Chad Hatton v Australian Postal Corporation T/A Australia Post
[2022] FWC 2734
•12 OCTOBER 2022
| [2022] FWC 2734 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Chad Hatton
v
Australian Postal Corporation T/A Australia Post
(C2022/2305)
| COMMISSIONER SCHNEIDER | PERTH, 12 OCTOBER 2022 |
Application to deal with contraventions involving dismissal
Mr Chad Hatton (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that he has been dismissed from his employment with Australian Postal Corporation T/A Australia Post (the Respondent) in contravention of the Act.
The Respondent objects to the application on the ground that the application was lodged out of time. The application was lodged on 8 April 2022. Before the matter progresses, the Commission must determine whether an extension of time in which to lodge the application should be granted.
Relevant Law
Section 366(1) of the Act provides that such an application must be made within 21 days after the dismissal took effect; or within such further period as the Commission allows.
Under section 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account; the reason for the delay; and any action taken by the Applicant to dispute the dismissal; and prejudice to the employer (including prejudice caused by the delay); and the merits of the application; and fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]
Background
The Applicant’s employment was terminated by the Respondent on 8 February 2022. The Applicant filed an Unfair Dismissal application on 27 February 2022, this was 19 days after his employment was terminated by the Respondent and within the relevant 21-day time limit. The parties participated in a conciliation with a Commission Conciliator in the unfair dismissal matter on 31 March 2022.
The Applicant was advised, during the proceedings in the unfair dismissal matter, that was no pathway for his matter to be heard in the Federal Circuit Court, unlike a General Protections application.
The conciliation in the matter was unsuccessful and the Conciliator confirmed this in writing to the parties on 31 March 2022.
On 5 April 2022 the Applicant notified the Conciliator that he wished to discontinue the unfair dismissal application. The following day, the Applicant called the Commission and stated he did not wish to discontinue his application.
On 7 April 2022, 7 days after the he was informed of the limits of the unfair dismissal application, the Applicant confirmed discontinuance of his unfair dismissal application. On 8 April 2022, the Applicant submitted this general protections application.
Consideration
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “the 21 day period prescribed… does not include the day on which the dismissal took effect.” [2]
It is not in dispute that the dismissal took effect on 8 February 2022. The final day of the 21-day period was therefore 1 March 2022 and ended at midnight on that day. The application was made on 8 April 2022. The application was made 38 days late.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 1 March 2022. The delay is the period commencing immediately after that time until 8 April 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]
The Applicant received preliminary legal advice from Slater and Gordon, the Applicant submitted the following regarding the advice he received:
“I informed them during our appointment that I was wanting to have the option to take this to Federal Court if it does not settle because of the severity of Australia Post's actions, he informed me that it was possible to do that through Unfair Dismissal and General Protections was a "harder and more expensive" process. Although I did not continue with the services of Slater & Gordon, I believed the information given to me was correct”
The Applicant provided phone records showing that on 22 February 2022 he contacted the Commission, the Applicant stated this was done with the intent of confirming the information provided above.
The Applicant also outlined that, upon undertaking his own research, he found information online that led him to believe that his unfair dismissal could be heard by the Court. The Applicant provided a screenshot of the Federal Circuit Court’s website and provided the following information:
“Here it says under Adverse Action: "If the issues in dispute do not fit the criteria for a small claim, you can still make an application to the Court for unfair dismissal, termination of employment or contravention of a general protection". With this information I further believed that I could request a ticket for my case to be heard at the Federal Court and I filed for Unfair Dismissal within the 21-day deadline.”
The Respondent outlined that, on 31 March 2022, the Applicant was advised that his matter could not proceed to Court and would be resolved in the Commission. The Respondent submits that, after being advised of this, the Applicant continued to participate in the unfair dismissal process in an attempt to come to a settlement.
The Respondent outlined that the Applicant did not immediately discontinue his unfair dismissal application upon learning the application was not suited to his needs. The Respondent highlighted that the Applicant only discontinued his unfair dismissal application 7 days after being advised of the above information. The Applicant had a further 8-day delay between being advised of the issue with his unfair dismissal application and making this general protections application.
The Commission has firmly established the considerations in assessing matters where representative error is advanced as a reason for delay in filing:
“(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.” [6]
The Applicant provided evidence regarding his consult with the legal advisor and provided an email to confirm the appointment had been scheduled. I found the Applicant to be a reliable witness and believe that the advice received, or the Applicant’s understanding of the advice he received, incorrectly persuaded him to make an application not suited to his needs.
The Applicant explained that his personal research enforced his belief about a potential future Court application. I note that the use of the term “unfair dismissal” on the Federal Circuit Court’s website is understandably confusing. However, upon further inspection, it is clear that the Court’s website references dismissal in the context of adverse action and unlawful termination. I find that the wording included in the information on the Courts website would have contributed to the Applicant’s misunderstanding. The Applicant’s reason for delay up to 31 March 2022 is reasonable.
Upon the revelation that the unfair dismissal application would not suit his needs, it was incumbent on the Applicant to promptly address this.[7] Following the conciliation on 31 March 2022, the Applicant did not attempt to discontinue his application until 5 April 2022. On 6 April 2022 the Applicant attempted to revoke the discontinuance and eventually confirmed his intention to discontinue early in the morning on 7 April 2022. Following his discontinuance, the Applicant lodged this current application late in the afternoon of 8 April 2022.
The Applicant did not provide a reason for why he waited 8 days from receiving the information to lodge the new application. Although a reason does not need to account for the whole period of delay, in the current circumstances where the Applicant was made abundantly aware of his mistake, I am not satisfied that this 8-day delay can be excused.
What action was taken by the Applicant to dispute the dismissal?
The Applicant lodged an unfair dismissal claim in the Commission prior to lodging this application. On the materials before the Commission, it appears the Applicant did not take other action to dispute the dismissal other than the filing of his unfair dismissal and general protections applications in the Commission.
As has been established in previous decisions of the Commission, the making of two applications concerning the same factual circumstances does not weigh in favour of granting an extension of time.[8]
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent submits that it has already incurred costs via time and effort spent responding to the Applicant unfair dismissal claim, whilst the factual nature of this claim is consistent with the unfair dismissal claim the Respondent contends that it will continue to incur additional costs.
The Respondent highlighted decisions in which the Commission recognised that, in matters where the employer had already incurred time, effort and cost in responding to the first application type, prejudice would be suffered by the employer in expending further time, effort and costs in responding to the second application, if the time in which to make it were extended.[9]
The Applicant, in his submissions, provided the following:
“It is not unfair, prejudice or disadvantageous to the Respondant for granting this extension of time as Australia Post is a Government-run Corporation and should be held to its highest standards to the public as a representation of Australia and its infustructure.”(sic)
The Applicant, however, did not expand as to why the Respondent would not suffer prejudice if the extension of time were to be granted.
Increased costs, time, and disruption caused by the progression of an application would usually amount to inconvenience to the employer, rather than any prejudice.[10] However, as noted by the Respondent, in circumstances where the employer has already expended effort defending against a claim made on the same grounds the Commission has found that granting an extension of time for the subsequent application would cause a detriment and prejudice to the employer.[11]
Consistent with the above, I find that granting an extension of time would cause prejudice to the employer above that usually associated with responding to an application.[12]
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[13]
It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
The Respondent submitted that it would be unfair to other persons in a similar position with matters currently before the Commission, or to matters previously decided by the Commission, if the Applicant’s application were allowed to progress. The Respondent highlight the below from Deputy President Asbury in Nguyet Bui v ALSCO Pty Ltd:
“There are many Applicants who advance as the only reason for the delay a decision to file a different kind of application who are not granted an extension of time. This consideration weights against a further period being granted”. [14]
Consistent with the determination of the Commission above, I find that granting an extension of time in this matter, where the Applicant waited over a week after receiving information to make his application, would raise issues in fairness to the many who have not had an extension granted under similar circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[15] Exceptional circumstances may 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 can be considered exceptional.[16]
As outlined by the Respondent in their submissions, there is a strong precedent previously set by the Commission in matters that are factually similar to this case, whereby the applicant makes an initial application and later seeks to change to a different type of application, in which exceptional circumstances have not been found. I note there are also several matters concerning change in application type, or representative error leading to an incorrect application type being lodged, in which an extension of time has been granted. However, on the materials before the Commission, it is clear the Applicant in this matter is not faultless in the delay and the delay was in part occasioned by the conduct of the applicant.
The Applicant’s initial confusion is excusable. However, the Applicant’s tardiness in filing this application after receiving further advice remains problematic. Additionally, as I have found above, granting an extension of time would give rise to prejudice against the Respondent and issues with fairness to others.
Having regard to all of the matters listed at section 366(2) of the Act, in isolation and combined, I am not satisfied that there are exceptional circumstances that would give rise to granting an extension of time.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The application before the Commission must be dismissed, an Order to that effect has been issued.[17]
COMMISSIONER
Appearances:
C Hatton, Applicant
A Freeman, Respondent
Hearing details:
2022.
Perth (by video):
July 28.
[1] [2018] FWCFB 901, at [39].
[2] [2020] FWCFB 553, at [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[3] [2015] FWCFB 287, at [12].
[4] [2018] FWCFB 901, at [39].
[5] [2018] FWCFB 901, at [40].
[6] (1998) 105 IR 1; Print Q0784.
[7] [2017] FWC 3090.
[8] [2014] FWC 5324, at [68]; and [2015] FWC 4557, at [24].
[9] [2015] FWC 4557.
[10] [2018] FWC 645, at [43].
[11] [2014] FWC 5324, at [69]; and [2015] FWC 4557, at [26].
[12] [2014] FWC 5324, at [69].
[13] [2011] FWAFB 975, at [36].
[14] [2022] FWC 20, at [46].
[15] [2011] FWAFB 975, at [13].
[16] [2011] FWAFB 975, at [13].
[17] [PR746745].
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