Allan Wright v Asciano Services Pty Ltd T/A Pacific National Bulk

[2015] FWC 7599

[2015] FWC 7599 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Allan Wright
v
Asciano Services Pty Ltd T/A Pacific National Bulk
(U2015/11728)

COMMISSIONER JOHNS MELBOURNE, 18 NOVEMBER 2015

Application for relief from unfair dismissal - whether to extend time for lodging the application.

[1] On 17 November 2015 the Fair Work Commission (Commission) conducted a jurisdictional hearing about an extension of time application made by Mr Allan Wright. At the conclusion of those proceedings the Commission, as presently constituted, refused the application and dismissed the applicant’s unfair dismissal application. These are the reasons for that decision.

[2] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for lodgement in exceptional circumstances.2

[3] Mr Wright (applicant) made an application for a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged on 9 September 2015, that being 54 days after his employment was terminated by Asciano Services Pty Ltd (respondent) on 17 July 2015.

The jurisdictional objection

[4] On 23 September 2015 the Commission issued directions for the parties to provide submissions and witness statements in relation to the jurisdictional objection.

[5] On 8 October 2015 the applicant’s representative, the Australian Rail, Tram and Bus Industry Union (“the Union”), filed a submission and witness statement on his behalf. In short in those materials it was asserted on behalf of the applicant that:

a) on 23 July 2015 the applicant filed an application for Unfair Dismissal;

b) on 25 August 2015 the applicant instructed his Union to discontinue the initial application after the applicant applied for another position with the respondent; and

c) on 8 September 2015 the applicant then decided that he wanted his Union to pursue his claim for Unfair Dismissal by lodging a new application (this current application).

[6] On 23 October 2015 the respondent filed its submissions in relation to the applicant’s application for an extension of time. In short, the respondent said:

a) no credible explanation is given by the respondent as to why he changed his mind and, 15 days after withdrawing his unfair dismissal application, decided to lodge a new application; and
b) Mr Wright’s explanation that he withdrew the initial application so as to better his chances of attaining a new casual position with the respondent was vexed because he submitted the second application for relief from unfair dismissal during the period in which the respondent was considering him for a casual position.

[7] Accordingly, the matter proceeded by way of a jurisdictional hearing. The applicant’s representative requested an in person hearing and consequently, further directions were issued for the filing and service of material.

[8] The jurisdictional hearing was heard on Tuesday, 17 November 2015. At the hearing the applicant was represented by the Union’s Freight Organiser – Locomotive Division, Kevin Pryor. The respondent was represented by Elizabeth Ferrier, its General Manager for Industrial Relations. The applicant gave evidence on his own behalf and was cross-examined. The applicant was not made available for cross examination and both Mr Pryor and Ms Ferrier agreed that the Commission should decide the matter based on the material which had already been filed and served.

Legislative scheme

[9] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(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.

[10] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[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.  4

Facts leading up to and relating to the dismissal

[11] On 29 May 2015 the respondent announced that redundancies would be required across each of its Parkes, Cootamundra and Port Kembla Depots.

[12] The applicant was employed at the Parkes Depot.

[13] During a process of consultation with employees and their Union, voluntary redundancies and transfers to other Depots of the respondent designed to mitigate the need for involuntary redundancies were sought by the respondent.

[14] The applicant did not apply for voluntary redundancy nor the available positions at the Moss Vale and Enfield Depots.

[15] Not all of the available positions at the Moss Vale and Enfield Depots of the respondent were filled by the time the consultation period with the Union and employees expired on 14 June 2015.

[16] During the approximately two-week period after being informed of their selection for involuntary redundancy on 3 July 2015 and termination of their employment, there was a further redeployment process made available to the applicant.

[17] The applicant’s employment was terminated on 17 July 2015.

Consideration

Paragraph 394(3)(a) - The reason for the delay

[18] It is undisputable that there were 54 days between when the termination of the applicant’s employment took effect and when this application was filed with the Commission.

[19] The applicant says the reason for the delay were:

a) the applicant did originally apply for unfair dismissal remedy on 23 July 2015;

b) the applicant thought that by discontinuing his application, his chances of returning to his old position would be greater than if he was still applying for unfair dismissal;

c) the applicant then heard that new employees were filling his old position;

d) the applicant then decided to re-apply for an unfair dismissal remedy; and

e) the applicant then received an email stating that he was unsuccessful with his job application.

[20] Mr Wright’s difficulties are not out of the ordinary, unusual or uncommon. It is routinely the case that an employee that has had their employment terminated might make application for new employment. There is no reason why Mr Wright could not pursue his initial unfair dismissal application in circumstances where he truly believed he had been unfairly dismissed. It is perplexing as to why, given Mr Wright’s submission that he withdrew the initial application in order to better his chances of re-employment, that Mr Wright filed his second application for relief from unfair dismissal during the period in which the respondent was considering his application for re-employment.

[21] The 21 day time period for lodging an application for relief from unfair dismissal arises from the date the applicant is dismissed. The 21 day time period is not contingent upon extraneous circumstances relating to the possibility of an applicant’s re-employment with the respondent.

[22] This factor weighed against granting the application a further period to lodge his unfair dismissal application.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[23] It is uncontested that the applicant first became aware of the dismissal on 17 July 2015. While the applicant submitted that he was ‘confused about why [he] was made forced redundant’ I accepted the applicant knew his employed had ceased from 17 July 2015, particularly in circumstances where the applicant re-applied for employment with the respondent.

[24] This factor weighed against granting the application a further period to lodge his unfair dismissal application.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[25] The applicant disputed his dismissal by lodging an application for unfair dismissal remedy on 23 July 2015. That Application for relief from unfair dismissal was subsequently discontinued by the applicant of his own free will.

[26] The applicant did not identify any other action taken to dispute the dismissal besides the filing of a second application for relief from unfair dismissal on 9 September 2015.

[27] This factor weighed against granting the application a further period to lodge his unfair dismissal application.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[28] The Union submitted that there is no prejudice to the respondent, on the basis that Asciano Services has ‘an extensive human resources department and legal department at their disposal.’

[29] The respondent submitted that extending the timeframe for lodgement would be prejudicial to the respondent. In particular, it was submitted that the respondent has recently completed and filed the evidence in related matters arising from the same factual circumstances. The respondent completed this undertaking on the basis of directions issued by the Commission for the determination of those matters. Further, the respondent said should the matters under current consideration be permitted to proceed, the respondent would need to re-visit evidence and submissions, causing unnecessary additional costs by having to meet with witnesses again and take further evidence. The respondent also notes that a mere absence of prejudice is not sufficient to justify time being extended.

[30] For present purposes, I treated any prejudice to the employer as a neutral factor.

Paragraph 394(3)(e) - The merits of the application

[31] In the matter of Kornicki v Telstra-Network Technology Group 5the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 6

[32] The Commission, as presently constituted, adopted this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[33] The substantive factual contest between the applicant and the respondent is whether Mr Wright’s dismissal was a case of genuine redundancy. This is not a factual dispute that can be resolved at a jurisdictional hearing.

[34] It is an accepted practice in jurisdictional hearings that the Commission not embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[35] For present purposes the Commission, as presently constituted, is satisfied that the applicant’s case is not one that is without merit or lacking in any substance.

[36] If the applicant can establish to the satisfaction of the Commission that his dismissal was not a case of genuine redundancy then he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the applicant’s employment was harsh, unjust or unreasonable.

[37] Because the applicant’s case is not without merit or lacking in any substance this factor weighed in favour of granting him a further period to make his application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[38] This matter was commenced in the context of a number of other applications brought by other former employees of the respondent. All of those other former employees commenced their applications and kept them on foot. They did not decide, as the applicant did in this matter to discontinue and re-lodge their applications.

[39] In circumstances where the applicant discontinued his first application of his own free will, there was no issue of fairness in relation to any other person in a similar position.

Conclusion

[40] For the reasons set out above, on balance, the Commission as presently constituted, in the exercise of its discretion was not satisfied that there are not exceptional circumstances warranting the applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application). An Order to this effect was issued on 17 November 2015.

COMMISSIONER

 1 Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) FW Act.

 3 [2011] 203 IR 1

 4 Above note at [13].

 5   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 6   Ibid.

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