Clinton Chester v Freo Group Pty Ltd

[2012] FWA 10012

[2012] FWA 10012

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Clinton Chester
v
Freo Group Pty Ltd
(C2012/4903)

COMMISSIONER WILLIAMS PERTH, 27 NOVEMBER 2012

s.365 - General protections - extension of time.

[1] This matter involves an application made under section 365 of the Fair Work Act 2009 (the Act). The applicant is Mr Clinton Chester (Mr Chester or the applicant) and the respondent is the Freo Group Pty Ltd (the Freo Group or the respondent).

[2] The applicant alleges that he was dismissed from his employment on 9 June 2012 and alleges that this was in contravention of the General Protections Provisions of the Act.

[3] The application was made by his representative, the Construction, Forestry, Mining and Energy Union (the CFMEU), on 13 August 2012.

[4] Applications such as this are required by section 366 of the Act, set out below, to be made within 60 days of the dismissal taking effect. However there is discretion for Fair Work Australia where it is satisfied there are exceptional circumstances to allow a further period for the making of the application.

“366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA 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.”

[5] For this application to have been made within the 60 day time limit it should have been made no later than 8 August 2012. This is not the case and the respondent has objected to the application being heard because it was made out of time.

[6] This decision deals with whether or not there are exceptional circumstances such that Fair Work Australia should extend the time for Mr Chester to make this application.

[7] The parties have made written submissions and both parties have provided statutory declarations from various individuals regarding relevant factual matters.

The factual background

[8] I accept the evidence of both Mr Pallot and Mr Sneddon for the applicant as provided in their statutory declarations and accordingly find the following is what occurred between themselves and the applicant leading up to the making of the application.

[9] On 27 June 2012 Mr Chester gave an 11 page report detailing the circumstances of his dismissal to Mr Pallot, the Assistant Secretary of the WA Branch of the CFMEU.

[10] On 13 July 2012 Mr Chester spoke with Mr Sneddon, the CFMEU In-House Lawyer, who told the applicant that based on his report and their discussion there were grounds to make an application to Fair Work Australia and Mr Chester said that this was his preferred position.

[11] On 18 July 2012 Mr Sneddon emailed a draft general protections application to Mr Chester. That email also asked a number of questions regarding matters that had arisen through the drafting of the application. The following day Mr Chester responded with answers to these questions.

[12] On 23 July 2012 a second draft of an application was emailed to Mr Chester who then rang Mr Sneddon and gave him instructions that the application was correct and could be filed with Fair Work Australia.

[13] On 25 July 2012 Mr Sneddon contacted Louise Ware, HR Team Leader for the Freo Group, and asked to whom the application should be referred. During this conversation it was suggested that perhaps Mr Pallot should discuss the matter with Tony Canci, Managing Director of the Freo Group. The same day Mr Chester agreed to there being such a discussion.

[14] On 30 July 2012 a phone conference regarding the issues was held involving Mr Pallot, Mr Sneddon and Ms Ware with Mr Canci of the Freo Group however no resolution was reached.

[15] Mr Canci in his statutory declaration confirms that he participated in such a conference call with Mr Pallot and Mr Sneddon regarding the allegations made by Mr Chester against the Freo group.

[16] On 2 August 2012 Mr Pallot and Mr Sneddon spoke to Mr Chester on the phone and advised him that further information and corroborating statements from former work colleagues would be required. He was told that this information was required by 8 August 2012 so the application could be made in time. It was agreed that if Mr Chester provided the required information the application would be lodged.

[17] On 7 August 2012 Mr Chester emailed the additional information required to Mr Pallot and Mr Hudston of the CFMEU. Mr Pallot however was travelling interstate on business and although he had access to his emails he only checked them occasionally and then not in any detail.

[18] Mr Pallot swears that returning to work at the CFMEU Perth office on 13 August 2012 he checked his backlog of emails in more detail and found the email from Mr Chester which was dated 7 August 2012. He immediately forwarded this to Mr Sneddon and asked whether he was aware of it.

[19] Mr Sneddon had not been aware of this information provided by Mr Chester and upon receiving this on 13 August 2012, as forwarded by Mr Pallot, he then made this application on behalf of Mr Chester.

[20] The statutory declarations of Mr Thomas and Mr Banchilon for the respondent say that that Mr Chester was present at a pre-start meeting on 9 June 2012 and that there was some conflict and debate with Mr Chester regarding his presence and that he was told he was not needed at work that day and he should leave.

Consideration

[21] In this case it is submitted on behalf of Mr Chester that the reason for the delay in making the application was the representational error of the CFMEU.

[22] I accept that the unchallenged evidence is that the oversights by Mr Pallot, not carefully checking his email when he was aware of the deadline that Mr Chester faced and of Mr Sneddon not checking with Mr Chester on the last day of that deadline, were errors by the applicant’s representatives that meant the information Mr Chester had sent to them on 7 August 2012 was overlooked and not acted upon. I accept then that it is because of these representative errors that the application was not made on 8 August 2012 as it could have been but rather on 13 August 2012.

[23] For his part Mr Chester initially provided detailed information to his representatives, he engaged in consultations with them and finally provided additional information as requested by them within the deadlines he was advised. Consequently I am satisfied that Mr Chester was positively pursuing the making of this application. The evidence is that he has actively sought through his representatives for the matter to be brought before the Tribunal.

[24] Considering this I am satisfied then that representative error in this case explains all of the delay in the making of this application.

[25] As noted above Mr Chester has actively pursued the making of this application through his representatives. He has also agreed for them to hold discussions with the respondent to attempt to resolve his complaints. Other than that no other actions have been taken by him to dispute his dismissal.

[26] There is no evidence of any real prejudice to the respondent caused by the relatively short delay in this case.

[27] With respects to the merits of the application the respondent disputes that there was a dismissal of Mr Chester at all and in any event says that even if there were the actions of the employer did not in any way involve ones that were contraventions of the General Protections Provisions.

[28] The Tribunal’s role when considering whether an extension of time to make an application should be granted is not to embark on a full consideration of the merits of the application. In the circumstances here then there is some conflict between the facts outlined in the application and the evidence contained in the statutory declarations provided by the respondent and only through a full hearing of this matter will these conflicts be resolved.

[29] Consequently the merit of this application is a neutral factor in determining whether or not an extension of time to make the application will be allowed.

[30] There is no relevant evidence before the Tribunal regarding persons in a like position.

Conclusion

[31] All of the delay that has occurred in this instance was a result of representative error and it is clear that the applicant had been actively seeking to bring his concerns before the Tribunal by the manner in which he had engaged with his representative union.

[32] Considering these issues and all of the other factors relevant above I am satisfied that what has occurred here amounts to exceptional circumstances. The delay in making this application is short and considering all of the factors I find that this is an appropriate instance where Fair Work Australia should exercise its discretion in favour of extending the time for the applicant to make his application. Accordingly I will issue an order to that effect in conjunction with this decision.

[33] The matter will now be listed for a conference.

COMMISSIONER

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