Andrew John Rennie (Applicant) v Australian Leisure and Hospitality Group Pty Ltd (Respondent) [2020] FWC 204

[2020] FWC 204 The attached document replaces the document previously issued with the above code on 5 March 2020 to correct a typographical error at paragraph [19]. Associate to Deputy President Mansini. 6 March 2020. -- 1 of 9 -- -- 2 of 9 -- 1 Fair Work Act 2009 s.365—General protections Andrew John Rennie (Applicant) v Australian Leisure and Hospitality Group Pty Ltd (Respondent) (C2019/6012) DEPUTY PRESIDENT MANSINI MELBOURNE, 5 MARCH 2020 Application to deal with a general protections dispute involving dismissal – application filed out of time – circumstances not exceptional – application dismissed. [1] This decision concerns whether to extend the time within which to lodge an application for the Commission to deal with a general protections dispute involving dismissal, made under s.365 of the Fair Work Act 2009 (Cth) (Act). [2] I have determined that Mr Andrew Rennie (the Applicant) did not file within the statutory timeframe and should not be allowed a further period within which to lodge his application. The reasons for this decision follow. Historical context [3] On 3 September 2018, the Applicant commenced casual employment as a Chef for the Respondent at its Capalaba Tavern. [4] On 15 January 2019, the Applicant made a workplace complaint, alleging inappropriate behaviour by two team members at the Capalaba Tavern. On 25 January 2019, the Applicant was notified that his complaint had been investigated and the appropriate action taken.1 [5] On 11 February 2019, the Applicant made application under s.789FC of the Act seeking orders for “bullying to stop and a fair amount of casual hours of work 25h/per week” (the Stop Bullying Claim).2 1 Appendix A to the Application. The Applicant raised further concerns regarding this workplace complaint on 1 February 2019 and on 27 February 2019 was advised of a further investigation and resolution. 2 Appendix C to the Application. [2020] FWC 204 DECISION -- 3 of 9 -- [2020] FWC 204 2 [6] By discussion and email on 14 February 2019, the Applicant was advised that for budget reasons there were no casual hours available for him at the Capalaba Tavern but he would be offered hours at the Respondent’s Springwood Hotel. The Applicant did not agree to accept shifts at the Springwood Hotel, because he could not afford to travel sixty kilometres away from his home all the time.3 [7] The Applicant pursued his Stop Bullying Claim, which proceeded to conference before Commissioner Booth on 7 March 2019 but did not resolve. [8] On 12 March 2019, the Applicant filed an application under s.372 of the Act (the First General Protections Claim). That application alleged a breach of the general protections provisions during the course of employment because the Respondent provided a “false and misleading” response to the Commission in relation to the Stop Bullying Claim. [9] On 4 April 2019, the First General Protections Claim proceeded to conference before Deputy President Lake. On 8 April 2019: a) The Applicant advised the chambers of Deputy President Lake and the Respondent that he wished to resign “for personal reasons effective as at 8 April 2019”; b) The Respondent provided a statement of service confirming “cessation of employment” as at 8 April 2019; and c) The parties mutually executed a document titled terms of settlement.4 [10] On 30 June 2019, the Respondent completed an employment separation certificate, which records that the Applicant’s employment ceased due to “shortage of work” on 7 April 2019.5 [11] On 17 July 2019, the Applicant responded to correspondence from the chambers of Commissioner Booth to advise that he wished to have his Stop Bullying Claim heard. On 25 September 2019, the Stop Bullying Claim was dismissed.6 [12] On 30 September 2019, the Applicant completed and filed this application under s.365 of the Act (the Second General Protections Claim). This application alleges breach of the general protections provisions involving dismissal of his employment because the Respondent provided a “false and misleading” response to the Commission in relation to the Stop Bullying Claim. It also alleges that the Applicant “had no choice but to take the redundancy as ALH (the Respondent) could not provide me with a safe work place”. 7 Procedural context [13] On 1 November 2019, the Second General Protections Claim proceeded to conference before a Staff Conciliator. The matter was not resolved in conference. The Respondent 3 Appendix B to the Application and the Applicant’s evidence at the Hearing. 4 Response to the Second General Protections Claim, filed on 16 October 2019 (Response) and Appendix F to the Application. 5 Appendix F to the Application. 6 Accepted by both parties in evidence at the Hearing of the Second General Protections Claim on 6 January 2020. 7 Application, at paragraph 3.1. -- 4 of 9 -- [2020] FWC 204 3 subsequently pressed an objection on the basis that the application was filed outside the 21 day statutory timeframe and the matter was allocated to me for determination. [14] On 13 November 2019, the Second General Protections Claim was listed for Mention. A program for the exchange of materials and available resources to assist the parties was discussed. [15] The matter proceeded to hearing on 6 January 2020. The Applicant did not oppose the Respondent’s request for permission to be represented by a lawyer, which was granted having regard to the matters at s.596 of the Act. Was the application filed out of time? [16] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). [17] The Respondent does not agree that the Applicant was “dismissed”. It maintains that he voluntarily resigned from his employment on 8 April 2019 following the conference in relation to the First General Protections Claim; whereas the Applicant argues that he was forced to resign because the Respondent could not offer him a safe workplace. For the purposes of dealing with this application, it is not necessary to determine whether the Applicant was dismissed because it is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1 of the Act.8 [18] However, in assessing whether an application was made within the statutory timeframe, it would appear necessary to identify an effective date of the alleged dismissal. In the ordinary course, the effective date is a question of fact to be determined on the evidence before the Commission.9 A recent Full Bench indicated caution should be exercised in determining the effective date in a case where an allegation of dismissal is disputed so as not to exceed the jurisdiction of the Commission by “correlatively” determining the substantive application.10 [19] In this case, the Applicant was unclear about the effective date of his alleged dismissal however ultimately accepted that his employment had at the very latest come to an end on 8 April 2019.11 That position is consistent with the evidence of the mutually executed settlement agreement, the Applicant’s communication of 8 April 2019 to Deputy President Lake and the Respondent and the statement of service on the Respondent’s letterhead, although I do not consider this to be necessarily correct. It would appear that the Applicant’s casual employment may have ended in early February 2019 upon completion of his last engagement, however this was not argued before me and would establish a lengthier delay. [20] Accordingly, for present purposes, I accept the Applicant’s final position and find that the effective date of the alleged dismissal was 8 April 2019. It follows that the 21 day 8 Hewitt v Topero Nominees Pty Ltd [2013] FWCFB 6321. 9 Byrne v Australian Airline [1995] HCA 24 at page 428. 10 Milford v Coles [2019] FWCFB 2277 (Milford) at [21]. 11 Accepted in cross examination at the Hearing. -- 5 of 9 -- [2020] FWC 204 4 statutory time for filing expired at midnight on 29 April 2019 and this application was filed 154 days outside of that timeframe. Are there exceptional circumstances justifying an extension of the time for filing the Second General Protections Claim? [21] Having concluded that the application was made after the prescribed timeframe, it is necessary for the Applicant to obtain an extension of time under s.366(2) to make the application. This can only occur if I am satisfied that there are “exceptional circumstances”. The matters to which I must give consideration are set out in s.366(2) of the Act. [22] The exceptional circumstances test establishes a high hurdle for an applicant.12 In this context, to be exceptional the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.13 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 can be considered exceptional.14 [23] My consideration of the matters set out at s.366(2) follows. Reason for the delay – s.366(2)(a) [24] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an “acceptable” or “reasonable” or “credible” explanation.15 The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment whereas a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour.16 Ultimately, it is a question of degree and insight.17 [25] The period of the delay is that commencing immediately after the time for lodging an application had expired and ending on the day on which the application was lodged. However, the circumstances from the date the dismissal took effect may be considered relevant in assessing the explanation for the delay.18 [26] In summary, the Applicant asked the Commission to consider that the reason(s) for his delay in filing the Second General Protections Claim were as follows: a) His confusion about the effective date of his dismissal; b) His lack of familiarity with the legislation and the statutory timeframe for filing; and c) His mistaken belief that, whilst the First General Protections Claim and Stop Bullying Claim were on foot, he “still had a chance to be heard”. 12 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901(Stogiannidis) at [14]. 13 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) at [12] and Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine [2016] FWCFB 6963 (Perry) at [21]. 14 Ibid. 15 Perry at [23]; Matthews v Roy Morgan Interviewing Services Pty Ltd [2018] FWC 7355 at [7]. 16 Stogiannidis at [39]. 17 Green v Bilco Group Pty Ltd [2018] FWC 6818 at [8]. 18 Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]-[33]; Perry at [23]. -- 6 of 9 -- [2020] FWC 204 5 [27] The Respondent asked the Commission to find that the Applicant’s dissatisfaction with the outcome of the other claims was the real reason for filing this claim when he did, and is not a sufficient or acceptable reason for the delay. Further, the Respondent argued that the Applicant had successfully made and navigated prior claims under the Act, including in previous employment with another employer, so could hardly claim ignorance of its requirements or processes. [28] I accept that the Applicant may have initially felt unclear about the effective date of his dismissal. However there is no doubt that, in agreeing to resolve the First General Protections Claim, the Applicant took steps to confirm an end to his employment which he expressed in that context as “effective as at 8 April 2019”. Accepting the latest possible date of 8 April 2019 as the effective date of the alleged dismissal, the Applicant had 21 days until 29 April 2019 to file this claim, but waited a further 154 days from the expiry of that 21 day timeframe to file. [29] I have had regard to the Applicant’s mistaken belief that he could bring this claim without time limitation having commenced the other claims. Mere ignorance of the statutory time limit does not amount to an acceptable or reasonable explanation for the delay and is not an exceptional circumstance.19 Further, the Applicant could have obtained (and eventually did obtain) legal advice and there is substantial information on the Commission’s website about how to lodge general protections applications, including the timeframes associated with filing. For completeness, in the circumstances of this case, I consider the Respondent’s contentions about the Applicant’s prior experience in this jurisdiction to be irrelevant. [30] On the materials, submissions and evidence before the Commission. I am unable to identify any acceptable, reasonable or credible explanation for the delay in filing and consider this weighs against the grant of an extension of time in this case. Action taken to dispute the dismissal – s.366(2)(b) [31] In respect of s.366(2)(b), I am required to take into account any action taken by the Applicant to dispute the dismissal. Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the grant of an extension of time.20 The Commission will consider any action taken to put the employer on notice that the issues in contest had not reached finality and would be contested in the near future.21 [32] As the historical context reflects, the Applicant had sought to address his concerns with the Respondent through a variety of channels since January 2019. Relevant to the allegation of dismissal as made in this application and notwithstanding the settlement agreement of 8 April 2019, the Respondent was on notice since at least since 17 July 2019 (when the Applicant advised of his intention to pursue the Stop Bullying Claim) that the matters in dispute had not reached finality and would continue to be contested. [33] As I am required to have regard to steps taken to dispute the dismissal, I consider this weighs only slightly in favour of a finding of exceptional circumstances in this case. 19 Nulty at [14]. 20 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300. 21 Wilson v Woolworths [2010] FWA 2480 at [19]-[21]. -- 7 of 9 -- [2020] FWC 204 6 Prejudice to the employer – s.366(2)(c) [34] The Applicant submitted that there was no prejudice to anyone but himself as a result of the delay in this application. [35] The Respondent anticipated difficulty in contacting witnesses who are no longer in employment. It did not elaborate on those difficulties such that I am not able to identify any particular prejudice that the Respondent would suffer. I consider this to be a neutral factor in this case. Merits of the application – s.366(2)(d) [36] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances. [37] To succeed in his claim, the Applicant would need to establish that there was a dismissal and that the dismissal was in contravention of the general protections provisions of the Act. [38] As detailed above, the Applicant’s contention that he was dismissed (whether forced to resign, as the application appears to allege, or otherwise) is strongly disputed on the basis that the Respondent says he voluntarily resigned on 8 April 2019. [39] In any event, the Applicant has not articulated a contravention of the general protections provisions of the Act. The alleged contravention was repeatedly expressed throughout these proceedings as a denial of workplace rights due to the Respondent having provided a false and misleading response to the Commission in relation to the Applicant’s Stop Bullying Claim. Such allegation may have appropriately been a matter for ventilation and consideration in the course of Stop Bullying Claim proceedings but does not establish a proper basis for this application. [40] As the Applicant was unclear and unrepresented, I have considered the objective facts which may point to a basis for alleging that the decision not to offer the Applicant further hours at the Capalaba Tavern was linked to his workplace complaint and/or his Stop Bullying Claim in contravention of s.341(1)(c) of the Act. [41] However, even if the Applicant could make out a dismissal in contravention of the general protections provisions, the Respondent has foreshadowed a further objection in that it contends that the substance of this Second General Protections Claim is the same as the First General Protections Claim which has already been litigated and resolved. In this respect, there is evidence that the First General Protections Claim was resolved on the basis of a settlement agreement which would appear to be binding within the meaning of Masters v Cameron [1954] 91 CLR 353 and includes a release from further claims in relation to the cessation of the employment. On the materials before me, that further objection is compelling. [42] For these reasons, I consider the merits of this Second General Protections Claim are weak but as presently untested at best weigh neutrally towards a finding of exceptional circumstances in this case. -- 8 of 9 -- [2020] FWC 204 7 Fairness as between the person and other persons in a similar position – s.366(2)(e) [43] Applications to extend time generally turn on their own facts. The parties did not draw to my attention any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. [44] I consider this to be a neutral consideration in the present matter. Conclusion [45] The time limit that applies to the exercise of a person’s right to bring an application under s.365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances. [46] Having regard to all of the matters that I am required to take into account under s.366(2), I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable, reasonable or credible explanation for the very lengthy delay in filing the application which I consider weighs heavily against the grant of an extension in this case. The Applicant took some steps to dispute the alleged dismissal, whereas other factors are neutral. In my view, the circumstances of this case are not exceptional, either individually or when considered together. [47] I decline to grant an extension of time under s.366(2). Accordingly, the Applicant’s application under s.365 of the Act is dismissed. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR715922> -- 9 of 9 --