Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - application lodged out of time - no exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2) - application dismissed.

[1] On 26 October 2018 Mr Ra'id Misconi (the Applicant) made an application under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Negri Contractors (Vic) Pty Ltd (the Respondent) on 24 September 2018 in contravention of the general protections provisions in the Act. In his application, Mr Misconi contended that the Respondent contravened ss.340, 346 and 351 of the Act which deal with protection and discrimination.

[2] Mr Misconi's application was lodged 11 days outside the 21 day statutory timeframe specified in the Act. This decision deals solely with the issue of whether there are exceptional circumstances warranting the Fair Work Commission (the Commission) granting Mr Misconi a further period within which to lodge his application.

[3] For the reasons outlined below I have determined that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2) of the Act. Accordingly, Mr Misconi's application will be dismissed.

[4] By way of background, Mr Misconi commenced employment with the Respondent on 2 March 2018 as a Quality, Safety and Environment Manager working three days per week. Following his dismissal Mr Misconi sent two emails to Mr Ron Negri, the Respondent's Managing Director, in an effort to reach an amicable resolution. The first of those emails was sent on 1 October 2018 and included the following:

"Prior to this immediate unfairly [sic] dismissal, I was subject to work abuse, dishonest accusation, and personal humiliation ...

Work Abuse: I was subject to work abuse, please refer to the content of Beau's email dated 18/09/2018, many unacceptable/abusive words mentioned. On 19/9/2018, I met Ian following his request, I was asked this question, "Are you happy to move on and meet Beau", I answered happy to sort out all aspects, however I need an apology for his offence [sic] email, then we agreed to meet all on 24/9 2018, no apology made.

Dishonest accusation: In the meeting dated 24/9/2018 and with reference to the conformance raised for the broken water supply on 12/9/2018, I was accused by Beau that I have called the Plumber and ask to raise his invoice amount from $530 to $690. I could not believe that I accused with dishonesty. I have requested immediate investigation, to call Elizbeth [sic] as witness, but my request was denied

Personal humiliation: To terminate my employment immediately and reject my request to work 3 weeks before leaving Negri. I worked for than 38 years. I have seen these [sic] happened twice only (immediate dismissal for employee who conducted immoral work misconducts). In addition, Ian elect to pay me 2 weeks only, I am entitled for 3 weeks"

[5] Mr Misconi's emails did not result in a resolution of the matter and on 26 October 2018 he lodged his general protections application with the Commission.

[6] Section 366 of the Act provides:

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:

(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."

Whether to allow a further period for the application to be made

[7] 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.

[8] In his written submissions Mr Misconi submitted that he was shocked and troubled by his dismissal and the events leading up to it, adding that he needed a few days to settle to consider his options. Mr Misconi further submitted that Mr Negri was overseas until 12 October 2018 and that he anticipated that Mr Negri would "sort this matter" after his return. In summary, Mr Misconi submitted that he decided not to file his application earlier as he thought this might jeopardise reaching an amicable resolution with the Mr Negri.

[9] At the telephone hearing, Mr Misconi essentially reiterated aspects of his written submissions. In response to questions from the Commission Mr Misconi:

• confirmed that he decided not to file his application earlier as he thought doing so might jeopardise the prospects of reaching an amicable resolution with Mr Negri; and

• stated that he became aware of the 21 day statutory timeframe about 10 days after his dismissal.

[10] I note that in his submissions Mr Misconi also submitted that he filed an unfair dismissal application on 25 October 2018 but was advised by the Commission to resubmit the application as a general protections application. Given that 25 October 2018 was also outside the 21 day statutory timeframe I do not consider this to be a material consideration in determining whether or not there are exceptional circumstances warranting the Commission granting a further period of time for Mr Misconi to make his application.

[11] At the telephone hearing the Respondent stated that it disagreed with most of Mr Misconi's oral submissions.

[12] While I note Mr Misconi's desire to resolve the matter amicably this of itself did not preclude him from filing his application within the 21 day statutory timeframe and continuing his efforts to resolve the matter directly with Mr Negri, particularly as Mr Misconi was aware of the statutory timeframe for making an application. Against that background, the reasons for the delay relied upon by Mr Misconi do not support a finding that there were exceptional circumstances in this case.

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

[13] It is not disputed that Mr Misconi through his emails to Mr Negri on 1 and 14 October 2018 took steps to dispute his dismissal. I therefore consider this factor to be a neutral consideration.

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

[14] In his written submissions regarding this factor Mr Misconi simply referred to that aspect of his submissions regarding why his application was lodged outside the 21 day statutory timeframe.

[15] The Respondent submitted that the lateness of Mr Misconi's application had caused it to spend a considerable amount of time and money on dealing with the matter when it considered that the matter had been dealt with properly in the first instance.

[16] While I note the Respondent's concern regarding the time and cost it had incurred to date, that of itself does not constitute prejudice. Accordingly, I consider the issue of prejudice to be a neutral consideration.

[17] Other than referring to the reasons for delay in lodging his application Mr Misconi's submissions did not provide any details as to why he considered his dismissal to be in contravention of the general protections provisions of the Act. In response to a question from the Commission at the telephone hearing regarding how he considered the Respondent had contravened the general protections provisions of the Act Mr Misconi contended that he had been subjected to bullying by the Respondent and that the Respondent:

• had made biased decisions affecting him;

• would not let him do what he was supposed to do;

• had not paid attention to his recommendations;

• accused him of dishonesty; and

• discriminated against him by not listening to his arguments and by being biased towards the Project Manager.

[18] The Respondent submitted in its written submissions that Mr Misconi had not indicated how it had breached the general protections provisions of the Act and that therefore it was unable to respond on this issue other than to state that Mr Misconi was terminated for just cause due to unsatisfactory work performance. As previously mentioned, at the telephone hearing the Respondent stated that it disagreed with most of Mr Misconi's oral submissions.

[19] Mr Misconi's oral submissions and the other material he has provided to the Commission, including his abovementioned email of 1 October 2018 to Mr Negri, do not point to the merits of Mr Misconi's being strong. This in turn does not support a finding that there were exceptional circumstances in this case

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

[20] Mr Misconi made no submissions on this point.

[21] The Respondent on the other hand submitted that if an extension of time was granted in this case that it would set a precedent for other employees such that they too could be late in filing their applications. This, the Respondent contended, begged the question - why set a time period in the first place?

[22] While I note the Respondent's contentions regarding this issue, I consider this factor to be a neutral consideration.

[23] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group[1](Nulty) in the following way:

"[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."

[24] Having considered all of the factors set out in s.366(2), and drawing on the decision in Nulty, 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). Based on Mr Misconi's responses at the hearing it was apparent that he was aware of the 21 day statutory timeframe for making a general protections application and that he made a conscious decision not to file his application until it is apparent that his attempts to resolve the matter with Mr Negri would not succeed. While I acknowledge Mr Misconi's desire to resolve the matter amicably, in my view it did not preclude him from lodging his application within the 21 day statutory timeframe and continuing his efforts to resolve the matter.

[25] Another important consideration underpinning my finding that there are no exceptional circumstances in this case is my assessment that the merits of Mr Misconi's application are not strong.

[26] Accordingly, Mr Misconi's the application is dismissed. An order to that effect will be issued with this decision.

[1] [2011] FWAFB 975

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