Daniel Clarence McIntyre v Bechtel Australia Proprietary Limited
[2010] FWA 3011
•20 APRIL 2010
[2010] FWA 3011 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Daniel Clarence McIntyre
v
Bechtel Australia Proprietary Limited
(U2009/13754)
DEPUTY PRESIDENT SWAN | BRISBANE, 20 APRIL 2010 |
Termination of employment – extension of time.
[1] This decision arises from the application for reinstatement made by Mr Daniel McIntyre (the Applicant). The Applicant claims to have been unfairly dismissed by Bechtel Australia Proprietary Limited (the Respondent).
[2] Both parties to these proceedings have requested that the matter be heard on the papers.
[3] Section 394(2) of the Fair Work Act 2009 (the Act) provides that an application of this nature must be made either within 14 days after the dismissal took effect or within such further period as Fair Work Australia (FWA) allows under s.394(3) of the Act.
[4] In the exercise of its discretionary power, FWA must consider if exceptional circumstances exist to extend the time period under s.394 (3) of the Act.
[5] The factors to be taken into account are as follows:
• the reason for the delay;
• whether the person first became aware of the dismissal after it had taken effect;
• any action taken by the person to dispute the dismissal;
• prejudice to the employer (including prejudice caused by the delay);
• the merits of the application; and
• fairness as between the person and other persons in a similar position.
Background to the application
[6] The dismissal took effect from Tuesday 20 October 2009. The 14 day limitation period expired on Tuesday 3 November 2009 and the application was filed on Thursday 11 November 2009. The application was out of time by 8 days.
[7] The Applicant was summarily dismissed by the Respondent. The letter of termination is as follows:
“This letter confirms the Project’s decision to terminate your employment with immediate effect.
On Tuesday 13 October a serious safety incident occurred. The results of this incident, found that you were involved in incomplete scaffold erection that was then released for general use. The behaviour is defined in the Project Site Requirements as:
“Breaches of project safety procedures and/or regulations which result in, or could have resulted in, serious and/or life threatening injury to an individual employee or other members of the team.”
You previously received a first and final warning due to the same behaviour, on 13th July 2009.
Your behaviour is deemed to be unsatisfactory to the project and as a result the project’s decision is to terminate your employment immediately.
Your final payments will be deposited into your nominated bank account. Any other documentation will be sent to the above address.” 1
[8] The Respondent claims that the Applicant had previously received a first and final warning for a similar incident on 13 July 2009.
The reason for the delay
[9] The Applicant unsuccessfully sought assistance from Legal Aid Queensland on the day following his dismissal. Following that, the Applicant then sought help from his father, Mr Barry McIntyre, and then, through his father, from an organiser with the Australian Manufacturing Workers’ Union. (Union). The Applicant was not a financial member of the Union.
[10] An affidavit from Mr P Golby (and official of the Union based in Rockhampton) says that he was contacted by the Applicant’s father on or around 20 October 2009. Mr Golby was unable to assist at the time as he was in the process of representing a Union member who had also been dismissed along with the Applicant and under similar circumstances. Mr Golby says that he advised Mr B. McIntyre that he should leave the matter with him and, if he was successful with the other reinstatement, he might be able to assist the Applicant.
[11] Mr Golby states that on or around 2 November 2009 he advised Mr B McIntyre that, because of the particular circumstances surrounding the outcome achieved by the other dismissed employee, he was unable to assist the Applicant. When the Applicant was advised of this, two weeks had elapsed since the initial contact with Mr Golby.
[12] The Applicant says that neither Legal Aid Queensland nor Mr Golby advised him of any time constraints with concerning the filing of his unfair dismissal application.
[13] On 3 November 2009, the Applicant’s father made contact with a solicitor. Neither the Applicant nor his father could attend the appointment with the solicitor until 9 November 2009 and this was “due to Daniel and my work schedule and fitting this in with an open appointment with Duffield & Associates Solicitors”. 2 The solicitor filed the application for an extension of time two days later on 11 November 2009.
[14] The Applicant said he could not have attended the meeting with the solicitor on his own prior to 9 November 2009 because of his limited finances and because he was apprehensive and uncomfortable with legal matters and documents generally. Mr B McIntyre’s affidavit supports this proposition.
[15] Mr B McIntyre lives in Gladstone, while the Applicant lives in Rockhampton and the Applicant submits that it was not easy for Mr B McIntyre to attend to business in Rockhampton upon short notice.
[16] The Applicant says that he was first advised of the time constraints for filing an unfair dismissal application by this solicitor on 9 November 2009.
[17] The Applicant states that at all times he was expeditiously pursuing his claim that he had been unfairly dismissed by the Respondent.
[18] It has been acknowledged, in the Applicant’s submissions, that there were “elements of a representative error within the explanation for the delay”. 3
Applicant’s submissions – point 15 reads as follows:
Furthermore, although not a member of the Union, the Applicant had placed significant reliance upon the Union in a representative capacity at an early stage. The Applicant clearly instructed the Union to make inquiries of the Respondent that challenged the basis of the dismissal. At no time did the Union advise the Applicant of the 14-day default time limit or its potential to inhibit the access to remedies. Thus, there are also elements of a representative error within the explanation for the delay. That too has been held in observance of the Principles to amount to a satisfactory explanations for a delay.
[19] The Applicant says that his conduct, at all times {ie in contacting Legal Aid Queensland and with the Union} is analogous with that of advancing an application in the wrong jurisdiction only to find out later (after the expiry of the time limit) that the application must be filed in a different jurisdiction. In such matters the FWA’s predecessor, the AIRC has held that such conduct amounts to a satisfactory explanation for the delay”. 4 [See Butler v 85; Engelaar v Clipsal Australia Pty Ltd (2008) 60 ALIR 100-830(6); [2008] AIRC 388; Casari v Sydney South West Area Health Service (2008) 60 AILR 200-362; [2007] NSWIRComm 249
Whether the person first became aware of the dismissal after it had taken effect
[20] This consideration does not arise in the circumstances of this case.
Any action taken by the person to dispute the dismissal
[21] The steps taken by the Applicant to dispute the dismissal have been cited – ie approaching Legal Aid Queensland; through his father contacting the Union and finally contacting a firm of solicitors.
Prejudice to the employer
[22] The Respondent says that it would not suffer and specific or special detriment by the late filing of the application.
Merits of the application
[23] On October 2009, the Applicant was summarily dismissed by the Respondent.
[24] The Applicant claims that the Respondent had told him that work performed on the the faulty scaffolding had occurred on 24 June 2009. On that date the Applicant says that could establish, through witness evidence, that he was working some six kilometres away from the site and had no involvement in the construction of that scaffolding.
[25] The Respondent says that the date of 24June 2009 is irrelevant to the debate. It says that company records show that the construction of the scaffolding in question was completed by 23 June 2009 and that the Applicant was at the appropriate site during that timeframe.
[26] The affidavit of Mr Patrick Watson (Employee Relations Lead for the Respondent) claims that the scaffold in question was constructed by a team which included the Applicant in June 2009.
[27] It was not until 13 October 2009 that an accident occurred, revealing a serious mistake in the erection of the scaffolding.
[28] A safety investigation revealed that the cause of the accident was the defective construction of the scaffold. The Respondent’s records show that the scaffolding had been erected during the period 18 to 23 June 2009. 5
[29] The daily time sheet summary identifies the Applicant working in a particular part of the plant on a particular day covering the period from 15 June to 3 July 2009. [PMW-2]
[30] On the days when the scaffold in question was being constructed, the Respondent’s records show that the Applicant was working at what was identified as either “AH” or “490”. Both AH and 490 are in the same location and site upon which the scaffolding was erected in June 2009.
[31] The Applicant denies any involvement in the construction of the faulty scaffolding.
[32] The Respondent says that the safety investigation identified problems with the scaffold and as a consequence management representatives met with the scaffolding team, which included the Applicant. 6
[33] Members of the scaffolding team were advised that there would be disciplinary consequences for their actions and all were provided with the opportunity to explain their particular circumstances.
[34] The Applicant’s response was that he had not been at the site (ie on 24 June 2009) and that the Respondent could not prove otherwise.
[35] As the Applicant had received a first and final warning on 8 July 2009 (which has not been challenged by the Applicant in his submissions) relating to a prior serious safety incident, the Respondent determined to terminate his employment.
[36] Even if the work on the scaffolding had occurred prior to 24 June 2009, the Applicant’s defence to the claim that he was in the team involved in constructing the scaffolding was that proof could only be ascertained through witness evidence which he could provide.
[37] The Applicant asserts that the Investigation Report upon which Mr Watson relies states at Part 4(b) – Limitations, that:
“Due to multiple teams working on the RPO4/4 vessel scaffold no factual evidence could be obtained giving specific reasons why the scaffold was in this condition. Therefore, the investigations could only ascertain that the scaffold was incomplete to project requirement for reasons unknown.”
Part 5 – Conclusion, it is noted that:
“The incident occurred primarily as a result of the scaffold planks not being adequately secured. As to how the scaffold planks came to be in this condition could not be ascertained due to the limitation of available information.”
[38] The Applicant states that there has been no conclusive evidence to prove that the he had been involved in the construction of the subject scaffold.
Fairness with others
[39] The Applicant says that the application is out of time by a short period of time. The delay had not put the Respondent unfairly to any inconvenience or cost. The reasons for the delay were acceptable and it would be ‘inarguable’ to say that the granting of the one-week extension sought would encourage other Applicants to flout the 14-day default time period.
[40] The Respondent states that the Respondent was required to file his application by close of business on Tuesday 3 November 2009. It states that the Tribunal should be guided by the principles as espoused by Marshall J in Brodie-Hanns v MTV Publishing Limited[1994] 67 IR 298 at 299 where it is stated, inter alia, that:
“Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.”
CONCLUSION
[41] It is accepted that the principles to be applied by the Tribunal in considering whether to grant an extension of time application are those set out in Brodie-Hanns v MTV Publishing [1995 67 IR 298]. They are as follows:
1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2. Action taken by the Applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.
4. The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.
The reason for the delay
[42] The Applicant’s reasons for the delay have been outlined.
• The Respondent says that “there was nothing in these circumstances beyond the Applicant’s control that accounted for the delay” 7
• The Respondent claims that it can be inferred from the Applicants’ evidence that he was aware that he had to act quickly. This was evidence by the Applicant’s contact with Legal Aid Queensland on the day following the termination of his employment.
• Even after contacting the Union, there could have no expectation on the Applicant’s part that the Union could assist as he was not a member and all that the Union official, Mr Golby, had offered was that he would “see what I could do help Daniel”.
• The Respondent states that the Applicant then let two weeks elapse before his father was advised by Mr Golby that he could be of no assistance.
• There was a delay of one week after contacting the solicitor before both the Applicant and his father formally consulted with the solicitor.
• In essence, the Respondent claims, that between 21 October and 9 November “the Applicant took no action to enquire about the circumstances in which an application for unfair dismissal could be made, despite a general awareness, indicated by his approach to Legal Aid, that he should be proactive in terms of any action he might take.” 8
[43] I have considered all of the submissions made around this point. The time period in question is not extensive and in my view the Applicant took proactive steps to pursue his claim for unfair dismissal. The fact that some attempts to gain assistance did not succeed does not detract from the apparent intent of the Applicant to pursue his claim. The longest delay of some two weeks after requesting assistance from the Union is understandable to this extent – Mr Golby was involved on behalf of a member in a similar dismissal at the same workplace. It was not unreasonable for the Applicant to await further communication from Mr Golby in these circumstances.
[44] Immediately after this, the Applicant sought assistance from his solicitor. There was a delay of one week before a formal consultation occurred. The Applicant’s explanation that he wanted to attend this meeting with his father because of monetary constraints and his apprehension about discussing legal matters is acceptable. Coupled with this is the fact that his father lived in a town outside of Rockhampton.
[45] I am satisfied, on balance, that an acceptable explanation has been provided for the delay.
Action taken by employee to contest the termination
[46] The action taken by the employee to contest his dismissal has been detailed. I am satisfied that the Applicant did contest his dismissal other than by lodging an unfair dismissal claim.
Prejudice to the Respondent
[47] The Respondent has stated that it would suffer no real detriment as a result of the delay.
Merits of the application
[48] There is clearly conflict between the parties as to the facts surrounding this matter.
[49] It is not possible, on the basis of the evidence before me to say that the application is without merit.
Fairness as between the Applicant and other persons in a like situation
[50] The Applicant has provided an acceptable explanation for the delay. There is no need for any further consideration of this principle.
[51] Having considered all of the material before me, in light of the principles enunciated in the Brodie Hanns decision, I have concluded, on balance, that I am prepared to exercise my discretion to extend the time to allow for the proper lodgement of the application.
[52] An order giving effect to this decision will be issued separately on PR996138.
DEPUTY PRESIDENT
1 DCMI annexure from Statement of Applicant
2 Applicant’s Affidavit point 8
3 Applicant’s submissions – point 15
4 Presbyterian and Methodist Schools Association (PMSA) (2008) 60 AILR 100-862(11)] ; [2008] AIRC 1139; Bonney v Mannway Logistics Pty Ltd (2008) 60 AILR 100-875(20); [2008] AIRC1095; McGarrigle v BGC Contracting Pty Ltd (2008) 60 AILR 100-875(16); [2009] AIRC 666; Meneses vTown of Vincent (2006) 58 AILR 100-543(17); [2006] AIRC 670; Dewar v Wing Flexible Packaging Pty Ltd (2008) 60 AILR 100-899(8); AIRC 785; Comcare v A’Hearn (1993) 119 ALR Presbyterian and Methodist Schools Association (PMSA) (2008) 60 AILR 100-862(11)] ; [2008] AIRC 1139; Bonney v Mannway Logistics Pty Ltd (2008) 60 AILR 100-875(20); [2008] AIRC1095; McGarrigle v BGC Contracting Pty Ltd (2008) 60 AILR 100-875(16); [2009] AIRC 666; Meneses v town of Vincent (2006) 58 AILR 100-543(17); [2006] AIRC 670; Dewar v Wing Flexible Packaging Pty Ltd (2008) 60 AILR 100-899(8); AIRC 785; Comcare v A’Hearn (1993) 119 ALR
5 PMW-1
6 PMW-1
7 Robin Falloon v Professional Investment Services Pty Ltd – 21 June 2007, PR97732 at 6.
8 Respondent’s submissions – point 15
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