[2010] FWA 3181 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
The Applicant
v
Origin Energy Ltd
(C2010/120)
SENIOR DEPUTY PRESIDENT HAMBERGER |
SYDNEY, 19 APRIL 2010 |
General protections dispute involving dismissal – extension of time for lodging application.
[1] The applicant filed an application for FWA on 11 March 2010 to deal with a ‘general protections dispute’ involving a dismissal in accordance with section 365 of the Fair Work Act 2009 (the Act). The applicant was dismissed by Origin Energy Ltd (the respondent) on 21 December 2009.
[2] Section 366 of the Act states
“SECTION 366 TIME FOR APPLICATION
366(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).
366(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.”
[3] The application was made 80 days after the dismissal took effect. This decision concerns whether FWA should allow a further period under subsection 366 (2) of the Act.
[4] Lawler VP, in Mr Christopher Johnson v Joy Manufacturing Pty Ltd t/as Joy Mining Machinery (‘Johnson’) 1 considered the proper approach to extending time limits in relation to unfair dismissal applications under the Act. While the matter currently before me concerns whether to allow a further period for a general protections application, the relevant provisions are in similar (though not completely identical) terms, and similar considerations apply. Accordingly I intend to adopt a similar approach to that taken by Lawler VP in Johnson.
[5] Lawler VP focussed in particular on the inclusion of the reference in the Act to “exceptional circumstances”, contrasting this with the equivalent provision under the Workplace Relations Act 1996. He referred to the discussion of the meaning of the word “exceptional” in a recent decision of the Federal Court of Australia 2. In that decision the Court held that:
“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.”
[6] I agree with Lawler VP that this construction is directed at the ordinary English meaning of the word and, in the absence of any indication to the contrary in the Act, that is the meaning to be given to the word “exceptional” in s.394(3). Given the similarity in wording in the two subsections, I consider that the same meaning should be given to the word “exceptional” in s. 366(2).
[7] I turn now to consider the specific factors specified in s.366(2) of the Act.
S. 366(2)(a): reason for the delay
[8] The applicant gave four reasons for his delay in making the application. First, he says he spent 21 days following the dismissal trying to resolve the matter directly. In particular, he spent the first few days after his dismissal trying to make some initial legal inquiries about his rights. He then on 29 December 2009 emailed the head of the business unit, seeking to rebut the reasons given for his dismissal and drawing attention to the fact that he believed his dismissal had been unlawful. He was sent a final response by the head of the business unit on 11 January 2010.
[9] The second reason the applicant gave for the delay was financial. He wished to focus on obtaining new employment so that he could afford to proceed with legal representation. As it turned out, he proceeded without legal representation as the cost of engaging a lawyer was too great.
[10] The third reason given by the applicant was that he had suffered from “stress-related issues”. He did not elaborate on this, but indicated that he did not obtain any medical attention for this and decided that the solution was to find a new job.
[11] Finally, the applicant says that he was concerned that once it became known within the industry in which he worked that he was taking legal proceedings against his former employer this might adversely affect his employment prospects. He therefore thought it best to try and obtain a new job before pursuing the matter.
S.366(2)(b): action to dispute the dismissal
[12] As already noted, the applicant had contacted the head of his business unit to dispute his dismissal, a matter of days after it occurred.
S.366(2) (c): prejudice to the employer
[13] There is no evidence to indicate there would be any particular prejudice to the employer from granting the extension of time.
S.366(2)(d): merits of the application
[14] The applicant commenced employment with the respondent on 6 July 2009. He was terminated after a probation review. The feedback he was given by his manager on the day of his termination included concerns about his inadequate “proactiveness”, the inadequate development of his analytical skills and industry/business knowledge and his “work ethic”. In particular he was criticised for arriving late for work, making excessive personal phone calls, taking excessive lunch breaks and leaving work too early. His manager had previously told him that time taken for personal appointments and errands during business hours needed to be made up. The applicant alleges that the references to arriving late for work and personal appointments during business hours concerned medical appointments for a shoulder injury he had sustained on 30 July 2009. On that basis he alleges that the respondent had breached s.352 of the Act which prohibits dismissal on the grounds of temporary absence from work due to illness or injury. The respondent denies that the absence of the applicant at medical appointments played any part in his dismissal.
[15] On the basis of the information available to me it is conceivable that the application has some merit.
s.366(2)(e): fairness when compared to other persons
[16] I do not consider that this factor has any relevance to this case.
[17] Having had regard to all the factors, I find that there are no exceptional circumstances that would justify granting the applicant an extension of time. There is nothing out of the ordinary in the applicant finding his dismissal stressful, either financially or psychologically. While he did first seek to resolve the matter directly with the respondent, his efforts in that regard were exhausted well before the 60 day period for lodging his application ran out. Nor do I find his fears about any potential damage to his employment prospects from lodging an application prior to obtaining a new job a convincing explanation for his delay. To the extent that such an argument could ever be used to explain a delay in making an application (and I am not sure that it could) there was nothing special about the applicant’s situation in this regard.
[18] I decline to allow the applicant additional time. The application is accordingly dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
The Applicant
M. Carey for the respondent
Hearing details:
SYDNEY
2010
9 April
2 Mann v Minister for Immigration and Citizenship [2009] FACFC 150
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