Fair Work Act 2009_

s.365 - General protections

Application to deal with contraventions involving dismissal.

[1] On 23 September 2016 Mr Robert Weir (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 Hydro-Chem Pty Ltd (the Respondent).

[2] The Applicant commenced employment with the Respondent on 12 March 2013. He was a Service Technician with the Respondent's business which involved the cleaning of water towers in and around Brisbane. He says that he was dismissed on 28 July 2016 and the dismissal took effect on that day.

[3] The application was lodged 36 days out of time.

[4] The Applicant was dismissed for alleged misconduct during a disciplinary meeting on 28 July 2016. However, the Applicant alleges that he was dismissed following a number of unjustified warnings and instances of intimidation. The primary incident which the Respondent relied on to dismiss the Applicant occurred at the Arnotts' factory on 26 October 2015. The Applicant says that the Respondent's account of the incident is false and fabricated. Breaches of ss.340 and 343 are alleged.

[5] The Respondent denies these allegations and further denies that there has been a breach of the General Protections provisions of the Act.

[6] The Respondent states that the Applicant was dismissed as a result of a number of issues with his performance. The 26 October 2015 incident at Arnotts could not be dealt with until July 2016 because the Applicant was on extended personal leave. It involved serious breaches of operating procedures which caused significant loss to the client, Arnotts. The details of these incidents and the disciplinary procedures undertaken by the Respondent are set out in detail in the F8A response.

[7] 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."

[8] 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] FWAFB 975; (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."

[9] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] FWAFB 7251; [2010] 197 IR 403).

[10] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

"[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

'[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …'

[30] This extract must be read in its entirety. The decision goes on to state:

'[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.'

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach."

[11] On 14 October 2016, 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 14 November 2016.

[12] The Applicant was self-represented. The Respondent was represented by Mr I. Heathwood, solicitor, together with Mr N Duncan and Mr G Richardson from the Respondent. Mr Heathwood was granted permission to appear pursuant to s.596 of the Act.

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

[13] 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.

[14] The primary reason for the delay in filing, given by the Applicant, is his medical condition and he does provide some medical evidence. However, the main explanation appears to be difficulty in getting an appointment with his psychologist.

[15] The Respondent points out that the Applicant did not attend his doctor until 25 August. The Respondent also relies on the decision of WorkCover Queensland with respect to the Applicant's workers compensation claim. It is noted that he was declared fit to return to work in mid-July. There is no evidence that the Applicant was incapacitated such that he could not file the application in time.

[16] Accordingly, the reasons for delay cited by the Applicant fall short of establishing exceptional circumstances.

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

[17] There is no evidence that the Applicant separately disputed his dismissal.

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

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

[19] The Applicant makes a number of assertions of manufactured allegations against him. It is difficult to discern a workplace right which would be held to be breached.

[20] On the other hand, the Respondent provides a lot of convincing detail about the warnings given to the Applicant about his conduct and performance. This is particularly the case with respect to the incident at Arnotts. It is very likely, in my view, that the Applicant's performance problems would be considered to be the operative reasons for his dismissal.

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

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

[22] 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.

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

I. Heathwood, solicitor with N. Duncan and G. Richardson for the Respondent.

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