Andrew Colledge v Omni Executive Pty Ltd

[2017] FWC 2313

[2017] FWC 2313

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Andrew Colledge
v
Omni Executive Pty Ltd
(C2017/871)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 27 APRIL 2017

Application to deal with contraventions involving dismissal.

[1] On 15 February 2017 Mr Andrew Colledge (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 Omni Executive Pty Ltd (the Respondent).

[2] The Applicant commenced employment with the Respondent on 1 July 2014. He was employed as a pilot initially in Sydney and then in Perth. He says that he was dismissed on 25 August 2016 and the dismissal took effect on that day.

[3] The application was lodged some five months, 152 days, out of time.

Alleged Contravention

[4] The Applicant says that he was forced to resign to protect his employment prospects. On 25 August 2016, the Applicant returned to work after illness and was faced with allegations of misconduct and poor performance. He says that the real reason for these allegations was that he had complained to management about bullying and harassment by another pilot, Mr Livingstone. Accordingly, the Applicant was prevented from making further complaints, including to Civil Aviation Safety Authority, Worksafe and others. Private text messages were utilised to support allegations of misconduct by the Respondent.

[5] The Applicant also alleged that he was disadvantaged because the Respondent did not reveal that he was covered by the Air Pilots Award 2010 [MA000046].

[6] Breaches of ss.340, 343 and 352 are alleged.

Respondent’s Submissions

[7] The Respondent denies these allegations and further denies that there has been a breach of the General Protections provisions of the Act.

[8] The Respondent states that the Applicant resigned and was not dismissed. The Respondent does concede that it did suspend the Applicant and threaten to dismiss him but says that this was because of his inappropriate text messages which criticised the Respondent and other employees. The Respondent further denies that there was any bullying or harassment or breach of any occupational Health and Safety legislation.

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.”

Approach of the Commission

[10] The considerations relevant to the assessment of whether exceptional circumstances 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) 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.”

[11] 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]197 IR 403).

[12] 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

[13] On 29 March 2017, 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 11 April 2017.

[14] The Applicant was represented by Mr J. Bryson counsel and Mr P. Ellis, solicitor. The Respondent was represented by Mr J. Wilson, solicitor. Both were granted permission to appear pursuant to s.596 of the Act.

Matters to be taken into account pursuant to s.366(2)

[15] 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

[16] The Applicant referred to the stress on himself and his wife arising from the dismissal. He also referred to the illness of his child.

[17] However, the main reason relied on for the very long delay in lodging was legal representative error. He says that he tried to contact many firms without success. He did have an appointment with an experienced industrial advisor in Perth but was advised that he had no claim. Ultimately, he contacted Mr Bryson who was a family friend in Sydney. Correspondence was sent to the Respondent in late November. The General Protections application was lodged following advice from an experienced industrial barrister in Mr Bryson’s chambers.

[18] I note that Mr Wilson, on behalf of the Respondent, replied to Mr Bryson on 7 December 2016 outlining the Respondent’s defence.

[19] The Commission’s approach to legal representative error is contained in the following cases:

[20] The Applicant referred to Clark v Ringwood Private Hospital (1997) IR 413; Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347 (Robinson); Schmidt v Boral Fused Materials Pty Ltd[2016] FWC 2575; Staymar v UAM Pty Ltd[2016] FWC 1477 and Diotti v Lenswood Cold Stores Co-Op Society[2015] FWC 7659 (Diotti). I have already referred to the Full Bench appeal from the Diotti decision.

[21] The Full Bench decision in Robinson summarised the overall approach to representative error as follows:

“[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.

[25] The approach in Clark’s Case was summarised in Davidson’s Case as follows:
“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”

[22] It then concluded that an applicant was entitled to rely on its legal representative to properly lodge an application:

“[30] Mr Robinson arranged legal advice three days after the termination of his employment. At that time Mr Robinson requested that Mr Tayler prepare a client agreement for his consideration and upon receiving the agreement, he executed the agreement on 13 May 2010, within a week of its receipt. On the day he executed the agreement, Mr Robinson instructed Mr Tayler to file a general protections application on his behalf. It is unsurprising that Mr Robinson, having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative’s requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of providing clear instructions to Mr Tayler to lodge his application.”

[23] In Diotti Senior Deputy President O’Callaghan concluded that the Applicant did nothing to challenge her dismissal for 17 days and then contacted her union. He went on as follows:

“[14] The long standing approach of the Commission is that representative error may represent an acceptable reason for the delay and, hence in terms of the current legislative requirement, an exceptional circumstance. That approach is founded on the principle that, if an applicant did not contribute to a delay caused by his or her representative, it would not be fair to hold that error against the applicant. There is no coherent explanation for the delay, of some 17 days before Ms Diotti indicated concern to her union relative to the termination of her employment. In these circumstances, I am not satisfied that Ms Diotti’s circumstances mean that the relatively minimal effect of that representative error favour a finding of an exceptional circumstance and hence, an extension of time. Whilst I have accepted an element of representative error associated with Mr Blewett’s inaction in processing the matter between 19 October 2015 and 22 October 2015, any such representative error is not, of itself, a basis for an extension of time. Appropriate account must be taken of the overall circumstances and the conduct of the applicant. Consequently, all of the actions, or in this case, lack of action on the part of Ms Diotti are central to the question of whether there is an acceptable reason for the delay. The circumstances here are simply not properly characterised as fairly explaining the delay on the basis of representative error. The delay here was fundamentally caused by lack of action on the part of Ms Diotti even though she was aware of the 21 day time limit. She simply left it too late to request the assistance of her union.

[15]I have noted that United Voice took action on 16 October 2015, shortly after Ms Diotti advised of the concerns she had about the termination of her employment, so as to seek an explanation for this dismissal. Whilst this represents an alternative form of action to the lodgement of this application, Ms Diotti’s delay in bringing the matter to the attention of United Voice was of her own making.

[16]I am not satisfied that the granting of an extension of time represents prejudice to the respondent in this matter but this, of itself, cannot represent a basis for an extension of time.”

[24] The Full Bench decision quoted above did not disturb this conclusion.

[25] Most recently the Full Bench in Todd Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 concluded:

“[30] There seems little doubt, based on the Appellant’s evidence before us, that the delay during the period between 27 October 2015 and the date on which the application was ultimately lodged was occasioned by representative error. In and of itself representative error will not provide an acceptable explanation for a delay. A person relying upon representative error must also show that the person was blameless and did not by act or omission cause or contribute to the error.

[31] On the evidence it seems clear to us that the Appellant acted promptly in engaging solicitors. He provided the solicitors with all relevant documents, including the letter of 26 October 2015, promptly. He received advice from his solicitors that the time for making the application, the subject of this appeal, commenced to run from 26 October 2015 and having received legal advice acted in accordance with that advice. There is nothing in the evidence suggesting that by his actions or through his omission the Appellant contributed to the error. In the circumstances, we are satisfied that the Appellant was blameless for the representative error made by his solicitors, namely in furnishing the Appellant with advice that the date from which time is to be reckoned for the purposes of making his application was from 26 October 2015. We are satisfied that the error identified caused the delay and explains entirely the period of delay between 27 October 2015 and the day on which the application was lodged.”

[26] Applying the principles in these cases, I am not satisfied that representative error can excuse or justify the very extensive delay in lodging.

[27] There is no evidence from the Perth industrial advisor so I do not know what advice was given and on what basis. The Applicant cannot be considered blameless. Months went by before correspondence was sent by Mr Bryson to the Respondent. Ignorance of the relevant law and the time limit by an Applicant or their legal representative cannot be considered as exceptional circumstances.

[28] This not a case whether a clear instruction were given by the Applicant to a legal representative to lodge an application but there was a failure to do so. The Applicant simply did not take the course which was open to him, that is, lodge the s.365 application, for five months, it appears because he thought that a breach of contract claim would lead to a better result.

[29] Accordingly, the reason for delay does not tend to indicate exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[30] The Applicant did not take any action to contest the dismissal until over 70 days after the date for lodgement. Mr Bryson sent a letter to the Respondent.

[31] This does not weigh in favour of the establishment of exceptional circumstances.

(c) Prejudice to the employer (including prejudice caused by the delay)

[32] Given the overall facts, the Respondent would be prejudiced by the time and costs involved in further litigation.

(d) Merits of the application

[33] The Applicant would need to get over the hurdle of establishing that he was dismissed rather than resigning of his own free will. He may be able to show that this was a constructive dismissal because it appears that he was told that he should resign or he would be dismissed.

[34] In addition, however, the Respondent argues that the operative reason for the alleged dismissal was the Applicant’s misconduct in sending the inappropriate text messages. The Applicant says that the Respondent’s failure to establish a safe workplace and deal with his complaints forced him to resign. There appears to be a number of unsatisfactory aspects of the workplace culture but the workplace rights of the Applicant, which are said to have been infringed, are not easy to discern.

[35] Given all of the circumstances, 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

[36] This factor was not addressed and has not been taken into account.

Conclusion and Order

[37] 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 Andrew Colledge under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

H, Bryson of counsel with P. Ellis, solicitor for the Applicant.

J. Wilson, solicitor for the Respondent.

Hearing details:

2017

Telephone hearing:

April 11.

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