[2013] FWC 2634

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FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Timothy Dwyer
v
Verifact Pty Ltd T/A Verifact Security
(C2013/3171)

COMMISSIONER SPENCER

BRISBANE, 18 JUNE 2013

Application for FWC to deal with a general protections dispute - extension of time s.366.

Introduction

[1] This decision relates to an application made by Mr Timothy Dwyer (the Applicant) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) involving a dismissal from his employment by Verifact Pty Ltd (the Respondent/the Employer). The Applicant now applies for an extension of time. This decision relates to the extension of time only.

[2] The matter was conciliated before the Fair Work Commission (the Commission) on 20 March 2013. The matter was not able to be resolved.

[3] The application was filed on 15 February 2013. It is difficult to accurately discern from the Applicant’s materials what date his employment with the Respondent ended. Although the Respondent does not agree that the Applicant was dismissed, on the materials, the Applicant’s employment ended in about February or March 2011. The Applicant has provided some reference to a conversation on 11 February 2012, and on the Applicant’s material the last date of work was 11 February 2011.

[4] It is in dispute, however, when the termination actually took effect and at whose initiative. The Application was filed approximately two years after the Applicant’s employment ended and therefore was significantly out of time.

[5] Directions were set for the filing of submissions and evidence in relation to the jurisdictional objection. Material was filed by both parties in accordance with Directions.

[6] Following a directions conference, both parties consented to the matter being determined on the papers without the need for a formal hearing.

[7] It is noted that, while not all of the evidence and submissions in this matter, is referred to all of such has been considered.

[8] The Applicant has provided the Commission with a significant amount of material. The Applicant has also referred to some mental health issues that he was experiencing, as a result of his dismissal.

[9] The directions for the filing of submissions set out the section of the Act, relevant to an extension of time in a general protections matter, and the parties were directed to respond to those matters. The parties have not strictly complied with these directions as to the content they have provided.

Relevant Provisions of the Legislation

[10] The substantive application has been made pursuant to s.365 of the Act. Section 366, as it was at the time of the Applicant’s dismissal, provided as follows:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

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

(2) FWA may allow a further period if FWA 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.”

Summary of the Applicant’s Submissions and Evidence

[11] The Applicant’s submissions, as stated, do not strictly relate to those matters relevant to the exercise of the discretion under s.366(2), despite him being provided with the legislative provision. However the following points arise from the Applicant’s material.

[12] The Applicant has raised a number of meetings and interactions that he had throughout his period of employment with the Respondent. It is clear that the Applicant has felt personally aggrieved, since the finalisation of his employment. It is in dispute between the parties whether the Applicant was dismissed within the meaning of the Act or whether he resigned from his employment. It is not necessary for the Commission to make a finding on this, at this time.

[13] The primary incident which the termination revolves around appears to relate to an event at the Dalby show ground, at which the Applicant was acting as a Security Officer. It is however difficult to discern any clear evidence regarding this incident. As stated a determination of this point is not required at this stage.

[14] The Applicant submitted a document which purported to be an affidavit of Andrew Rogers, a former colleague of the Applicant who also acted as a Security Officer for Verifact Security. The statement however appears to be in the same disjointed style of communication that the Applicant himself has used in communicating with the Commission. It is unclear if the document is actually an affidavit of Mr Rogers. However the Respondent did not seek to object to its tender or seek to cross-examine Mr Rogers. The document has been considered as a statement from Mr Rogers.

[15] Mr Rogers’ statement is in response to the allegations of misconduct that appear to have been put to the Applicant prior to the alleged termination of his employment. Mr Rogers also provides some personal opinion of the Applicant as a person. His statement also comments on the Applicant’s declining mental health, from the time of his termination.

[16] The Applicant provided documents, which he presented as workplace policies of his former employer.

[17] A “Mental Health Care Plan Report” for the Applicant has also been provided. The report was compiled by Mr Paul Dunne, Allied Health Professional (Psychologist), dated 1 February 2013. This report acknowledged the continuing difficulties the Applicant has experienced with his mental health. The report also makes reference to the Applicant’s working history and some of the history of his termination. Mr Dunne’s opinion in relation to these matters (he has reported) is clearly informed by the Applicant’s advice to him and not on any direct evidence as to the termination, accordingly, given this, no weight can be placed on the report, where it relates to the second-hand history of the employment relationship.

[18] The Applicant also submitted a statement of Ms Phillippa Dwyer, his sister. Ms Dwyer’s statement similarly, primarily, relays information that the Applicant has given to her and observations that Ms Dwyer has made about the Applicant’s mental state since his termination.

[19] The Applicant has also submitted a number of emails that he has sent to various organisations after his termination seeking information from them in relation to his termination with the Respondent.

Summary of the Applicant’s Submissions and Evidence

[20] The Respondent filed a single page in response to the application for extension of time. It did not specifically address all of those matters required as set out in s.366.

[21] The Respondent submitted that the Applicant has not provided “sufficient explanation” as to the reason for the delay.

[22] The Respondent submitted that the Applicant was relying on his inability to pay for legal advice and his mental health issues as to the reasons for the delay, in filing his application.

[23] In relation to the inability to pay issue, the Respondent submitted that the filing fee for an application pursuant to s.365 is minimal and that the Applicant could have applied for a waiver of the fee.

[24] With regard to the Applicant’s mental state the Respondent referred the Commission to the material filed by the Applicant which indicated that the Applicant did not seek medical assistance for his mental health issues until approximately a year after the end of his employment.

[25] The Respondent did make a submission in relation to attempts to dispute the termination. The Respondent submitted that the Applicant actually undertook work for another security company after his dismissal and that further the Applicant did not contact the Respondent or BG Company in relation to the alleged termination until a year after the dismissal.

[26] The Respondent further submitted that the Applicant did make an application to Workcover but this was not until September 2012 being more than a year after the termination. The Workcover claim was rejected.

Consideration

[27] It is not possible on the material before the Commission to determine the exact date which represents the date by which the Applicant must have filed his application. However it is agreed between the parties that the Applicant’s employment ended around February or March 2011. The Applicant’s material indicates that the last day of work was 11 February 2011. In accordance with s.366(1)(a) and application pursuant to s.365 of the Act must have been made by April or May 2011. The application was therefore approximately two years out of time.

[28] 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 a general protections application. 1 The term ‘exceptional circumstances’ has been dealt with in relation to unfair dismissal matters; these case authorities are also relevant to the consideration of ‘exceptional circumstances’ in relation to general protections matters. In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services2 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)3 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) [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.” 4

[29] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers 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.” 5

[30] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account those matters in s.366(2) of the Act. I will consider each of those criteria in turn.

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

[31] The Applicant submitted that his inability to pay for legal advice and his mental difficulties since the time of termination explain the lengthy delay.

[32] The Applicant has not provided any information about attempts to seek information from Fair Work Australia (as it then was) or the Fair Work Ombudsman or any other agency able to provide information in relation to his alleged termination of employment.

[33] The Applicant has not provided any information about attempts to seek any advice or any instances where he was refused advice because of his inability to pay fees.

[34] In relation to the Applicant’s mental health issues, the Applicant has provided some information from health professionals, but, as the Respondent has identified, the material from the Applicant in this regard relates to periods already outside the 60 day timeframe.

[35] The Respondent emphasised that the Applicant voluntarily resigned in March 2011 and any action to dispute his alleged dismissal did not occur until approximately a year after the end of the Applicant’s employment. The Respondent noted that the Applicant did not seek the services of a psychologist until February 2012 and any further contact with the Respondent was not made until over a year later.

[36] The Applicant has not been able to adequately explain the extensive delay.

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

[37] The Applicant has provided a large amount of correspondence that the Applicant has made with various persons in the Respondent, Workcover, and others. As the Respondent submitted however all of this correspondence took place well after the 60 day time limit.

[38] The Applicant has not attempted to dispute the termination of his employment within the 60 day time limit.

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

[39] Neither party made particular submissions as to this matter.

[40] The Respondent did submit that the Applicant’s first contact with the Respondent was not until September 2012 when he lodged a worker’s compensation application.

[41] It does appear that the Respondent and related entities have been dealing with the Applicant on and off since the time of his termination. However this information does not provide reasonable explanation commensurate with the extensive delay.

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

[42] Insufficient information has been given as to the merits of the application. It would appear that a matter arose involving the Applicant and allegations that the Applicant refutes. The Respondent submits that the Applicant voluntarily resigned.

[43] No weight can be attributed to the merits of the matter, given the nature of the submissions and the disparity between the parties.

s.366(2)(e) - fairness as between the person and other persons in a similar position

[44] Neither party made a submission on this point.

Conclusion

[45] Where the Applicant applies for an extension of time in a matter, the onus is on the Applicant to satisfy the Commission of those matters in s.366(2) of the Act as applies to the circumstances of their case.

[46] The application does not raise any matters which can be considered to be ‘exceptional circumstances’ and that provide reasons justifying the lengthy delay.

[47] 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.

COMMISSIONER

 1   Fair Work Act 2009 (Cth) s.366(2).

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

 3   Lawler VP, [2010] FWA 1394.

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

 5   Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5].

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