Kordas v Trustee for the Marshall Family Trust [2016] FWC 947 (11 February 2016) [2016] FWC 947 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.365 —General protections Arthur Kordas v Trustee for the Marshall Family Trust T/A Allure Hair Bar (C2015/6951) DEPUTY PRESIDENT LAWRENCE SYDNEY, 11 FEBRUARY 2016 Application to deal with contraventions involving dismissal. [1] On 14 October 2015 Mr Arthur Kordas (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 the Trustee for the Marshall Family Trust T/A Allure Hair Bar (the Respondent). [2] The Applicant commenced employment with the Respondent on 15 September 2015. He was employed in the Respondent’s hairdressing business in the New South Wales Central Coast. He says that he was dismissed on 22 September 2015 and that the dismissal took effect on that day. [3] The application therefore was lodged one day out of time. Alleged Contravention [4] The Applicant submits that he was dismissed because he queried underpayment of wages, penalty rates and meal breaks. Breaches of ss.340 and 346 are alleged. Respondent’s Submissions [5] The Respondent denies that the Applicant was dismissed. It concedes that payments were queried by the Applicant. These were corrected by the Respondent but the Applicant “stormed out”, was abusive on the telephone and did not return to work. In the Respondent’s view, the Applicant had resigned. [6] The Respondent therefore denies that the Applicant was dismissed. In the alternative, the Respondent submits that the Applicant was not dismissed because he had sought to exercise a workplace right but because of his conduct. Relevant Legislation [7] Section 366 of the Act provides: 366 Time for application 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: (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.” Approach of the Commission [8] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches 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.” Commission Proceedings [11] On 5 November 2015 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 4 December 2016. Ultimately it was agreed by both parties that the matter would be determined on the papers. [12] The Applicant was self-represented. The Respondent was represented by John Ruddell of Employsure Pty Ltd. 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. (a) The reason for the delay [14] The reason quoted by the Applicant was that he sought legal advice and sent the application to the Fair Work Ombudsman by mistake. No substantiation is provided. [15] 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 [16] It appears that the Applicant pursued his alleged underpayment with the Fair Work Ombudsman but there is no evidence of him taking other action with respect to the termination of his employment. [17] Therefore, I am not satisfied that this is a matter of significance in this case. (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. (d) Merits of the application [19] The Applicant would need to establish that he was dismissed. He makes no real attempt to show that the employer took action to dismiss him. [20] It is apparent that there was a dispute about the correct payment of the Applicant, but the Respondent undertook to correct this. Even if there was a dismissal, it appears likely that it could establish that there were reasons to dismiss the Applicant relating to his conduct and performance during this short period of employment. [21] I do not consider that the merits of the application give weight to the existence of exceptional circumstances. (e) Fairness as between the person and other persons in a like position [22] This factor was not addressed and has not been taken into account. Conclusion and Order [23] 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. Order Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Arthur Kordas under s.365 of the Act is dismissed. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code A, PR576993>