David Emery v Fleetwood Corporation Limited

[2013] FWC 9752

[2013] FWC 9752

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

David Emery
v
Fleetwood Corporation Limited; Benjamin Gra Rosser; Pauline O’Connor
(C2013/5859)

DEPUTY PRESIDENT MCCARTHY PERTH, 12 DECEMBER 2013

Application to deal with contraventions involving dismissal - extension of time.

[1] Mr David Emery (the Applicant) lodged an application for the Fair Work Commission (FWC) to deal with a general protection dispute (the Application) with respect to his employment by Fleetwood Corporation Limited (Fleetwood). The Applicant asserts that he was dismissed from his employment, and in doing so, Fleetwood contravened various sections of Part 3-1 of the Fair Work Act 2009 (the FW Act). The Application also named Mr Benjamin Gra Rosser as a second respondent (Respondent 2) and also Ms Pauline O’Connor as a third respondent (Respondent 3). The Application was lodged on 2 September 2013, the Applicant was represented by Equitas Lawyers.

[2] On 10 September 2013, representatives for Fleetwood, Clayton Utz, lodged an Employer’s Response. Fleetwood objected to the Application on the grounds that the Applicant had not complied with the statutory limit for making the Application as prescribed by s.366(1) of the FW Act. The Application stated that the Applicant was dismissed on 1 July 2013; therefore the Application was lodged approximately seven weeks beyond the time allowed.

[3] I conducted a conference on 18 October 2013 where the Respondents requested that I deal with their jurisdictional objection before dealing with the matter further. I agreed with the approach suggested by Fleetwood and have decided to proceed on that basis.

[4] I explored with the parties how they wished for the jurisdictional issue to be dealt with and it was agreed that the parties would rely on the documentation that had already been lodged. That documentation included a comprehensive affidavit sworn by the Applicant. Fleetwood’s representative declined the opportunity to cross examine the Applicant on that affidavit. The Applicant’s representative also indicated that they did not want to lodge any further witness statements. Fleetwood’s submissions were contained in the Employer’s Response to the Application. No affidavits were provided by the Respondents.

[5] Fleetwood operates in the mobile accommodation market focusing on the recreation, retirement and resources sectors. The Applicant has been employed full-time by Fleetwood continuously from May 2006 in a variety of roles, and immediately prior to his dismissal he was employed as a Site Supervisor/Manager at the Karratha Searipple mining site (Searipple). In that role the Applicant was responsible for managing the site and about 50 people who reported directly to him at the site, and a further six who reported directly to him who are located at the head office in Perth.

[6] The Applicant asserts his employment was terminated on 1 July 2013. A written notice of dismissal dated 1 July 2013 was attached to the Employer’s Response which stated that the letter served as confirmation of the Applicant’s dismissal and took effect immediately. It was signed by Mr Ben Rosser, the Chief Executive Officer of Fleetwood.

Reason for the Delay

[7] The Applicant stated that he felt that his termination was unlawful, but was unsure what action was available for him to take. He made his own enquiries and checked the websites of the Fair Work Ombudsman (the Ombudsman) and the FWC. The Applicant used the FWC online unfair dismissal eligibility test, but found it difficult to answer. For example, he was unsure as to whether his employment was covered by an award or not. He also had difficulty finding any information directly relevant to his situation.

[8] The Applicant also made enquiries by telephoning the FWC Info-line on three occasions. He says that when he first made contact in late June 2013 he was told that no assistance would be provided to him as he was not eligible to receive their (the FWC’s) services. He made two further enquiries before 10 July 2013, and again explained his situation, and was again told no assistance would be provided to him.

[9] It seems the Applicant had engaged solicitors by that time but was making his own enquiries, notwithstanding that engagement, as he wanted to minimise his legal costs. He stated that the initial advice he received was that a breach of contract claim should be filed with the District Court, however he was warned that legal costs and disbursements could be claimed against the unsuccessful party.

[10] The Applicant stated he instructed his solicitors to try and negotiate something with Fleetwood, but following an exchange of correspondence it became clear that Fleetwood would not agree to any settlement.

[11] The Applicant then considered whether he could afford to pursue a claim before the courts and decided to complete he and his wife’s tax returns to establish the amount of refund they would receive and whether they could afford to pay for the legal fees. The Applicant states he received a group certificate at the beginning of August 2013 and immediately lodged a tax return, and by that time knew his estimated tax refund.

[12] On or about 13 August 2013, the Applicant then instructed his solicitors to prepare the necessary documents to file a claim with the court.

[13] The Applicant stated that he then went back to his solicitors and asked them if there was any other avenue short of going to the court to pursue Fleetwood. The Applicant says his solicitors then sought legal advice from a barrister with expertise in these types of matters and after receiving that advice, he immediately instructed his solicitors to prepare the necessary application in the FWC.

[14] Fleetwood stated that the Applicant should have been aware from his visits of the Ombudsman and FWC websites on three separate occasions, before 10 July 2013, that he had 21 days to lodge a claim in relation to the termination of his employment in the FWC. They also say that he should have known from the questions on the “[a]m I eligible to make an application test” on the FWC website about the 21 day obligation.

[15] Fleetwood are also critical of the Applicant waiting until after he filed his tax return in August 2013 to assess his financial situation before making a decision to progress the claim. They say that the Applicant’s signed affidavit made it clear that he did not instruct solicitors to take any action towards commencing a claim against Fleetwood until about 13 August 2013, and furthermore, it was not until sometime after that date that advice was sought from a barrister with a background in employment law.

[16] Fleetwood asserts that by the Applicant’s own admission, the delay in filing the application was primarily due to the conduct of the Applicant, such as waiting for his tax return.

[17] In my view, the explanations by the Applicant regarding the reasons for the delay do not display any reason for the delay other than the Applicant weighing up his options and considering his financial position before deciding which of those options to pursue. It is unclear what advice he received from the solicitors and it is not stated that he was advised not to lodge a claim with the FWC. It also seems that before he obtained that initial advice, he had visited the relevant websites and should have been made aware with even a modicum of effort that the 21 day time limit existed. He should also have been aware of that and raised it when he held discussions with the FWC Info-line.

[18] The reasons for the delay therefore do not, in my view, assist the Applicant in establishing that exceptional circumstances exist.

Any action taken by the Applicant to dispute the dismissal

[19] The Applicant says that he took actions, including disputing the justification for his termination of employment when he was first informed of it, and by instructing his solicitors to write to Fleetwood to challenge his summary termination and to negotiate a settlement. Fleetwood responded to that letter on 30 July 2013 and made it clear that the decision would stand and that they did not wish to have a meeting in regard to the Applicant’s requests.

[20] The Applicant then says that on 23 August 2013, he instructed his solicitor to write to Fleetwood and request copies of various documents which he clearly intended to use in any claim he may make against them. It seems that between 30 July 2013 and 23 August 2013 the Applicant took no other actions other than, of course, as he stated above completing his taxation returns.

[21] Fleetwood state that from the Applicant’s affidavit, it is clear that there were several periods where no action was taken by the Applicant, including waiting until he had completed his tax return and not seeking any other advice regarding any other avenues for pursuing a claim until after 13 August 2013.

[22] It does not appear to me that the Applicant took any substantive steps to dispute his dismissal until at the earliest when the first letter to Fleetwood was sent on 22 July 2013, notably the last day on which he could have lodged a claim within the time frame allowed by the FW Act. However, what was really being sought by the letter of 22 July 2013 was a settlement. Clearly the Applicant should have lodged a claim on, or before, that day and then sought a settlement. There is no evidence that he was responding to advice in approaching the matter in the way in which he did, but even if he was responding to advice he should have been well aware by that time of the 21 day obligation.

[23] Furthermore, Fleetwood made its position clear, in a fairly timely way, in response to the Applicant’s letter of 22 July 2013. It was not until some weeks after that that the Applicant took any further action in respect of any claims against Fleetwood.

[24] Therefore, I do not consider that the actions taken by the Applicant, to the limited extent that he did take actions, assist him in establishing that exceptional circumstances exist.

Prejudice to the Respondent

[25] The Applicant asserts that an extension of time would not be prejudicial to Fleetwood. In support of that position he referred to the size and nature of Fleetwood and the Fleetwood Corporation.

[26] Fleetwood assert that there would be a prejudice through the incurring of costs and resources in defending the Application.

[27] I do not consider that Fleetwood’s argument weighs against extending the time.

Merits of the Application

[28] The Applicant outlined, in a lot of detail, the circumstances which he had complaints about with respect to his employment and various inadequacies. For example, he referred to his request for extra staff as he was strongly of the view that Searipple was understaffed, and an inadequate and inappropriate response to that request was provided by the provision of two 17 year old youths who were inexperienced in the work. Another example was the Applicant’s assertions that Fleetwood failed to provide adequate supervision in unloading trucks at the Meekatharra site and as a consequence, significant damage was incurred.

[29] Indeed a large part of the Applicant’s affidavit referred to complaints of one type or another, or incidence of one type or another, where he had raised issues that had not received adequate responses or support from more senior management.

[30] The Applicant also outlined a series of matters under the heading “[i]ssues regarding workplace health and safety”. The main issue involved here related to the living away from home allowance standard conditions and the Applicant’s apparent dispute with Fleetwood that his staff were not receiving a roster of 21 days on and seven days off, which he asserts was standard. The Applicant says he raised this issue in an email in late February or early March 2013, but received no response. Under the heading “[i]ssues regarding rest and recreational entitlement” the Applicant outlined a series of interactions and communications with Respondent 2 and Respondent 3 which appear to relate to the Applicant raising issues about entitlements he believed he was entitled to. This eventually resulted in a new letter of conditions being established, which the Applicant signed. He says that at the time he stated that he was signing against his will but believed if he did not he would be dismissed.

[31] The Applicant also outlined detailed meetings he had had with Respondent 2 and Respondent 3, and in particular a meeting conducted on 21 June 2013. The Applicant says that he had no warning about the purpose of that meeting. He says he was told at that meeting that he was being dismissed because of damage to the telehandler used at the Searipple site the previous month. Discussions at the meeting appear to have concluded on the basis that the Applicant was told he should go home and think about his future and get back to Respondent 2 and Respondent 3.

[32] It is clear from the Applicant’s affidavit that he felt that he was being pressured into resigning and that he was not prepared to voluntarily resign, although from his description it would more likely have been an involuntary resignation.

[33] The Applicant also outlined in some detail the procedures adopted by the Respondents leading up to his dismissal.

[34] The Applicant outlined seven grounds that he says were adverse action by Fleetwood taken against him, nine grounds of adverse action taken against him by Respondent 2 and eight grounds of adverse action taken against him by Respondent 3. The grounds essentially relate to refusal to resign and coercion to resign, the Applicant seeking entitlements relating to rest and recreation and living away from home allowance provisions, complaints by the Applicant of unsafe working conditions and complaints about the effects on the Applicant’s family responsibilities due to his absences from home.

[35] The Respondents state that there is not sufficient merit in the application and, in particular, the Applicant has not provided adequate particulars of the workplace right transgressed, or exercised, by the Applicant and the basis upon which the Applicant alleges that any action by the Respondents was taken because of the workplace right transgressed or exercised by the Applicant. I disagree with the Respondents’ portrayal of the Applicant’s grounds. The affidavit by the Applicant clearly outlines a series of matters that he asserts related to him exercising workplace rights and adverse actions taken against him including an adverse action by terminating his employment. The Respondents brief consideration and outline of its view of the merits does not address what are clearly allegations and explanations of the reasons and grounds for those allegations.

[36] Therefore, it appears to me there is merit in the Application and this element of my considerations weighs in favour of the Applicant. In the absence of any response to the specifics of the allegations, it is difficult to ascertain the strength of the merit, and of course in the absence of hearing any evidence and making any findings, I cannot form a concluded view of the degree of merit in the Application.

Fairness between the Applicant and other persons in the like position

[37] The only submission the Applicant made in respect of this criteria was that, as far as he knew, there are no other employees affected or in a similar position to him. The Respondents submitted that if the Application was granted, an extension of time would create unfairness between the Applicant and other previous applicants in a similar position, who have not been granted an extension of time.

[38] It seems that the Applicant misunderstands the purpose of this criterion. The purpose has been stated to ensure that applicants in similar circumstances are treated in a consistent manner for the purposes of determining whether exceptional circumstances exist.

[39] It appears to me that it would not be fair for other persons if this Application was allowed. Firstly, other persons routinely, whether represented or not, comply with the obligations to lodge an application of this nature within the time frame allowed. Secondly, it would not be fair to other persons who lodge their applications within the time allowed, either incurring expense especially if they are represented, and assessing and managing their financial affairs within that timeframe.

[40] This element of my considerations weighs against the Application being allowed.

Conclusion

[41] After considering each of the elements I have outlined above, I find that exceptional circumstances do not exist. I therefore will not allow the Application.

DEPUTY PRESIDENT

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