Brad Mather v Seeley International Pty Ltd

[2014] FWC 3650

[2014] FWC 3650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brad Mather
v
Seeley International Pty Ltd
(U2014/5484)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 JUNE 2014

Application for relief from unfair dismissal - extension of time refused - no exceptional circumstances.

[1] Mr Brad Mather was employed by Seeley International Pty Ltd (Seeley) until his employment was terminated on 9 December 2013. He filed his application for an unfair dismissal remedy on 12 March 2014 which was more than 21 days after the date of his dismissal.

Preliminary matters

[2] At the hearing Ms Dowsett of counsel sought permission to appear on behalf of Seeley. Mr Mather who was representing himself submitted that he could not afford legal representation and it would be unfair to permit Seeley to be represented.

[3] Ms Dowsett submitted that the matter involved some complexity given the events leading to the termination of Mr Mather’s employment and the persons who would represent Seeley were witnesses in the matter. It was submitted that permitting legal representation would enable the matter to be dealt with more efficiently.

[4] I declined to permit legal representation. This is an application to extend time. The factual matters in dispute were not complex and there are no complex legal issues to be determined. I considered that Seeley’s representatives, who include its legal counsel and the general manager human resources, were able to represent Seeley effectively. That the persons who could represent Seeley were also witnesses in the matter does not of itself mean that permission for legal representation should be granted. It will often be the case in these matters that unrepresented parties will be both witness and advocate. Further, I determined that it would not be unfair to not allow Seeley to be represented in circumstances where Mr Mather is unrepresented and is himself unfamiliar with the law and Commission proceedings.

[5] By agreement of the parties the matter proceeded by way of determinative conference.

Background

[6] Mr Mather was employed by Seeley from January 2011. At the date of his dismissal Mr Mather had been absent from work for some months. In August 2013, Mr Maher made a workers’ compensation claim alleging that he had been bullied and harassed at work. That claim was rejected by Seeley’s insurer in November 2013.

[7] On 5 December 2013, an article was published in The Border Mail. It quoted Mr Mather. The report included a picture of a health, safety and environment hazard report. The story reported Mr Mather’s allegation that he had filed a company hazard report about a dangerous machine on 5 March 2014. This was the same machine which crushed a co-worker’s hand on 20 November 2013.

[8] Mr Holland, the General Manager Human Resources, formed the view after investigating the newspaper report that the hazard report was never provided to Seeley or Worksafe.

[9] As a result Mr Holland concluded that Mr Mather was guilty of serious misconduct and by letter terminated his employment.

[10] On 9 December 2013, Mr Holland spoke to Mr Mather by telephone and Mr Mather told him he had not received the termination letter. Mr Holland told Mr Mather that he had been dismissed and read him the letter.

Are there exceptional circumstances?

[11] The Fair Work Commission (the Commission) can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[12] In deciding whether there are exceptional circumstances the Commission must take into account:

The reason for the delay: s.394(3)(a)

[13] Mr Mather contacted his lawyers, Slater and Gordon, on 9 December 2013 and met with a solicitor Mr Don Cameron on 12 December 2013. 1 It was his evidence that Mr Cameron agreed to file his unfair dismissal application.2

[14] As Mr Mather had not called Mr Cameron to give evidence in this matter, I caused a summons to be issued to Mr Cameron. Mr Cameron attended the hearing and gave evidence that he was not instructed by Mr Mather to file an unfair dismissal claim. Mr Cameron said that Mr Mather had a number of legal matters on foot and Mr Mather told him that he had been dismissed. Mr Cameron said he told Mr Mather that if Mr Mather’s union was prepared to back him he would take on his case, however if it was not, then it was unlikely that he would act for him. This was how the matter was left.

[15] Mr Cameron said that he contacted Mr Mather’s union who advised that it would not be taking on the case. Mr Cameron did not advise Mr Mather of the union’s decision. Mr Cameron said he further met with Mr Mather in January or February about his other matters and Mr Mather did not raise the unfair dismissal claim with him.

[16] Mr Mather said he met with Sharla and John from Slater and Gordon on 13 February 2014 and there was discussion of his unfair dismissal claim and he said he was told to gather evidence in relation to his claim. 3

[17] Mr Mather contacted his lawyers again on 18 February 2014 and asked why his application was taking so long to go to court.  4

[18] On 19 February 2014, Mr Mather said he was contacted by Sharla of Slater and Gordon who advised him that Mr Cameron had not filed the unfair dismissal application. 5

[19] On the same day Mr Mather contacted his union organiser and the Fair Work Information Line and on 21 February 2014 he contacted the Law Commission to make a complaint against Slater and Gordon. On the same date he sent a message to his union organiser asking if he could help him submit his application. He sent another message to his union organiser on 24 February 2014 and on the same date contacted the Law Institute to see if he could get advice from a lawyer. He said he then contacted a number of lawyers and community legal aid but they could not act for him either because they had a conflict of interest or it would cost too much. 6

[20] On 7 March 2014, Mr Mather sent his application to the Commission. 7 It did not arrive until 12 March 2014.

[21] Mr Mather said he had done all he could to get his application filed on time. While he did not articulate this, it appears that Mr Mather relied on representative error to explain the delay in lodging his application at least until 19 February 2014.

[22] I am not able to find on the evidence before me that Mr Mather instructed Mr Cameron to file an unfair dismissal application. I prefer Mr Cameron’s evidence to Mr Mather’s evidence about what occurred on 12 December 2014. Mr Cameron gave evidence that he had kept file notes of his discussion with Mr Mather and that those notes did not show that he had taken instructions to file the application. There were no documents put before the Commission by Mr Mather evidencing any retainer held by Mr Cameron to act on his behalf in his unfair dismissal matter. As Mr Mather had another matter that was being dealt with by Mr Cameron, I consider that is likely that Mr Mather was confused about which matters Mr Cameron represented him in.

[23] In Robison v Interstate Transport Pty Ltd the Full Bench distilled the principles to be considered when dealing with representational error. 8

“[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 carry out 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.”

[24] However, even if I accepted that there had been representative error this does not explain why Mr Mather waited until February 2014 to find out what was happening with his application.

[25] Even putting aside those considerations, Mr Mather also needs to explain his delay after 19 February 2014 as he then took another 16 days to post his application and it took another 5 days for it to be received by the Commission.

[26] Mr Mather gave evidence that he was aware that there was a 21 day time limit to lodge his application. He said that Sharla had told him about the time limit on 19 February 2014. She did not tell him that he could file his application and request an extension of time.

[27] It was only after speaking to the Commission on 19 February 2014 that Mr Mather said he became aware that he could still make his application and seek an extension of time.

[28] Despite knowing that his application was out of time, I find he did not then act promptly to lodge his application.

Whether the person first became aware of the dismissal after it had taken effect: s.394(3)(b)

[29] Mr Mather became aware of the dismissal when he spoke to Mr Holland on 9 December 2014. I have, for the purpose of calculating time, taken this as the date of Mr Maher’s termination. Mr Mather had the full 21 days to lodge his claim. This weighs against granting him an extension of time.

Any action taken by the person to dispute the dismissal: s.394(3)(c)

[30] Mr Mather did not advise Seeley that he was contesting his dismissal. He did promptly contact a lawyer about this matter. Much later he contacted his union and the Commission though this was more than 21 days after his dismissal. On balance I consider this criterion to be neutral.

Prejudice to the employer (including prejudice caused by the delay): s.394(3)(d)

[31] Seeley does not contend that it would suffer any particular prejudice. This weighs in favour of granting an extension of time.

The merits of the application: s.394(3)(e)

[32] Seeley gave detailed evidence about the matters leading up to Mr Mather’s dismissal. Much of that evidence was not in contest.

[33] Mr Mather’s employment was terminated because he allegedly gave a false report to The Border Mail, a local Albury/Wodonga newspaper, which Seeley said was serious misconduct because it caused a serious or imminent risk to the reputation, viability and profitability of the business. 9

[34] Mr Holland who made the decision to terminate Mr Mather’s employment said he was contacted by The Border Mail on 4 December 2013 asking for comment on a story they intended publishing. A worker at the factory had been seriously injured on 20 November 2013 when his hand had been crushed in a machine. Mr Holland was told that another worker from the factory had told the newspaper that he had lodged a health, safety and environment report in March 2013 in which he had reported that the same machine was dangerous and needed to be replaced. 10

[35] Mr Holland says he had enquires made to see if Seeley had ever received such a report and he was told that no one had received it. 11 The next day the report was published in The Border Mail. Mr Holland said until the article was published he did not know who had spoken to the press.

[36] Mr Holland was provided with a copy of the article on the morning of 5 December 2014 and also read the report online. 12

[37] When the report was published Mr Holland saw that Mr Mather was the source of the information. 13

[38] Mr Holland said that he tried to contact Mr Mather to discuss the report but his phone was disconnected. He then sent him an email at 1.15pm asking him to contact him to discuss the report as soon as possible. 14

[39] Mr Mather alleged that Mr Holland had in fact sent the email at 3.44am on the 5 December 2013. A copy of the email received by him was attached to his application. Mr Holland denied sending the email at this time and could not explain the discrepancy. However it is not necessary for me to determine this inconsistency in the evidence.

[40] Mr Holland was told that Mr Mather was on the same day “holding a press conference outside of the Albury facility. Brad had been heard making comments consistent with the allegations in the Border Mail.” 15As a result Mr Holland decided that Mr Mather had not been misrepresented in the report.

[41] Mr Mather did not attempt to contact anyone at Seeley on either the 5th or 6th December and did not respond to Mr Holland’s email.  16 Mr Holland thought that Mr Mather would have been aware of how serious that matter was and would have known that Seeley would try to contact him.

[42] Mr Holland determined to summarily dismiss Mr Mather and forwarded a letter to his home address on 6 December 2014. 17

[43] Mr Maher does not deny being the source of The Border Mail story. He claimed that he went to the newspaper because he did not know how to contact Worksafe.

[44] He denied that that the hazard report was a recent invention claiming that he had provided it to his lawyers in September 2013, well before the accident.

[45] It is clear that, even if Mr Mather’s allegations are correct, his decision to take his concerns to the media as opposed to his employer or Worksafe had the potential to damage the reputation of his employer. Mr Mather submitted that even if Seeley were justified in terminating his employment, his termination was unfair because he was not given an opportunity to respond. Seeley submitted that it did provide Mr Mather with an opportunity to respond but Mr Mather did not respond to its invitation to him to attend work to discuss the newspaper report. I am not able make any final determination about Mr Mather’s unfair dismissal claim as the evidence has not been tested. As he has an arguable, albeit not a strong case, this weighs in favour of granting an extension of time.

Fairness as between the person and other persons in a similar position: s.394(3)(f)

[46] No submissions were made on this criterion.

Other matters: s.394(3)(e)

[47] No submissions were put that there were other relevant matters.

[48] In the hearing, Mr Mather made reference to his depression. Mr Mather was unwell leading up to the dismissal and Mr Cameron who was representing Mr Mather in his workers compensation claim gave unchallenged evidence that he had a report that Mr Mather suffered depression and anxiety.

[49] Mr Mark de Koeyer, Operations Manager for Seeley, made reference to Mr Mather’s being depressed in the period leading up to his dismissal 18 and a clinical psychologist in September 2013 noted that he suffered from an adjustment disorder with mixed anxiety and depressed mood. His work cover certificates stated that he was suffering from depression and anxiety and had no work capacity at the time of his dismissal.

[50] Mr Mather did not produce any medical evidence that he was not able to file his application on time though, he did say that he found it difficult to put the material together and that took some time.

[51] While I accept that Mr Mather was ill, I am unable to find that his illness prevented him from pursuing his claim in a timely fashion. He was able, in the period he was off work due to his illness, to deal with the other legal issues arising from his complaints about his treatment at work.

Conclusion

[52] Mr Mather was aware of his dismissal on 9 December 2014. I accept Mr Cameron’s evidence that Mr Mather did not instruct him to file his unfair dismissal application.

[53] I accept that Mr Mather may have been confused about what was said to him on this occasion. However there is no evidence that until February 2014, Mr Mather took any steps to make inquiries of Mr Cameron about his claim. He was advised on 19 February 2014 that his claim had not been lodged and on his own evidence he knew that there was a 21 day time limit for making the application. Mr Mather then took a further 16 days to post his application which was not received until a further 5 days later.

[54] I am not satisfied that there are exceptional circumstances warranting an extension of time. I am not satisfied that there was representational error. At most Mr Mather may have been confused about what occurred on 9 December 2014 but he knew from Mr Cameron that unless Mr Mather’s union was prepared to back him then Mr Cameron would not act for him. There is no evidence that Mr Mather followed up with his union to find out if they were prepared to back him and Mr Mather did not call his union representative to give evidence on his behalf.

[55] In any event even if there had been representational error, this ended on 19 February 2014 when he was told no application had been lodged. Mr Mather did not adequately explain the further delay in lodging his application. While I accept that Mr Mather had difficulty obtaining legal advice he knew that his application was out of time and he should have lodged his application promptly. Difficulty in obtaining legal advice is not exceptional. Further while his illness may have contributed to some of the delay it does not explain all of the delay.

[56] I am not satisfied that there are exceptional circumstances warranting an extension of time and Mr Mather’s application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr B. Mather representing himself.

Mr P. Munster representing Seeley International Pty Ltd.

Hearing details:

2014.

Wodonga:

29 May.

 1   Exhibit A2.

 2   Ibid.

 3   Ibid.

 4   Ibid.

 5   Ibid.

 6   Ibid.

 7   Ibid.

 8   [2011] FWAFB 2728.

 9   Exhibit R1 at RH7.

 10 Ibid at [23].

 11 Ibid at [25].

 12 Ibid at [28].

 13 Ibid at [27].

 14 Ibid at [33].

 15 Ibid at [34].

 16   Ibid at [37]-[38].

 17 Ibid at [46].

 18   Exhibit R3 at [45]-[46], [49]-[53].

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