David Saunders v QPL Ltd
[2010] FWA 2714
•9 APRIL 2010
[2010] FWA 2714 |
|
DECISION |
Workplace Relations Act 1996
s.643—Termination of employment
David Saunders
v
QPL Ltd
(U2010/5971)
COMMISSIONER HAMPTON | ADELAIDE, 9 APRIL 2010 |
Unfair termination application – Dismissal in 2007 – Earlier application filed in 2007 and discontinued – Fresh application filed in 2010 - Law at time of dismissal to be applied – Whether extension of time to lodge application should be granted – Whether applicant excluded from the Act by virtue of the length of service and the size of the employer – Some explanation for delay provided but not reasonable or sufficient in all of the circumstances – Prima facie merit in application but statute barred on multiple grounds – Extension of time not granted – application dismissed.
Introduction
[1] This is an application by Mr David Saunders (the applicant) alleging an unfair termination of employment. The applicant was dismissed by QPL Ltd (the respondent) on 14 September 2007. This application was lodged on 15 February 2010 and the applicant has sought an extension of time within which to make the application.
[2] The respondent has opposed the extension of time request and objected to the application on the basis of a number of jurisdictional exclusions. All of these matters have been heard as preliminary points.
The hearing
[3] Although the relevant legislation 1 enables me to deal with the extension of time application without conducting a hearing, I considered that a hearing would be appropriate given the circumstances of the parties, the consideration of the jurisdictional issues and the history of the matter.
[4] Both parties were without legal or professional representation and in light of some apparent uncertainty as to the scope and nature of the hearing I also caused some guidance material to be provided to both parties in advance of the scheduled hearing. That material outlined the nature of the proceedings, confirmed the scope and nature of issues to be resolved and emphasised the value of sworn evidence where facts were in dispute.
[5] During the hearing I received evidence from both parties in the form of documentation and statutory declarations and heard submissions.
The background
[6] Drawing upon the material before me the following background emerges. I will leave some of the details on matters critical to the preliminary issues for later consideration.
[7] The respondent is for present purposes, a labour hire company and as such supplies labour to various clients when requested. The applicant entered into a contract with the respondent on 3 July 2007. Although the relationship in the contract was styled as being that of “an independent contractor”, the respondent accepts for present purposes that the legal relationship with the applicant was that of employment. What is clear is that the contract meant in effect that the applicant was on the books of the respondent and that when a relevant request for labour was received from a client, the respondent may then offer the applicant an “assignment”. The assignment represented an engagement as an employee for present purposes.
[8] The first and only such assignment was on 3 September 2007 and involved the applicant being engaged to work in a call centre operated by a company known as Contact 121.
[9] There is no indication that any performance or disciplinary issues arose during the assignment however there were some delays with the applicant’s pay being received into his nominated bank account. This did cause some difficulties for the applicant and lead him to check his banking records at his workplace during breaks.
[10] The applicant was dismissed by the respondent on 14 September 2007. There is a dispute about the reasons for that decision. The applicant contends that he was dismissed at the behest of Contact 121 and that he was told at the time that this was because he had checked his banking records whilst at work. The respondent contends that he was dismissed because he was no longer required by Contact 121 and as a result, the assignment concluded.
[11] The applicant filed an application pursuant to s.643 of the Workplace Relations Act 1996 (the WR Act) on 24 September 2007 (the 2007 application) and this cited Contact 121, the respondent and another company (which the call centre was apparently working for at the time) as respondents in that matter. The address and other details given for the respondent party in that application were those of Contact 121.
[12] Given the apparent confusion in the identity of the respondent in the 2007 application, the staff of the then Australian Industrial Relations Commission (AIRC) advised the applicant that the application would be sent to the address on the form, being Contact 121. The applicant took the view that this was advice that he should proceed against Contact 121.
[13] The applicant had earlier contacted the respondent in this matter on 17 September 2007 and advised that he would “be suing” them.
[14] The 2007 application was listed for a conciliation conference on 23 October 2007. On 12 October, Contact 121 filed a notice to dismiss the application for want of jurisdiction on the basis that it was not the employer of the applicant. The conciliation conference proceeded on 23 October 2007 however the applicant did not attend. There is no explanation as to why the applicant did not attend that conference.
[15] Later on 23 October 2007, the AIRC Member dealing the 2007 application issued directions advising, amongst other matters, that the applicant had earlier been reminded of the need to attend the conference, that a jurisdictional objection had now been lodged by Contact 121, and that an explanation of the applicant’s non-attendance and intentions to proceed was sought. The applicant was advised that the absence of a satisfactory response may lead to the dismissal of the application.
[16] The applicant advised the AIRC by email on 25 October 2009 that in effect he had taken the application against Contact 121 because he was advised to do so by its staff. He also advised that “in fact I give up with the IRC” and that he would not show up (to future proceedings). The applicant later indicated that he would be taking the issue up with other authorities.
[17] On 26 October 2007, the relevant AIRC Member confirmed to the applicant that the AIRC had taken him to withdraw the application and all scheduled hearings were cancelled. Based upon the applicant’s evidence in this matter, he accepted that he had in effect withdrawn or discontinued that application, based primarily on the understanding that he may be required to pay the respondent’s costs if he was unsuccessful. 2
[18] It is unnecessary to outline all of the actions then taken by the applicant to pursue his concerns about his dismissal. It is sufficient to note that in March 2008, the applicant lodged a complaint against the respondent with the then Workplace Ombudsman. In April 2008, the Workplace Ombudsman formally advised the applicant that it had no jurisdiction to deal with the matter and that he should pursue it with the AIRC.
[19] In due course, the applicant wrote again to various politicians and authorities about his concerns and in early June 2008 the Workplace Ombudsman again confirmed advice that the applicant should, if he wished to purse the matter, contact the AIRC. In late 2009 or early 2010, the applicant again contacted the Workplace Ombudsman and I understand that that office actually assisted the applicant to complete and make this application.
[20] As outlined earlier, this application was filed on 15 February 2010.
Which law is to be applied?
[21] Fair Work Australia (FWA) is of course established by and operates under the Fair Work Act 2009 (the FW Act) and related legislation.
[22] Item 11 of Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) provides that the WR Act continues to apply in relation to conduct that occurred before the repeal of the WR Act on 1 July 2009. Item 12 of Schedule 2 to the TPCA Act also provides that FWA takes over the role of the former AIRC in applying the WR Act.
[23] As the termination of the applicant’s employment took place in 2007, I am satisfied that the relevant terms of WR Act apply in this matter.
The extension of time
[24] In general terms, the obligation to demonstrate that an extension of time to lodge the application should be granted lies with the applicant. Section 643 of the WR Act provides relevantly as follows:
(14) An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days.
(15) An application under subsection (2) or (4) must be lodged within 21 days after the employee is given notice of the decision to terminate the employee’s employment, or within such period as the Commission allows on an application made during or after those 21 days.
Note: In Brodie-Hanns v MTV Publishing Ltd, (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”
[25] The principles that are to guide the consideration of an extension of time application as outlined in Brodie-Hanns are set out below: 3
(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 for the delay which makes it equitable to 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.
[26] Although the discretion to extend the time for lodgement requires an overall consideration as summarised in (1) above, it is convenient to consider this application under four headings.
The explanation for the delay
[27] The extension of time required in this case is of course very long by comparison with the period contemplated by the Act. During that time, the applicant did at times make efforts to contest his dismissal. This included the 2007 application, the approach to the Workplace Ombudsman and more indirectly, to various politicians and government agencies.
[28] In terms of the 2007 application, I accept that the applicant may well have been unclear as the identity of his legal employer. At the very least, the respondent (which recruited and paid him) and Contact 121 (where he actually attended for work) may in his mind have been relevant. The decision by staff at the AIRC to send the 2007 application to the address nominated on the application was clearly reasonable in the circumstances but was interpreted by the applicant as advice that he should only pursue that party.
[29] In the end the applicant did discontinue the 2007 application. Whilst there are unsatisfactory elements of the applicant’s conduct of that application, the making and withdrawal of the 2007 application should not of itself, in these particular circumstances, prejudice the applicant in this matter.
[30] More importantly, the applicant had identified the respondent as his employer from as early as September 2007 and he clearly knew, as a result of the 2007 application, how to make application against the respondent. Further, the applicant was informed in April and June 2008 about the appropriate manner to advance his claims against the respondent. There is no satisfactory explanation as why he did not do so.
[31] There were long periods after the applicant had received advice that he should pursue the matter with the AIRC when he took no action to advance his complaint in that way. As I understand the applicant’s contentions, at some stage he took the view that the FW Act adopted a fairer approach to unfair dismissal matters and that he might then attempt to make his application. It is also apparent that the applicant had a perception that the prospect of costs being awarded against him would not be such a factor under the FW Act. There is still no indication that the applicant proceeded to explore this application with any urgency after forming that view.
[32] Having regard to the whole of the applicant’s explanation for the delay, I find that there is some explanation for elements of the delay but that it is not robust or reasonable in all of the circumstances.
The applicant’s attempts to contest the dismissal
[33] I have in part dealt with this above. The applicant has attempted to contest his dismissal, off and on, since 2007. This has not been done in a very effective or constructive manner and given his awareness of the potential to make this application against the respondent for most of the delay in question, these attempts do not favour an extension being granted in this manner.
Prejudice to the respondent
[34] The respondent contends that it would be prejudiced by the delay if the matter proceeded to be heard on its merits. This was based on the fact that staff of the respondent who were involved at the time were no longer employed by them.
[35] I understand from submissions that these former staff members remain contactable and may be summonsed to attend any hearing if required. However, given the passage of time since 2007, the memories of witnesses and the availability of contemporary evidence such as notes and potential video footage of the events immediately after the dismissal becomes more problematic.
The merit of the application
[36] The merit of the application for present purposes is often taken to mean whether the applicant’s case as contended is not without merit. The applicant contends that he was dismissed for reasons associated with his accessing of his own bank records from his workplace. The dismissal was also said to have been conducted in an inappropriate and unfair manner. Based upon the information available to it, the respondent denies most of those allegations. It is not appropriate that I make findings about these matters in the absence of a proper hearing.
[37] The short-term and rather contingent nature of the applicant’s employment may be a significant factor should the matter proceed. However, whilst not overwhelming, it is sufficient for me to find that the applicant’s contentions as to the nature of the dismissal are not without merit.
[38] In this matter, I have also heard the parties on the preliminary jurisdictional point given the history of affairs. For reasons that will become apparent, the application could not be heard on its merits in any event given the exclusions that relevantly operate under the WR Act.
Fairness as between the applicant and other persons
[39] This is not a significant factor in this case and nothing has been put to me on this aspect.
Should an extension of time be granted?
[40] Having considered all of the circumstances of this matter I am not persuaded that an extension of time for the lodgement of this application should be granted.
The jurisdictional exclusions
[41] Given the absence of an extension of time, it is not necessary or appropriate to formally determine the jurisdictional questions. However, as they have been fully argued and formed part of my consideration of the extension of time issue, some comments may assist the parties, and the applicant in particular, to understand his circumstances.
[42] The Commonwealth Parliament has determined that the jurisdiction (the capacity and power of the Tribunal) to deal with unfair dismissal applications is to be limited. That is, some applications alleging unfair dismissal will not be considered in certain circumstances, even when they apparently have merit in terms of the unfair nature of the dismissal.
[43] Sections 643(6) and (7) of the WR Act provide as follows:
(6) An application under subsection (1) must not be made on the ground referred to in paragraph (1)(a), or on grounds that include that ground, unless the employee concerned had completed the qualifying period of employment with the employer at the earlier of the following times:
(a) the time when the employer gave the employee the notice of termination;
(b) the time when the employer terminated the employee’s employment.
(7) For the purposes of subsection (6), the qualifying period of employment is:
(a) 6 months; or
(b) a shorter period, or no period, determined by written agreement between the employee and employer before the commencement of the employment; or
(c) a longer period determined by written agreement between the employee and employer before the commencement of the employment, being a reasonable period having regard to the nature and circumstances of the employment.
[44] The application in this matter is based on the ground that the dismissal was harsh, unjust or unreasonable. That is ground (1) as referred to in s.643 of the WR Act.
[45] There is no indication that an alternative qualifying period had been agreed between the parties. The applicant was employed on the assignment at Contact 121 for a period of two weeks. I note that the actual length of the applicant’s service has not been disputed in either application. However, even if the original contract date was taken to be the commencement of employment (which would not be appropriate in my view) the employment of the applicant would have been for less than the required six months qualifying period.
[46] Section 643(10), (11) and (12) of the WR Act also provide as follows:
(10) An application under subsection (1) must not be made on the ground referred to in paragraph (1)(a), or on grounds that include that ground, if, at the relevant time, the employer employed 100 employees or fewer, including:
(a) the employee whose employment was terminated; and
(b) any casual employee who had been engaged by the employer on a regular and systematic basis for at least 12 months;
but not including any other casual employee.
(11) For the purposes of calculating the number of employees employed by an employer as mentioned in subsection (10), related bodies corporate (within the meaning of section 50 of the Corporations Act 2001) are taken to be one entity.
(12) For the purposes of subsection (10):
(a) the relevant time is the time when the employer gave the employee the notice of termination, or the time when the employer terminated the employee’s employment, whichever happened first; and
(b) for the purposes of calculating the number of employees employed by the employer, employee has the same meaning as in paragraph (b) of the definition of that term in section 636.
[47] The evidence before me is sufficient to indicate that the respondent employed less than 100 employees within the meaning of s.643(10) of the WR Act at the time of the applicant’s dismissal.
[48] In addition, ss.638(1)(d) and (4) of the WR Act also operate to exclude a casual employee with less than twelve months service from making an application to invoke the unfair dismissal jurisdiction as sought by the applicant. The applicant’s employment was certainly casual in nature and his service as an employee was also clearly less than the required period to overcome this exclusion.
[49] All of these three exclusions apply to the circumstances of the applicant and any one of these is sufficient to prevent the application being dealt with on its merits.
[50] Accordingly, this application, even if it were able to proceed, would be one of those applications that Parliament has determined is not to be dealt with by the Tribunal.
[51] I also note that even if the relevant provisions of the FW Act applied, which is not the case, an unfair dismissal application of this nature could also not be pursued by a dismissed employee with the length of service of the applicant in this case. 4
Conclusion
[52] In all of the circumstances, I am not persuaded that an extension of time for the lodgement of this application should be granted. Accordingly, the application must be dismissed.
COMMISSIONER
Appearances:
The applicant in person.
L Nylund, Managing Director of QPL Limited for the respondent.
Hearing details:
2010
Adelaide with a video link to Sydney.
March 25.
1 Section 647 of the Workplace Relations Act 1996.
2 Transcript PN172 – PN179
3 A copy of the Brodie- Hanns decision was provided to the parties in advance of the hearing.
4 Section 383 of the FW Act provides a minimum period of employment in relation to an unfair dismissal application to FWA.
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