DECISION

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

Mr Roger Guest
v
Hills Holdings LTD T/A Hills Connection Solutions
(C2016/1266)

Application to deal with contraventions involving dismissal.

[1] This decision relates to a general protections application by Mr Roger Guest in relation to his contract being terminated by Hills Holding Ltd t/a Hills Connection Solutions (Hills).

[2] The Fair Work Act 2009 (Cth) (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[3] Mr Guest’s contract was terminated on 3 May 2016. Mr Guest’s application to the Fair Work Commission was lodged on 1 June 2016 – some 8 days after the expiry date stipulated by the Act.

[4] A hearing was conducted on 14 July 2016, by telephone, to deal with Mr Guest’s application for an extension of time.

[5] Mr Guest represented himself in these proceedings. Mr Matthew Barton, the Field Operations Quality and Training Manager represented Hills.

Statutory Provisions

[6] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances,” taking into account the following five criteria:

“(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.”

[6] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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.”   

Consideration

Section 366(2)(a) Reason for the Delay

[7] Mr Guest claims that after his contract was terminated he attempted to contact Hills to try and negotiate a resolution of the matter. Mr Guest claims that he sent Hills 63 A4 pages of correspondence in an attempt to explain the errors of the circumstances that led to the contract termination.

[8] Mr Guest claims that his attempts were frustrated by Hills because they would not respond to his correspondence or regular attempts to make contact. Mr Guest argued that by giving Hills time to respond to his correspondence, ie procedural fairness, he simply “ran out of time” to lodge his application. Mr Guest admitted that he knew about the time frame but thought it was only fair to allow Hills an opportunity to respond.

[9] Mr Barton agreed that the correspondence from Mr Guest had been received by Hills. Relevantly, Mr Barton advised that a decision had been made internally not to respond to Mr Guest and simply refer all of the correspondence to the Hills Legal Department.

[10] Mr Guest was not advised by Hills of this internal process. There was no explanation from the Hills Legal Department as to why they chose to ignore the correspondence from Mr Guest or why they chose not to represent Hills in these proceedings.

[11] Mr Guest claims that the actions of Hills in not responding to his email was a deliberate attempt to frustrate his claim and was therefore an exceptional circumstance.
[12] I am satisfied that Hills acted deliberately in not responding to Mr Guest’s correspondence. Mr Guest’s naivety in waiting to lodge his application by providing, what he believed, to be a fair timeframe for Hills to respond should not be to his detriment.

[13] The actions of Hills in deliberately frustrating Mr Guest’s attempts to resolve the dispute is not normal behaviour by an employer.

Section 366(2)(b) – action taken by person to dispute the dismissal

[14] Mr Guest is a very persistent individual who appears to have kept meticulous records of his daily duties and tasks with the Hills. It is not in dispute that Mr Guest has been continuously challenging the termination of his contract since it occurred.

Section 366(2)(c) – Prejudice to the employer

[15] It was held in Brody Hans v MTV Publishing 4 that prejudice to an employer will weigh against the granting of an extension of time. However, it is up to the employer to produce evidence that they would be prejudiced if an extension of time was granted.

[16] Hills did not produce any evidence or make any submission on this issue at the hearing.

Section 366(2)(d) – Merits of the application

[17] In Kornicki v Telstra-Network Technology Group 5 the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 6

[18] Detailed evidence on the merits of a case are rarely dealt with at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 7 for the purpose of determining whether to grant an extension of time to the applicant to lodge their Application.

[19] I adopt the reasoning of the Full Bench of the AIRC in Kornicki.

[20] Hills are confident that they have terminated Mr Guest in accordance with the provision of his contract. Hills claim that Mr Guest had “procedural deficiencies” in relation to his work performance. These deficiencies did not go to the standard of his work but more to the expectation and management of the client, ie, NBN Co. Mr Guest had previously been provided with two warnings plus a performance improvement plan.

[21] Mr Guest claims that he was focused on the customer and the quality of workmanship, or lack thereof, in some of the installations that had been performed by his contemporaries. As a qualified and licensed electrician, Mr Guest was working to a standard that is required by his license but which may not be required or replicated by his peers in the communications industry.

[22] Mr Barton argued that this issue goes to the heart of the problem, ie, Mr Guest is confused in relation to the Client for whom he was working – NBN Co, not the customer of NBN Co.

[23] I am not willing to offer an opinion on the merits of the application. Mr Guest appears to have responses and records to substantiate his actions whilst Hills appears to have followed all of the necessary procedures and protocols to terminate Mr Guest’s contract.

Section 366(2)(e) – fairness as between the person and other persons in a like position

[24] In Morphett v Pearcedale Egg Farm, 8 Deputy President Gostencnik said;

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission”.

[25] I am satisfied that this is not a relevant matter in these proceedings.

Conclusion

[26] I have taken into account all of submissions and information that has been submitted by the parties.

[27] I am satisfied that the action by Hills in not responding to Mr Guest’s correspondence was a deliberate act to frustrate Mr Guest. Such an act by an employer cannot be condoned. The principles of procedural fairness must be paramount in a situation of employment separation. It would be inappropriate and contrary to the objects of the Act if an employer was able to escape the scrutiny of the Act by acting in a manner that was designed to frustrate an employee or the processes of the Act.

[28] I find that the decision by Hills to not respond to Mr Guest’s correspondence created a situation that was “out of the ordinary course and uncommon.”

[29] I find that Mr Guest tried to contact Hills after his termination to challenge the decision and seek a resolution to the issue.

[30] Accordingly, the application for an extension of time is granted.

COMMISSIONER

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by

reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to

begin after a specified day’ the period ‘does not include that day’).

 2   Section 366(2) of the Act.

 3   [2011] 203 IR 1

 4   (1995) IR 298

 5   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 6   Ibid.

 7   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 8   [2015] FWC 8885

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