Construction, Forestry, Mining and Energy Union v John Holland Group Pty Ltd and Others

[2012] FWA 7711

[2012] FWA 7711

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Construction, Forestry, Mining and Energy Union
v
John Holland Group Pty Limited;
First Respondent

Mr Justin Webb;
Second Respondent

Mr Shane Smith;
Third Respondent

Mr David Medcalf
Fourth Respondent

(C2012/478)

COMMISSIONER SPENCER BRISBANE, 6 SEPTEMBER 2012

Alleged termination due to workplace complaint - Jurisdiction - Extension of time - representative error.

Introduction

[1] The Construction, Forestry, Mining and Energy Union (CFMEU, the Applicant), made an application on behalf of their member Mr Brendon Grennell to Fair Work Australia (FWA) pursuant to s.365 of the Fair Work Act 2009 (the Act) claiming a contravention of the general protections provisions of the Act, involving the termination of his employment by John Holland Group Pty Limited, the first Respondent. The application also refers to the conduct of Mr Justin Webb, second Respondent, Mr Shane Smith, third Respondent and Mr David Medcalf, fourth Respondent (together with the first Respondent, collectively the Respondents).

[2] The Applicant stated in the application that the date of the dismissal was 9 March 2012. The application was filed with FWA on 11 May 2012, 63 days after the dismissal. The Applicant had been employed by the first Respondent since May 2011. The first Respondent lodged a jurisdictional objection that the application was lodged out of time. This decision only deals with the jurisdictional matter as to whether, an extension of time should be granted to accept the application.

[3] A s.365 application for relief must be made within 60 days after the dismissal took effect (s.366(1)(a) of the Act). In accordance with section 366(1)(b), FWA may allow, under section 366(2), an application within a further period that is determined by FWA. FWA may extend the time for making the application, if it is satisfied that there are exceptional circumstances taking into account certain specified matters as set out in s366(2).

[4] Directions were set by FWA for the determination of the jurisdictional issue, and the parties were requested to respond as to whether they required a hearing. The parties filed their material in accordance with the Directions and confirmed that the matter could be determined on the papers without the need for a hearing. Whilst this determination does not make reference to all of the materials filed in relation to this matter, all of such have been considered.

Background

[5] After commencing employment as a “tunneller” at the Bulimba Creek Upgrade Project, Mr Grennell was appointed as a Health and Safety Representative (HSR).

[6] On 16 February 2012, Mr Grennell was directed to operate a concrete pump. The workers in the shaft were the second and third Respondents in this matter. Whilst operating this pump, Mr Grennell leaned over the shaft to communicate with those employees in the shaft, which resulted in his hat falling off his head and into the shaft. It is alleged that Mr Grennell, at the request of those in the shaft, threw a grease gun down into the shaft. Upon concluding the task, Mr Grennell and the other men who were in the shaft began to argue about the operation of the concrete pump. It is submitted that Mr Grennell complained about this argument to Mr Burrow, Construction Superintendent.

[7] About 2 hours after this incident, Mr Burrows directed Mr Grennell to finish what he was doing and leave the site. Whilst finishing his duties, Mr Grennell fell off a truck and injured his back. On 17 February 2012, Mr Grennell notified the Respondent that he was unfit for duties.

[8] On or around 17 February 2012, the first Respondent commenced an investigation into the allegations made against Mr Grennell arising out of what had occurred, whilst he was operating the concrete pump on 16 February 2012.

[9] On 9 March 2012, Mr Grennell was dismissed for serious misconduct.

Relevant legislation

[10] The relevant sections of the Act are as follows:

365 Application for FWA to deal with a dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to FWA for FWA to deal with the dispute.

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.

Summary of Submissions of the Applicant

[11] The Applicant, the CFMEU, submitted that the reason for the delay in filing the application was due to representative error, and Mr Grennell was not at fault.

[12] The CFMEU submitted that the Union had been involved in the matter prior to the dismissal of Mr Grennell:

“a. prior to the dismissal, the CFMEU was assisting Mr Grennell at his request in relation to both a workplace disciplinary investigation and a workplace injury, both arising out of events on 16 February 2012;

b. the CFMEU and Mr Green dealt with the First Respondent by telephone, written correspondence and in person in relation to both the workplace injury and the disciplinary investigation, in which it was clear that Mr Grennell’s employment was at risk and the CFMEU opposed any dismissal;” 1

[13] The Applicant submitted that Mr Grennell contacted the Union immediately after being notified of his dismissal and instructed them to file a general protections claim with FWA. Whilst assisting Mr Grennell in preparing the application for this matter, Mr Green, of the Union, mistakenly adopted the view that the date of dismissal was 16 March 2012 (the date that Mr Grennell’s workers’ compensation claim was rejected by the Respondent).

[14] The Union, on behalf of Mr Grennell, submitted that Mr Green first became aware of his error on 11 May 2012, at which time the application was lodged with FWA. In his affidavit, Mr Green stated:

“On Friday, 11 May 2012, I began to draft an application with a view to emailing a draft to Mr Grennell that day, for him to review over the weekend, so that it could be filed on the Monday, 14 May 2012. It was when I was drafting the application and I looked at the letter of dismissal that I discovered it was dated 9 March 2012. I therefore ensured that the application was filed the same day. I did not have time on that day to write submissions about the reason for the delay...”

[15] The Applicant submitted that these facts are analogous to those in M N Robinson v Interstate Transport Pty Ltd 2 (Robinson) where it was held by the Full Bench that:

“[36] We find that there was an acceptable explanation of the reason for the delay in lodgement of the application - representative error resulting from the oversight of Mr Robinson’s original representative of the electronic reminder whilst the filing of the application was within his care and responsibility. In circumstances where Mr Robinson had promptly sought legal advice following his termination, promptly executed a client agreement prepared on his instructions and, upon doing so, immediately instructed his original representative to lodge a general protections application, we find that he was entitled to rely upon his representative to act on his clear instructions to file an application and was blameless for the delay in lodgement of the application.”

[16] The Applicant submitted that Mr Grennell took action immediately following the dismissal, instructed the CFMEU to dispute the dismissal and he regularly spoke to Mr Green who assured Mr Grennell that the application would be lodged within time. The Applicant noted that the substantive application has merit, given that the allegations made by the Respondent are denied by Mr Grennell.

Summary of Submissions of the Respondent

[17] The Respondent submitted that the Applicant has the onus to establish that the circumstances are ‘exceptional circumstances’ that are such to weigh in favour of granting the extension of time. In this regard the Respondent cited Chalouhi v Tunstall Australasia Pty Ltd 3 where Jarrett FM stated:

“[8] I accept Turnstall’s submission that the discretion to extend the relevant period is a discretion to grant, not a discretion to refuse, and therefore Mrs Chalouhi has the onus to satisfy the Court that grounds exist for exercising the discretion in her favour. She has a positive burden to demonstrate that the justice of the case requires the extension.” 4

[18] The first Respondent submitted that the Applicant has not established that exceptional circumstances exist.

[19] The Respondent submitted that the second, third and fourth Respondent named in the application could not be implicated in taking adverse action against the Applicant as section 342 of the Act, does not provide for an application to be made under s.365, alleging that adverse action was taken against an employee by another employee. The Respondent stated that this application, in that regard, has no legal basis and should be dismissed summarily.

[20] The Respondent further submitted that several allegations put by the Applicant are ‘misconceived’ and ‘cannot amount to adverse action within the meaning of section 342’ of the Act. 5 The Respondent noted that an employer simply failing to afford natural justice to an employee in a dismissal, for example, cannot amount to a case of adverse action.6

[21] It was submitted that due to Mr Grennell’s experience and status as a health and safety representative, Mr Grennell knew, or ought to reasonably have known, that throwing his hat and a grease gun into a shaft amounted to ‘a significant safety breach; gross misconduct justifying instant dismissal; and an assault’. 7

[22] The Respondent emphasised that, in this matter the Union was the Applicant rather than the dismissed employee. The Respondent therefore separated the dismissed employee from the Union. The CFMEU, was noted on the application as being the Applicant, rather than Mr Grennell. The Respondent emphasised that the CFMEU is a Union of long standing and experience and therefore, if the extension of time was allowed, this would cause unfairness to other Applicants with less experience who have their extension of time applications rejected. The Respondent also noted that the CFMEU started to draft their submissions when the application was already out of time, but did not note this in their application. The Respondent argued that this ‘deliberate and conscious decision’ weighs heavily against extending the time limit. 8

[23] In relation to representative error, the Respondent distinguished this matter from the decision of Transport Workers Union v School Bus Contractors Pty Ltd 9, upon which the Applicant relied. The Respondent submitted that FWA should rather consider Shields v Warringarri Aboriginal Corporation,10 where the Applicant had access to representation before her employment came to an end and sought advice during a period of suspension. The application in that matter was then lodged 7-9 days out of time. Senior Deputy President Kaufman was satisfied that there were no exceptional circumstances and refused to extend the time. The Respondent submitted that Mr Grennell similarly sought legal advice during a period of suspension; obtained such advice and filed the application out of time.

[24] The Respondent stated that the delay has caused them significant prejudice. The delay has meant that they have not been able to contact key witnesses, namely the crane operator who witnessed the incident. The Respondent submitted they were also prejudiced by the inaction of the CFMEU, to put them on notice, of the impending application.

Considerations

[25] Section 366(2), sets out the matters to be taken into account to ascertain whether exceptional circumstances exist in order to extend the period of time for making the s.365 application. These matters are considered below.

s.366(2)(a): The reason for the delay

[26] The reason for the delay, was cited as representative error by the CFMEU. The CFMEU submitted that the delay in filing the application was due to their error in mistakenly adopting an incorrect date for the dismissal. They further submitted that when this was discovered they filed the application immediately. The Union stated that the Applicant was not responsible for the late lodgement, given his immediate request to the Union and his regular contact with the Union. The reason for the delay was representative error and the delay cannot be attributed to Mr Grennell.

s.366(2)(b): Any action taken by the person to dispute the dismissal

[27] The first Respondent submitted that the Union has failed to take any action to dispute the dismissal until after the expiry of the time limit. In particular the first Respondent pointed to the Unions failure to put them on notice that the dismissal was being disputed. Further they stated that the Union delayed commencing to draft the application or make enquiries with the Fair Work Ombudsman in relation to alleged underpayments.

[28] Mr Grennell however took prompt action in contacting the Union to gain assistance in lodging an application to dispute the dismissal. He was entitled to rely on the Union to lodge the application within time.

s.366(2)(c): Prejudice to the employer (including prejudice caused by the delay)

[29] The first Respondent submitted they would be subject to prejudice on the basis that the delay deprived the Employer of access to the evidence of a key witness. The Respondent argued that, given the Applicant’s failure to put them on notice of the application, the delay would prejudice their case.

[30] In this matter Mr Grennell was suspended prior to his dismissal whilst the Respondent undertook a full investigation. It would be reasonable to assume, that as part of the Respondent’s investigation, the crane operator that witnessed the event, (whose evidence the Respondent stated will be integral to the Hearing) would have been interviewed during that time. Given the Respondent’s expected reliance, on his evidence, in defending the dismissal, this material would have been one of the considerations in assessing whether dismissal for serious misconduct was warranted. The delay in the lodgement of the application or notification of it, is not commensurate, with the Respondent’s inability to locate the witness.

[31] The first Respondent further submitted, that the failure of the Union to raise the issue of late filing in the originating application and make the necessary application for extension of time, at that point, has affected the conduct of the matter and should be taken into account by the Tribunal. Reference has also been made to the issue of the Respondent’s difficult with securing witness evidence in relation to the Union’s conduct of the matter. In this regard the Respondent’s request for an adjournment of the Conference was granted. It is noted that prior to the application being filed, the Respondents were unaware of the Applicant contesting the matter, but again he had put this in the hands of the Union. The Respondents were aware that the Union was involved at the investigation stage and the dismissal stage and therefore that Mr Green’s action to contest the dismissal could be expected.

s.366(2)(d): The merits of the application

[32] The Applicant’s submissions briefly address the merits of the application. Mr Grennell denied the Respondent’s allegations.

[33] The first Respondent included particular submissions relating to the merits, or otherwise, of this application. The Respondent emphasised the safety breaches committed by Mr Grennell and the severity of such, given he was the Health and Safety Representative and that he knew the risks. The Respondent also submitted that Mr Grennell was not able to bring an adverse action claim against the other employees under the legislation. This is an issue that was not fully argued before FWA and would need to be considered before the Federal Magistrates Court taking into account the application of ss.342 and 550.

[34] A conclusion could not be drawn in regard to the merits of the matter on the basis of the limited evidence before the Tribunal. Therefore this matter remains neutral in the assessment of the criteria.

s.366(2)(e): Fairness as between the person and other persons in a like position

[35] There were no other employees in a like position. According to this criteria it has only been considered generally in terms of the length of the delay against other applications of a similar type.

Conclusion

[36] The Act requires FWA to be satisfied that there are exceptional circumstances in order to extend the period of time for a person to make an unfair dismissal application. In addressing the issue of ‘exceptional circumstances’. ‘Exceptional circumstances’ has been considered in similar terms in relation to s.394 applications. Accordingly I adopt the approach taken by Whelan C in Parker v Department of Human Services 11 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)12 as set out below:

“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”

[Mann v Minister for Immigration and Citizenship [2009] FCAFC 150]”

[37] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.” 13

[38] The circumstances of the current matter are analogous to those in the Full Bench decision in M N Robinson v Interstate Transport Pty Ltd 14. That decision assessed the terms of s.366, the late filing of a s.365 application, which was predominantly due to representative error.

[39] In that decision the Full Bench stated:

“[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 15 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 Davidsons’s Case16 in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case17 found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act.18 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 application 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 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.””

[40] The Full Bench in D La Rosa v Motor One Group Pty Ltd noted the following extract in regard to representative error causing a short delay as per the current circumstances:

[31]... in the context of s.170CE of the WR Act:

“As is evident from Clarke, little might be required to satisfy the Commission that the Applicant was blameless in the delay. In the context of a relatively short delay, it may simply be a matter of establishing that the Applicant gave instructions to lodge [in this case] a Notice of Election and thereafter left matters in the handsof his or her representative.” 19

[41] In the current matter, Mr Grennell is blameless regarding the late lodgement of the application, and the delay cannot be apportioned to him.

[42] Mr Grennell, based on the submissions, sought the assistance of the Union and was in regular contact with the Union to ensure his application was filed on time. The failure for the lodgement was due to the actions of the Union, and cannot be attributed to Mr Grennell.

[43] With regard to the Union being the Applicant and the Union acting as Mr Grennell’s representative and the Union’s failure to lodge the application within the statutory timeframe, the decision of Transport Workers Union v School Bus Contractors Pty Ltd 20dealt with this issue:

“53. It would appear incongruous that the same error, made by the same person, could be a representative error under s.353A(3)(a) of the FW (Registered Organisations) Act if Ms Jones had applied as an individual and used the Union to prepare an application, but would not be a representative error if being represented by the Union through the agency of its officer Mr Dalliston by reason of the provisions of s.353A(2)(a) of the FW (Registered Organisations) Act. This tends to the conclusion that representative error exists even where it is the Union which is the Applicant in the proceedings and which makes that error.

54. The tendency to conclude that representative error exists even where it is the Union which is the Applicant in the proceeding which makes that error is:

a) supported by analogy to the position where a lawyer acts for the dismissed employee, and the representative error, that is the error by the lawyer, would not ordinarily disadvantage the dismissed employee. It would be incongruous for an error by one representative, a lawyer, to be treated differently to an error by another representative, a union officer, especially bearing in mind that the appearance of both the lawyer and the union officer is controlled by federal legislation; and

b) further supported by the present approach of FWA (and before it the AIRC) in relation to s.365 of the FW Act, which appears not to distinguish between a situation where:

i) an industrial association is the Applicant; 21 and

ii) the dismissed person is the Applicant, and the industrial association provides an officer or official to assist or conduct the case for the dismissed person. 22

.....

63. The principle that an affected person should not be disadvantaged by the error or oversight of their representative is well established in workplace relations law. 23”

[44] The reason submitted for the delay in filing the application was representative error. As per the conclusions of the Full Bench in Robinson, 24 representative error in circumstances where the Applicant is blameless would constitute exceptional circumstances. This conclusion was drawn in this matter also subject to the considerations of ss.366(2)(b) to (e). With regard to these criteria, in the current matter Mr Grennell informed his Union to dispute the dismissal from the outset and checked on it with the Union. In this matter there is a dispute regarding the merits of the application, that would require an assessment of sworn evidence. Further, the circumstances of the delay as presented, do not equate to the prejudice submitted by the Respondent regarding the delay in filing, being responsible for the alleged lost evidence of the Respondent. The Respondent should be in a position to defend their decision of dismissal, after making such a decision. On the material this difficulty with the witness would be the case even if the application was not lodged 3 days out of time but lodged just within time. The Respondent did not submit that the additional three days could be directly attributed to the difficulty in locating the witness. The Respondent’s on the submissions regarding the evidence, would have been, in the circumstances as submitted, in the same position if the application had been lodged within time.

[45] After a consideration of the legislative criteria in s.366(2) The Tribunal (as currently constituted) is satisfied that exceptional circumstances exist on the basis of representative error and therefore an extension of time is granted, pursuant to s.366(1)(b), to allow the filing of the application to 11 May 2012.

[46] I Order accordingly.

[47] A further listing will issue to confirm that conciliation in this matter is exhausted.

COMMISSIONER

Appearances:

On the papers.

 1   Applicant submissions 4.a & b.

 2   Watson and Drake SDP and Harrison C [2011] FWAFB 2728.

 3 Jarrett FM [2011] FMCA 550.

 4   Chalouhi v Tunstall Australasia Pty Ltd [2011] FMCA 550, [8].

 5   Respondent’s submissions, 4.11.

 6   Respondent cited Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399, [122].

 7   Respondent Amended Supplementary Employer’s Response to Application for FWA to Deal with a General Protections Dispute, 4.17.

 8   Respondent’s submissions, 5.14.

 9 [2011] FMCA 28.

 10   [2009] FWA 860.

 11  Wheelan C, [2009] FWA 1638, [30] and [31].

 12   Lawler VP, [2010] FWA 1394.

 13 Acton SDP, Cartwright SDP and Thatcher C, [2010] FWFB 7251, at [5].

 14   [2011] FWAFB 2728.

 15 (1997) 74 IR 413.

 16   Print Q0784.

 17   [2011] FWAFB 466.

 18 Ibid at [35].

 19   PR924583 at para 24.

 20 [2011] FMCA 28.

 21   See, for example, Transport Workers Union of Australia v Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services [2010] FWA 9622 (“Veolia Environmental Services”) where a FWA Commissioner applied traditional principles with respect to representative error in relation to the conduct of a TWU official in a case where the TWU was the Applicant.

 22   See, for example Cooper v Keppel Community Care Association Inc [2010] FWA 7680 (“Keppel Community Care”).

 23   See Stephens at paras.12, 21 and 23 per Smith FM (citing both A’Hearn at 443 per Black CJ, Gray and Burchett JJ, and Hunter Valley Developments at 351 per Wilcox J); Tandoegoak & Anor v Margeurite Gerard Pty Ltd [2007] FMCA 621 at paras.21-23, 26 and 28-29 and 40(iii) per O’Sullivan FM (“Tandoegoak”); Clark at 418-420 per Ross VP, Drake DP and Deegan C.

 24   Watson and Drake SDP and Harrison C [2011] FWAFB 2728.

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