Abraham Jacobus Coetzee v Regional Power Corporation T/A Horizon Power Corporation
[2015] FWCFB 1208
•19 FEBRUARY 2015
| [2015] FWCFB 1208 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Regional Power Corporation T/A Horizon Power Corporation
(C2014/6786)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 19 FEBRUARY 2015 |
Appeal against decision [[2014] FWC 6361] of Deputy President McCarthy at Perth on 24 September 2014 in matter number U2014/8107 - extension of time- requirement for a hearing - natural justice considerations - utility of appeal.
[1] This decision concerns an appeal lodged by Mr Coetzee against a decision 1 and order2 made by Deputy President McCarthy on 24 September 2014. In that decision, the Deputy President refused to extend the time for the lodgement of Mr Coetzee’s unfair dismissal application with respect to the termination of his employment with Regional Power Corporation T/A Horizon Power (Horizon), and consequently dismissed that application.
[2] In these appeal proceedings, Mr Coetzee was represented by Mr Mullally, as agent, and Horizon, by Mr Hammond, of counsel. Grants of permission were made in each instance pursuant to s.596(2)(a) of the Fair Work Act 2009 (the FW Act).
The Background
[3] Mr Coetzee’s unfair dismissal application was lodged on 30 June 2014. In that application Mr Coetzee advised that the termination of his employment took effect on 20 February 2014. As a consequence, the application was made some four months outside of the 21 day time period specified in s.394(2).
[4] Section 394 relevantly states:
“394 Application for unfair dismissal remedy
....
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[5] In his decision, the Deputy President recited Mr Coetzee’s explanation for the delay detailed in his application:
- “[2] The reason for the delay and reasons why the Fair Work Commission (FWC) should accept the Application out of time were stated in the Application as follows:
“1. When the dismissal took effect I went online and checked the WA State Government’s legal assistance site and was directed to the WAIRC [Western Australian Industrial Relations Commission].
2. I was in email contact with registry staff at the WAIRC on the 10th March 2014 and lodged an application B61 of 2014 on the 17th March 2014 which I thought was for an unfair dismissal case.
3. The matter came before Commissioner Kenner of the WAIRC on the 17th June 2014 and he explained that I was in the wrong jurisdiction and allowed me to discontinue that application and an order issued that day.
4. Since then I have tried to contact lawyers to assist with my case.
5. I was eventually able to contact Workclaims Australia on Friday the 27th June 2014. After receiving advice I instructed that firm to issue this application which it did on the following Monday the 30th June 2014.
6. I disputed the dismissal at the time it occurred and made that clear in my application to the WAIRC.
7. I am out of time because of the advice I received from the registry staff at the WAIRC who thought that as the respondent was effectively a state government entity, the correct jurisdiction was the WAIRC. However that turned out to be an error.
8. These circumstances constitute exceptional circumstances.”
[6] The Deputy President wrote to Mr Coetzee and set out the factors in s.394(3) which he proposed to take into account. He invited the provision of information relative to these and any other factor considered relevant to whether Mr Coetzee's circumstances were exceptional. We have had particular regard to Mr Coetzee's submissions relative to the reasons for the delay. These stated:
“1. The applicant’s unfair dismissal application was filed out of time in the Fair Work Commission because he originally submitted an application in the in the wrong jurisdiction. The applicant submitted an application to the Western Australian Industrial Relations Commission, unaware that this Tribunal was not able to determine his claim.
2. The reason he contacted the WAIRC was that he identified his employer as the state government as he thought that Horizon Power was simply part of the WA Government structure. When he contacted the WAIRC, staff there sent the forms for that jurisdiction, when he completed, filed and served.” 3
[7] Attached to those submissions was the application made by Coetzee in the WAIRC.
[8] The Deputy President then provided those submissions to Horizon and invited submissions in reply. The Horizon submissions were significantly more comprehensive. Horizon did not dispute that Mr Coetzee took an action in the WAIRC but contended that the action which was pursued in the WAIRC was a claim of denial of a contractual benefit. Horizon asserted that Mr Coetzee had not substantiated his claim that he was given incorrect advice by the WAIRC. Horizon provided a copy of its response to Mr Coetzee's WAIRC application, posted to him on 24 April 2014. In that response Horizon put Mr Coetzee on notice that, had he filed an unfair dismissal claim, it operated under the FW Act. Furthermore Horizon asserted that Mr Coetzee was advised by Commissioner Kenner of the WAIRC on 17 June 2014 that he should have filed an unfair dismissal claim in the FWC but Mr Coetzee did not lodge this claim until 30 June 2014, 13 days later. It is clear from the Deputy President's decision that he took the material provided to him into account in reaching his decision.
[9] In his decision, the Deputy President stated:
- “[5] As it was unclear to me what actions the Applicant had taken in the WAIRC I examined the file of the WAIRC. The file reveals the following:
● It appears from the file that the Applicant lodged both a Form 2 –Unfair Dismissal Application and a Form 3 – Contractual Benefit Application on 17 March 2014. There are two stamped applications on the file.
● There is a file note for the same day stating that someone from the WAIRC called the Applicant in relation to the Unfair Dismissal Application and the remedy he was seeking, which was a claim for allowances. The WAIRC explained to the Applicant the procedures for filing a Contractual Benefit Application and advised the Applicant that he was not covered by an Agreement, but was covered under a contract. The Applicant advised the WAIRC that he did not wish to proceed with the Unfair Dismissal Application, but instead wanted to proceed with the Contractual Benefit Application.
● The WAIRC confirmed in the file note that the Contractual Benefits Application had been received, the filing fee had been paid and a stamped copy of the Application and the information packs in relation to service had been provided to the Applicant. The file note also indicates that the Unfair Dismissal Application had been placed on the file for the Contractual Benefits Application as the Applicant was not proceeding with it.” 4
[10] The Deputy President addressed the reasons for the delay in the following terms:
“[6] The reason proffered by the Applicant for the delay was that he unknowingly lodged an unfair dismissal application in the WAIRC rather than the FWC. I consider this explanation is disingenuous. The Applicant appears to have lodged an unfair dismissal claim in the WAIRC but almost immediately decided not to proceed with it. Whilst some of the information provided to the Applicant by the WAIRC Officer might have been incorrect (for example that he was covered by an agreement) it appears that the Applicant was aware that he abandoned his unfair dismissal application and made not further endeavours to dispute his dismissal until after the WAIRC conference in June.
[7] It was pointed out to the Applicant in the Respondent’s Answer to the WAIRC application that his employment was governed by two FWC instruments and that if he was intending to pursue an unfair dismissal claim then it should have been lodged in the FWC. Having apparently decided not to proceed with his unfair dismissal claim in the WAIRC the Applicant took no action in the FWC until this Application was lodged. There is no explanation of the delay between the Respondent informing him on 24 April 2014 that the FWC was the correct jurisdiction for any unfair dismissal claim he may wish to pursue. It does not appear the Applicant took any action between 24 April 2014 and the WAIRC conference on 17 June 2014.
[8] It is clear that the Applicant was on notice from 24 April 2014 that if he was pursuing an unfair dismissal claim then it was outside the jurisdiction of the WAIRC and within the jurisdiction of the FWC. Despite this the Applicant for whatever reason did not lodge the Application in the FWC until after a conference had been held in the WAIRC on 17 June 2014. I do not accept that there was any reasonable reason for the delay and certainly not one that could weigh in favour of a finding of the existence of exceptional circumstance.” 5
[11] The Deputy President noted that there was no dispute that Mr Coetzee was aware of the termination of his employment on the day on which it took effect. He concluded 6 that an extension of time would prejudice Horizon. The Deputy President assessed the merits of the application. The Deputy President then concluded that considerations of fairness relative to other persons in similar circumstances did not favour an extension of time.
[12] Having found that exceptional circumstances did not exist, the Deputy President refused to extend the time for lodgement and dismissed the application.
The Appeal
[13] Mr Coetzee’s appeal is based on two grounds. Firstly, he asserts that the Deputy President failed to conduct a hearing consistent with the requirements of s.397 in a circumstance where the relevant facts were contested. Secondly, Mr Coetzee asserts that the Deputy President’s actions in reviewing the WAIRC file without providing the opportunity for submissions or comment upon that file involved a denial of natural justice.
[14] The appeal is made pursuant to s.604. Whilst that section applies to appeals generally, its operation with respect to unfair dismissal appeals is substantially limited by s.400 which states:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[15] We have considered Mr Coetzee’s appeal in this context.
Findings
[16] Section 397 states:
“397 Matters involving contested facts
The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.”
[17] We think there is a difference between a circumstance where there is clearly a contested issue of fact and a circumstance where the assertions put by one party are so deficient that the provision of additional material by another party then allows the Commission to reach a conclusion. In this case the Deputy President did not make a finding which challenged Mr Coetzee’s submission that he had made an application to the WAIRC. He simply found that the circumstances of that application did not represent an acceptable reason for the very long delay.
[18] Notwithstanding this conclusion, we have considered Mr Coetzee’s submissions about the operation of s.397. The scheme of the FW Act is significant in this respect. Section 381 sets out the objects of Part 3-2-to which deals with unfair dismissal, in the following terms:
“381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”
[19] Division 2 of Part 3-2 establishes when a person is protected from unfair dismissal and Division 3 deals with what is an unfair dismissal. Division 5 deals with procedural matters associated with unfair dismissal applications. Section 396 requires that the Commission decides specified initial matters before considering the merits of an application. Sections 398 and 399 deal with the conduct of conferences and hearings. Section 399 is expressed in the following terms:
“399 Hearings
(1) The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account:
(a) the views of the parties to the matter; and
(b) whether a hearing would be the most effective and efficient way to resolve the matter.
(2) If the FWC holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.
(3) The FWC may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.”
[20] Contrary to the submissions put to us by Horizon, we do not think that a great deal of assistance relative to s.397 can be derived from the Explanatory Memorandum. We think that the plain words of this section mean that it has application to all of the matters to be determined pursuant to Part 3-2. The requirement to hold a conference or a hearing must arise only where the particular matter to be determined by the Commission involves issues of contested facts. It would make no sense at all for this section to be applied so as to require a conference or hearing relative to all contested issues, irrespective of whether those issues need to be finally determined in the particular matter being considered by the Commission.
[21] The onus to establish that exceptional circumstances warranted an extension of time rested on Mr Coetzee. We have concluded that the submissions and material provided with respect to the reason for the delay were inherently deficient. We are not satisfied that s.397 required the Deputy President to conduct a conference or a hearing in these circumstances. We consider that his conclusions about the reasons for the delay were open to him on the material provided to him and did not represent findings about disputed facts with respect to Mr Coetzee’s assertions about the reasons for the delay. The Deputy President did not dispute that Mr Coetzee lodged an unfair dismissal claim in the WAIRC. He referred to the advice provided to Mr Coetzee by Horizon on 24 April 2014 about the correct jurisdiction for an unfair dismissal claim and to the proceedings in the WAIRC on 17 June 2014. Simply put, the Deputy President was not satisfied that Mr Coetzee met the obligation to establish that he had an acceptable reason that represented extraordinary circumstances so as to explain the very substantial delay.
[22] Having reviewed the material before the Deputy President for ourselves we additionally note that Mr Coetzee lodged his application in the WAIRC outside of the 21 day time limit set in the FW Act and do not consider that a coherent reason for that delay was put to the Deputy President. Additionally, we do not accept what appears to be Mr Coetzee's contention that, once his application was dismissed by the WAIRC, he had time envisaged by s.394(2) in which to pursue this application. Having considered the submissions put to the Deputy President we think he was entitled to reach his conclusions about the reasons for the delay on the material put to him by the parties and that the deficiencies in the material provided by Mr Coetzee meant that this conclusion did not require a finding on the asserted facts. Indeed, our assessment of the submissions and material provided by Mr Coetzee is that extraordinary circumstances in terms of the reasons for the delay have not been established so as to warrant an extension of time.
[23] Mr Coetzee also contends that the Deputy President's findings about the merits of his application incorporated findings about contested issues of fact. The Deputy President addressed the merits of the application in the following terms:
“[11] This does not appear to me to be a case with any likely prospects of succeeding. The Applicant was employed on a fixed term contract the term of which was due to expire on 31 March 2014. The fixed term contract contained an early termination clause which the Respondent invoked on 20 February 2014. He was paid four weeks in lieu of notice. As an aside even if the Applicant were successful in his claim for unfair dismissal a likely outcome would be payment of remuneration between 20 February 2014 and 31 March 2014 less four weeks pay. Furthermore, the Respondent appears to have strong grounds in support of their contention that the dismissal was a case of genuine redundancy. The merits of the Application weigh against a finding of an exceptional circumstance. 7
[24] We do not think this conclusion represents findings about disputed facts in a manner inconsistent with s.397. In his application, Mr Coetzee sought compensation rather than reinstatement. We think the Deputy President's conclusions were open to him on the material provided by the parties and simply reflected his assessment of the chances of successful pursuit of the application. We note that the Deputy President did not find that the application lacked any merit but simply that the merits weighed against an extension of time. That conclusion was open to him.
[25] We have considered the second ground for the appeal in the context of the obligation for the Commission to ensure natural justice considerations. That obligation is well established and is consistent with s.577 which states:
“577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).”
[26] Section 590 states:
“590 Powers of the FWC to inform itself
(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
(a) by requiring a person to attend before the FWC;
(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);
(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;
(f) by conducting inquiries;
(g) by undertaking or commissioning research;
(h) by conducting a conference (see section 592);
(i) by holding a hearing (see section 593).”
[27] The Deputy President was clearly entitled to research the WAIRC file to clarify matters about which he was unsure. As a general rule, where research of that nature was then being relied on this would necessitate that an opportunity be provided to the parties to consider issues of that nature through further submissions, or a conference or hearing. However, in Mr Coetzee’s specific circumstances, where he had been provided with the opportunity for submissions to support his requested extension of time, and those submissions could only be described as seriously deficient, and the parties submissions included material which supported the Deputy President's conclusions, we are not satisfied that the absence of that opportunity represent an error of a type which then activates the public interest considerations in s.400. Had it been the case that the conclusions reached by the Deputy President were solely reliant on the research he had undertaken into the WAIRC records, we would have adopted a different conclusion.
[28] On our own consideration of on the material put to the Deputy President, Mr Coetzee has not demonstrated exceptional circumstances consistent with the criteria in s.394(3) that would permit or underpin an extension of time. In that context we see little utility in the appeal in any event.
[29] Accordingly, we are not satisfied that error of a House and The King type has been established, or that the public interest considerations in s.400 are met. The appeal is dismissed on this basis.
Appearances:
P Mullally agent for the appellant.
T Hammond counsel for the respondent.
Hearing details:
2015.
Perth:
January 13.
1 [2014] FWC 6361
2 PR555379
3 Appeal Book, page 28, paras 1 and 2
4 [2014] FWC 6361, para [5]
5 [2014] FWC 6361, para [6] - [8]
6 [2014] FWC 6361, para [10]
7 [2014] FWC 6361, para [11]
Printed by authority of the Commonwealth Government Printer
<Price code C, PR561235>
1
1
0