Higelin v Anglican Retirement Villages Diocese of Sydney [2016] FWC 1514 (9 March 2016) [2016] FWC 1514 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.365 —General protections Axel Higelin v Anglican Retirement Villages Diocese of Sydney T/A Anglican Retirement Villages (C2016/2231) DEPUTY PRESIDENT KOVACIC CANBERRA, 9 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 Axel Higelin (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 13 January 2016 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Anglican Retirement Villages Diocese of Sydney T/A Anglican Retirement Villages (ARV – the Respondent) on 18 December 2015 in contravention of the general protections provisions in the Act. [2] As the application had been lodged five days outside the statutory timeframe for lodgement, the Commission issued Directions on 28 January 2016 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 8 March 2015. At the telephone hearing, Mr Higelin appeared on his own behalf, while Mr Matthew Bond appeared for ARV. [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] Mr Higelin commenced employment with ARV as an Occupational Therapist on 23 November 2015, though prior to that he had been working full time as a contractor at Elizabeth Lodge, one of the Anglican Retirement Villages, since 9 June 2015. [6] Mr Higelin was effectively stood down when he was placed on paid leave on 14 December 2015 following allegations of inappropriate behaviour towards another staff member and pending an investigation of those allegations. On 16 December 2015, ARV wrote to Mr Higelin setting out a number of allegations and inviting him to attend a meeting on 18 December 2015 to respond to the allegations. Mr Higelin acknowledged that he was advised of his dismissal on 18 December 2015 but contended that he had been told that his dismissal was because he “did not fit in with ARV’s Christian values.” Mr Higelin was advised that he could bring a support person to that meeting. [7] Mr Higelin was dismissed following that meeting, with his dismissal taking effect immediately. ARV submitted that Mr Higelin was verbally advised of the reasons for his dismissal on 18 December 2015 and that it wrote to Mr Higelin on 4 January 2016 (by Express Post) confirming the decision to terminate his employment. Mr Higelin received that letter on 6 January 2016. [8] In other developments, Mr Higelin’s solicitors wrote to ARV on 24 December 2015 foreshadowing a general protections application and proposed a settlement to resolve the dispute. [9] As previously noted, Mr Higelin’s general protections application was received by the Commission on 13 January 2016, five days outside the 21-day statutory timeframe for lodgement specified in s.366(1)(a) of the Act. In his application, Mr Higelin alleges that he was dismissed in contravention of s.340 of the Act which deals with protection concerning the exercise or otherwise of a workplace right. The Relevant Legislation [10] 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 [11] 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 [12] Mr Higelin stated in his application that the reason for the delay was that he was waiting for formal written communication from ARV outlining the reasons for his dismissal, adding that he did not receive that letter until 6 January 2016 which only gave him two days to lodge his application. Mr Higelin further submitted that as English was not his first language it took him some time to understand the law and requirements for an application and to prepare his application. At the telephone hearing, Mr Higelin contended that his dismissal had triggered depression and that he had found it difficult to function since his dismissal. Also at the hearing, Mr Higelin, in response to a question from the Commission, stated that he did not commence preparing his general protections application until after he had received the termination letter on 6 January 2016 as it was only after he had received that letter that he had some sense of what was required. [13] ARV submitted that Mr Higelin had been verbally informed at the conclusion of the meeting on 18 December 2015 that he had been dismissed and the reasons for his dismissal. At the telephone hearing, ARV reiterated that Mr Higelin had been advised of the reasons for his dismissal on 18 December 2015 and disputed that he had been told that his dismissal was because he “did not fit in with ARV’s Christian values.” ARV also acknowledged that the delay in providing the termination letter to Mr Higelin was not ideal. [14] As mentioned above, Mr Higelin’s solicitors wrote to ARV on 24 December 2015. Among other things that letter stated that “No grounds for the termination of Mr Higelin by Anglican Retirement Villages have been formally conveyed to Mr Higelin” (underlining added). Further, I note that Mr Higelin’s solicitors foreshadowed a general protections application in that correspondence, suggesting that Mr Higelin would have been provided with advice at to the basis of any such application. While it is disputed as to whether or not Mr Higelin was advised of the reasons for his dismissal on 18 December 2015, I am inclined to the view that Mr Higelin was advised. In those circumstances, it is not clear why Mr Higelin could not have commenced the research and preparation of his general protections application prior to receiving the termination letter on 6 January 2016. [15] The above analysis does not point to the existence of exceptional circumstances. (b) Any action taken by the person to dispute the dismissal [16] It was not disputed that Mr Higelin’s solicitors wrote to ARV on 24 December 2015 foreshadowing a general protections application and proposing a basis for resolving the dispute. However, I note that the letter was sent shortly after Mr Higelin’s dismissal and well inside the 21 day timeframe, leaving sufficient time for him to lodge a general protections application within time. I therefore consider this factor to be a neutral consideration. (c) Prejudice to the employer (including prejudice caused by the delay) [17] Neither party directly addressed this factor in their submissions, though ARV submitted that were an extension of time granted it may be required to engage external legal assistance to defend the matter and as a result have to divert resources which could otherwise be put towards its core business of caring for the elderly. [18] Against that background, I consider this factor to be a neutral consideration. (d) The merits of the application [19] Mr Higelin submitted that part of his general protections under the Act included the right to be given a warning prior to dismissal, adding that no warning was provided by ARV in the course of his employment. Mr Higelin also submitted that it was his workplace right to ensure that his job was not changed to his disadvantage and cited as a further contravention of the Act that he had not been provided with a Separation Certificate. [20] ARV submitted that there was no connection between the action taken by it in dismissing Mr Higelin and Mr Higelin either having or having exercised a workplace right under s.340 of the Act. ARV further submitted that it was not clear how it had contravened either a workplace right under s.341 or the protections in ss.346 or 351 of the Act. [21] Mr Higelin was unable to point to any link between a workplace right that he had or had not exercised and his dismissal. In those circumstances, the merits of his application do not appear particularly compelling. This does not point to the existence of exceptional circumstances. (e) Fairness as between the person and other persons in a like position [22] Mr Higelin pointed to, among other things, the practical difficulty of obtaining legal advice in the lead up to and over the Christmas/New Year period. [23] ARV reiterated that Mr Higelin had been verbally advised on 18 December 2015 that his employment was terminated and provided reasons for that decision, adding that the correspondence from Mr Higelin’s solicitors indicated that he understood that his employment had been terminated on 18 December 2015. More specifically, ARV contended that Mr Higelin had significant opportunity to submit his general protections application from 18 December 2015. [24] As neither party directly addressed this factor in their submissions, I consider it to be a neutral consideration. Conclusion [25] 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.” [26] 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). [27] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision. Appearances : A. Higelin on his own behalf. M. Bond for the Respondent. Hearing details: 2016. Canberra and Sydney (telephone hearing): March 8. 1 [2011] FWAFB 975 Printed by authority of the Commonwealth Government Printer <Price code C, PR577826>