sydney.

"365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute."

(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).

(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."

[8] The Applicant stated in his application, that he was advised by his Employer during a telephone conversation, that his employment was terminated. The Respondent submitted that the Applicant was not provided further shifts, given that the Applicant was on sick leave and had not presented a medical certificate clearing him to return.[1] The Applicant was employed as casual employee, therefore his shifts were filled by other casual employees during this period, he was unable to work.

[9] The criteria in s.366(2) are addressed as follows:

s.366(2)(a) - the reason for the delay

[10] The Applicant submitted that his employment was terminated on 14 February 2017. The application was received by the Brisbane Registry of the Fair Work Commission on 14 March 2017, the application was filed 7 days out of time.

[11] The Applicant submitted he was hit by a car at work, on 25 January 2017 and was taken to hospital. The Respondent submitted that the injury sustained by the Applicant, on the 25 January 2017 was a sprained wrist.

[12] The Applicant submitted at the Hearing (in relation to the delay of lodging his application) that around the date that his employment was terminated on 14 February 2017, the Applicant had called the Fair Work Commission Helpline, who had provided him with the number to call the Brisbane Registry. The Applicant submitted that he had spoken to a staff member in the Brisbane Registry, he could not recall the name of the person in the Registry, who had advised him, he was to wait 14 days before lodging his application.

[13] The Applicant submitted that he waited the 14 days, as advised by a Brisbane Registry staff member who could not be identified, and called the Brisbane Registry again on the 14th day. The Applicant could not recall the further staff member he had spoken to, or the day or time that the call had taken place. The Applicant submitted he had been advised that a lawyer would call him within 7 days. No further information was provided by the Applicant, in relation to the phone calls made to the Brisbane Registry.

[14] The advice attributed to the Brisbane Registry is contrary to information which is provided for the filing of such applications. The Brisbane Registry does not provide lawyers or legal advice. The only pro-bono legal service that the Brisbane Registry co-ordinates with Helpline callers, is the Workplace Advice Clinic. For clients to obtain an appointment with the separately operated clinic, they have to complete and return a form with their contact details. The Registry obtains a copy of this form and this is sent to the Community Legal Centre. However, this service did not commence until after 21 March 2017.

[15] The Applicant submitted that a lawyer had called him on a Thursday, approximately one week later. The Applicant submitted that the lawyer had advised him that he was to submit his application with the Commission on 14 March 2017. The Applicant could not name the lawyers.

[16] In the Hearing, the Applicant relied on an email (which he later confirmed that which is included below) by which he stated he was advised by a lawyer to wait until 14 March 2017, to submit his application. The Applicant explained that the email from his lawyer enclosed the application form and advised him to wait 14 days before lodging the application. The Applicant was requested to provide the email to the Commission after the Hearing. The email that was provided by the Applicant, was an email dated 14 March 2017, sent at 11.44am from the Brisbane Registry 'brisbane@fwc.gov.au' to the Applicant, and enclosed a letter and a form F80 Waiver of application fee form, as below. No F8 form, general protections application, was attached and there was no evidence of a third party recipient included in the email.

Application for the Fair Work Commission to deal with a General Protections Dispute

Fair Work Commission File Number: C2017/1329

The Fair Work Commission received a general protections dispute application from you on 14 March 2017.

As per our telephone conversation on 14 March 2017 this application was made without payment of the lodgment fee of $69.60. In circumstances where applicants are unable to provide the lodgment fee they are able to apply to have the fee waived. A form for this purpose has been attached.

If you wish to proceed with the above claim please forward the necessary documentation, with payment if required or a completed application for waiver as soon as possible, quoting reference number C2017/1329.

In the absence of any advice from you within 14 days from the date of this letter, this application may be dismissed.

[17] According to the Commission's computer management system of records, the Applicant's application was received by post and stamped in the Brisbane Registry at 9am on 14 March 2017. The Registry forwarded the above letter, by email, to the Applicant seeking payment of the filing fee. This letter (set out above) was provided by the Applicant after the Hearing on 10 May 2017. The Applicant had relied on this letter as a reason for the delay in filing, being the fault of his lawyer.

[18] As per the Registry records, at 2.08pm on the 14 March 2017, as per the Commission's computer management system of records, the lodgement fee was paid by the Applicant in cash (as recorded on the receipt), at the Brisbane Registry.

[19] In addition as reasons for delay, the Applicant submitted at the Hearing, that the Commission's website provided the various timeframes for lodging a general protections application. The Applicant submitted the website had provided 14 days, 21 days and 1 year. Below is an extract taken from the Fair Work Commission's website "www.fwc.gov.au", that provides the timeframe for lodging a general protections application. The 14 day and 1 year time frames, as submitted by the Applicant, could not be identified at all on the website.

"If you have been dismissed from your employment you may be able to make an application to the Fair Work Commission under either unfair dismissal or general protections dismissal laws. Applications under these laws must be received by the Fair Work Commission within 21 days of your dismissal taking effect."

s.366(2)(b) - any action taken by the person to dispute the dismissal

[20] The Respondent submitted that the Applicant had not taken any steps to dispute the dismissal. The Applicant stated that he had sought further shifts, but the Respondent had stated the rosters were prepared between 7 and 10 days, prior to being released, and given that the Respondent was unaware he was returning, (and he did not have a medical clearance) the Applicant had not been placed onto the roster.

s.366(2)(c) - prejudice to the employer (including prejudice caused by the delay)

[21] The Respondent submitted that the lateness of the application has not caused their business any disadvantage or unfairness. The Respondent had stated the Applicant was a casual employee, and other casual employees were placed on the roster.

s.366(2)(d) - the merits of the application

[22] The Applicant submitted he was dismissed on 14 February 2017, following the Respondent's suggestion that he should look for another job, given the customer complaints referred to by Centre Management. The Applicant submitted that the Respondent advised him that his uniforms should be returned, but that he would provide the Applicant with a reference.

[23] The Applicant provided text messages sent by the Respondent on 14 February 2017, which read:

"Sorry Joseph but have filled your shifts up with other workers and I have no shifts at this stage so proberly good idea to look for new job I have no problem with giving you a reference

Mate would like your shirts and you have a yellow raincoat an izac has acouple two I would apreshate them back at the moment otherwise I have to buy more so when you get chance you can bring them in to warner please boss"[2]

[24] The Applicant referred to a range of matters in his application that may have led to his dismissal. However, at the Hearing the Applicant noted that he hadn't received shifts after his period of absence, taken after the accident on 25 January 2017. The Applicant submitted that the Respondent had asked him on 29 January 2017 to provide a medical clearance from his doctor, in order to return to work. The Applicant stated that he had provided the medical clearance to the Respondent's brother in law, on 30 January 2017. The Respondent submitted that the Applicant was not provided further shifts, as the rosters were prepared in advance and they were unaware the Applicant was returning, therefore the shifts were filled by other casual employees.

[25] The Respondent stated that the Applicant would not be given shifts on the roster due to complaints made to Centre Management, and due to the Applicant's repeated failure to follow workplace health and safety rules.

[26] The Respondent noted that he had raised performance issues with the Applicant. The Respondent submitted the induction materials, which were completed by the Applicant, had advised that a maximum of ten trolleys were to be pushed at a time. The Respondent submitted that the Applicant had failed to meet these workplace health and safety standards on multiple occasions. The Respondent also stated that the Applicant exhibited an aggressive attitude towards customers and the Respondent, often calling people "racist" when they initiated complaints against him.

[27] In response to the Respondent's material, the Applicant submitted that he had not pushed more than 13 trolleys at one time. He stated the Respondent's son and brother in law were often pushing more than 16 trolleys at one time. The Applicant submitted that he had photographic proof.

[28] The Respondent stated he had received various customer complaints about the Applicant as referred to in the statements. The Respondent referred to a formal complaint made to the Centre Management, referring to an incident involving the Applicant on 20 March 2017. The Applicant submitted that the complaint was not true, as he had not been working that day. The Respondent later submitted an amended copy of this complaint which corrected the date of the incident 23 Jan 2017. The Applicant had maintained at the Hearing that he was not at work on this day.

[29] The evidence of Mr Clayton, owner of the Respondent business, was that the Applicant had engaged in interactions with customers whereby a husband had complained that his wife had been rudely spoken to by the Applicant and indicated that the Applicant should not push so many trolleys as he was going to hit someone. The complaint was that the Applicant had indicated to the Complainant's wife that she should lose some weight so she could get out of the way. The Respondent in his evidence stated that the Applicant worked very hard, but there was a number of complaints now and that he was required to comply with the Centre Manager's direction, who refused to have the Applicant on site, as a result of the complaints received.

[30] Further to the above submissions, the Respondent stated that as the Applicant had not lodged his application within time as per the timeframes provided in the legislation, the matter should not be allowed to progress.

[31] The Act requires the Commission to be satisfied that there are exceptional circumstances for the Commission to extend a period of time for a person to make a general protections application.

[32] In order to decide if there are exceptional circumstances such that an extension of time should be granted it is necessary to consider each of the matters in s.366(2)(a)-(e). Ignorance of the timeframe for lodgement is not considered to represent an exceptional circumstance.

(a) The reason for the delay

[33] There must be an acceptable reason for the delay.[3] Further, an employee needs to provide a credible reason for the whole of the period that the application was delayed.[4]

[34] While illness has been found to provide a valid reason for the delay,[5] here the Applicant did not provide any medical evidence to provide a valid reason for the delay. The Applicant did not provide that his wrist injury, the reason for the medical certificate, had caused him delay in lodging his application.

[35] In the Hearing the Applicant relied on an email, as provided above, which he submitted was sent to him from his lawyer. The Applicant explained that the email enclosed the application to be filed and advised that he is to wait 14 days before lodging his application. The email that was provided by Mr Athian was an email dated 14 March 2017, sent at 11.44am from the Brisbane Registry 'brisbane@fwc.gov.au' to the Applicant. It is apparent that this email was sent to the Applicant after he had lodged his application and not from his lawyer as he had claimed. Contrary to the Applicant's evidence on the reasons for the delay, the email does not enclose an application, specify that he is to submit his application in 14 days. or identify the lawyer, that the Applicant claims had provided him incorrect advice on the lodgement timeframe.

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

[36] It is considered that action taken by an employee to contest the dismissal, other than lodging an application, may favour granting an extension of time.[6]

[37] No evidence was submitted to support that the Applicant had endeavoured to file the application, within the statutory timeframe or that he had queried the matter with the Employer.

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

[38] Prejudice to the Employer will go against granting an extension of time[7]. However the 'mere absence of prejudice to the employer is an insufficient basis to grant an extension of time'.[8] The Respondent submitted that they did not suffer prejudice based on the delay. The employer has not argued specific prejudice, but that he has residual performance issues that would need to be dealt with the employee.

(d) The merits of the application

[39] The merits of the application are a relevant consideration in determining whether to exercise the discretion to extend the timeframe.[9]

[40] A highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[10]

[41] When considering the merits, the Commission may consider whether the employee has a sufficient case.[11] The Commission cannot make any findings on contested matters without hearing evidence.[12] Evidence on the merits is rarely called at an extension of time hearing.[13] As a result of this it has been determined that the Commission 'should not embark on a detailed consideration of the substantive case'.[14] In this matter it can be stated that issues had arisen in the employment relationship between the parties.

[42] The Applicant submitted he hadn't received shifts after his sick leave taken, due to the accident on 25 January 2017. The Applicant submitted that the Respondent asked him to provide a medical clearance to return to work from his doctor on 29 January 2017 which had been provided to Respondent's brother in law on 30 January 2017. The Respondent submitted that the Applicant was not provided further shifts, as the rosters were prepared in advance and his shifts had to be filled.

[43] The Respondent stated that a dismissal did not occur but suggests that a termination would have been validly effected due to the Applicant's aggressive behaviour towards the Respondent, customers of the shopping centre and other witnesses.

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

[44] No evidence submitted to this criterion.

[45] The Act requires the Commission to be satisfied that there are exceptional circumstances, in order to extend the period of time for a person to make an application to deal with contraventions involving dismissal. The term 'exceptional circumstances' has been dealt with in s.394 extension of time applications. These authorities are relevant to the current test in General Protections matters. In addressing the issue of 'exceptional circumstances', I adopt the approach taken by Whelan C in Parker v Department of Human Services[15] (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)[16] as set out below:

"[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression 'exceptional circumstances' as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression "exceptional circumstances" is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 at 208 as follows:

We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."[17]

[46] In addition, the Full Bench in Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers[18] characterised exceptional circumstances as:

"[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act."[19]

[47] The relevant period of "delay", in considering the reason for the delay, according to Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank (Shaw) [20] is the period beyond the prescribed period for filing.

[48] Where the Applicant applies for an extension of time in a matter, when the application is filed out of time, the onus is on the Applicant to satisfy the Commission of those matters in s.366(2) of the Act are relevant to the circumstances of their case.

[49] The Applicant submitted that the reason for delay was due to advice (contrary to the standard explanation) provided by the Commission's Helpline and Registry on two separate occasions. However, the Applicant could not identify the time or day that the calls had been made to the Commission, or the name of the staff member who had advised him.

[50] The Applicant also submitted that a lawyer had advised him to wait file his application and then to file on 14 March 2017. The Applicant could not provide any contact details, name or any further evidence of the lawyer providing that advice. However, the Applicant advised, at the Hearing, that he had an email from his lawyer that advised of the 14 days and attached the application form. When provided with the email, it was an email from the Brisbane Registry to the Applicant confirming receipt of the application, and seeking payment of the fee within 14 days. The email was received by the Applicant at 11.44am on 14 March 2017, after the application was lodged by the Applicant earlier that morning at 9am, the email cannot be found to be the cause or contributing factor in the application being lodged out of time.

[51] The Applicant did not rely on any medical evidence, in regards to the car accident that occurred on 25 January 2017, as the reason of his delay. Given that the medical certificate had expired prior to his dismissal. The Applicant predominantly relied on, for the reasons for delay, being the information provided by a Brisbane Registry staff member, who could not be identified by the Applicant, a lawyer who also could not be identified, and alleged timeframes the Commission's website.

[52] The Applicant's lack of explanation for the delay of 7 days, undermines his reasoning and leaves the period of delay unexplained. The Applicant's reasoning did not provide an impediment to him filing the application within-time as none of his reasoning provided could be sustained by evidence. Accordingly, the basis for delay provided, does not justify exercising the discretion to extend the timeframe.

[53] On the material currently before the Commission, the Applicant has not demonstrated that there are exceptional circumstances to justify the exercise of the discretion to extend time pursuant to s.366(2). Accordingly, the application for an extension of time is refused and therefore the application, pursuant to s.365 of the Act, must be dismissed. I Order accordingly.

Mr Joseph Monon Athian, Applicant (with Sudanese interpreter)

[1] Respondent's submissions dated 18 April 2017 at 1a

[2] Applicant's Form F8 - attachments (updated copy provided 8 May 2017)

[3] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300

[4] Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] FWAFB 7251; (2010) 197 IR 403, 408‒409

[5] Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group [2010] FWA 3863 (Deegan C, 20 May 2010

[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

[10] Haining v Deputy President Drake (1998) 87 FCR 248, 250).

[11] Kyvelos v Champion Socks Pty Ltd (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 [14]).

[15] Wheelan C, [2009] FWA 1638, [30] and [31].

[16] Lawler VP, [2010] FWA 1394.

[17] In this regard Wheelan C referred to Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.

[18] Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251

[20] [2015] FWCFB 287 at [12]

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