Parmenter v Alcamaco Pty Ltd [2016] FWC 1456 (7 March 2016) [2016] FWC 1456 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.365 —General protections Anthony Parmenter v Alcamaco Pty Ltd (C2015/5848) DEPUTY PRESIDENT KOVACIC CANBERRA, 7 MARCH 2016 Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed . [1] Mr Anthony Parmenter (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 26 August 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Alcamaco Pty Ltd (the Respondent) in contravention of the general protections provisions in the Act. As the application did not specify a termination date, the Commission subsequently contacted Mr Parmenter who advised that he had been dismissed on 9 July 2015. [2] As Mr Parmenter’s application had been lodged twenty seven days outside the statutory timeframe for lodgement, the Commission issued Directions on 11 September 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. [3] The extension of time issue was the subject of a telephone hearing on 2 November 2015. At the telephone hearing, Mr Parmenter appeared on his own behalf, while Mr Rick Stewart, the Respondent’s Director, appeared for the Respondent. [4] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed. Background [5] The Respondent is a trolley collection company contracted to Woolworths’s Casino (NSW) store. Mr Parmenter commenced employment with the Respondent approximately ten years ago as a Trolley Collector. [6] In his application, Mr Parmenter alleged that he was dismissed from his employment for asking about his superannuation entitlements. [7] The Respondent contended that Mr Parmenter was dismissed as a result of his performance, adding that on the issue of superannuation it had been asking Mr Parmenter for some time to complete superannuation related forms so that they could be lodged with the relevant fund to enable contributions to be made. The Respondent further contended that it met with Mr Parmenter on 13 July 2015 to discuss his performance and that it was at that meeting that Mr Parmenter was dismissed. [8] As noted above, Mr Parmenter’s application was received by the Commission on 26 August 2015, twenty three days outside the statutory timeframe specified in s.366(1)(a) of the Act (based on a termination date of 13 July 2015 as contended by the Respondent). In his application, Mr Parmenter contends that his dismissal contravened s.340 of the Act which deals with protection related to the exercise or non-exercise of a workplace right. The Relevant Legislation [9] 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.” Whether to allow a further period for the application to be made [10] 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 [11] Mr Parmenter contended that he was not advised that he had been dismissed during the meeting of 13 July 2015 with Mr Stewart, submitting that he only heard about his dismissal at some later date via the “grapevine”. With regard to the meeting of 13 July 2015, Mr Parmenter submitted that Mr Stewart had suggested that they let things settle for a couple of weeks and that he would contact Mr Parmenter. However, when Mr Stewart did not call, Mr Parmenter tried to contact him to no avail. [12] The Respondent submitted that it convened the meeting of 13 July 2015 to discuss Mr Parmenter’s performance and that it was made quite clear at that meeting that Mr Parmenter had been dismissed and that he would be given no more shifts. The Respondent also referred to a Facebook page post in which Mr Parmenter stated that he was looking for work to support its claim that Mr Parmenter was aware that he had been dismissed, adding that it also had copies of emails and text messages to support its contention that Mr Parmenter was aware that he had been dismissed at the 13 July 2015 meeting. I note that neither a copy of the Facebook page post or the emails and messages referred to above were put before the Commission. [13] At the telephone hearing Mr Parmenter agreed that performance issues were raised at the 13 July 2015 meeting and that the Respondent had previously had a number of discussions with him regarding his performance. That acknowledgement gives weight to the Respondent’s outline of the meeting of 13 July 2015 and supports a finding that Mr Parmenter was advised that he had been dismissed at that meeting. [14] Against that background, I am not satisfied that the reason for delay relied upon by Mr Parmenter is made out. As such, that reason does not point to the existence of exceptional circumstances. (b) Any action taken by the person to dispute the dismissal [15] As previously mentioned, Mr Parmenter contended that he sought to contact the Respondent when he had not heard from it for a couple of weeks after the 13 July 2015 meeting. Mr Parmenter did not point to any other contact he made with the Respondent prior to lodging his application. [16] The Respondent indicated at the telephone hearing that it had offered to assist Mr Parmenter work through some personal issues with shopkeepers at the shopping centre at which he worked but did not refer to contact by Mr Parmenter to dispute his dismissal. [17] There is no material before the Commission indicating that Mr Parmenter took any steps to dispute his dismissal prior to lodging his general protections application. This does not point to the existence of exceptional circumstances. (c) Prejudice to the employer (including prejudice caused by the delay) [18] Neither party directly addressed this factor in their submissions, though the Respondent referred to “some chatter around town” that Mr Parmenter was taking an unfair dismissal action. In those circumstances, I consider this factor to be a neutral consideration. (d) The merits of the application [19] At the telephone hearing Mr Parmenter reiterated his contention that he had been dismissed because he inquired about his superannuation. In response to questions from the Commission, Mr Parmenter not only acknowledged that the Respondent had discussed its concerns regarding his performance with him on a number of occasions but also that the Respondent had asked him to complete a number of superannuation forms, contending that he had been unable to do so as his computer printer was under repair. [20] The Respondent submitted that Mr Parmenter had been dismissed solely on performance grounds, adding that the meeting of 13 July 2015 was the third meeting over a 12 month period where it had raised concerns about Mr Parmenter’s performance. The Respondent further submitted that it had for some time been asking Mr Parmenter to complete paperwork related to superannuation but that he had yet to do so. [21] Mr Parmenter’s acknowledgement that the Respondent had raised concerns about his performance with him on a number of occasions and that it had also asked him to complete a number of superannuation forms supports a finding that Mr Parmenter was dismissed on performance grounds. Further, Mr Parmenter’s argument that he was dismissed because he enquired about his superannuation is difficult to sustain in circumstances where he acknowledged at the telephone hearing that he was yet to complete the relevant paperwork as requested by the Respondent. As such, the merits of Mr Parmenter’s application do not appear to be particularly strong. This does not point to the existence of exceptional circumstances. (e) Fairness as between the person and other persons in a like position [22] Neither party directly addressed this factor in their submissions, though the Respondent submitted that it considered that it had been more than fair to Mr Parmenter. [23] Against that background, I consider this factor to be a neutral consideration. Conclusion [24] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 1 (Nulty) in the following way: “[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.” [25] Having considered all of the factors set out in s.366(2) and drawing on Nulty , 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). [26] Accordingly, Mr Parmenter’s application will be dismissed. An order to that effect will be issued with this decision. Appearances : A. Parmenter on his own behalf. R. Stewart for the Respondent. Hearing details: 2015. Melbourne and Casino (telephone hearing): November 2. 1 [2011] FWAFB 975 Printed by authority of the Commonwealth Government Printer <Price code C, PR577739>