Doug Cooper v Statseeker Pty Ltd T/A Statseeker

[2017] FWC 2654

[2017] FWC 2654

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Doug Cooper
v
Statseeker Pty Ltd T/A Statseeker
(U2017/1090)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 MAY 2017

Application for relief from unfair dismissal - application not made in accordance with the Fair Work Act 2009 - irregularity in the application waived.

[1] Mr Doug Cooper made an application for unfair dismissal remedy on 3 February 2017 under s.394 of the Fair Work Act 2009 (the Act). In its Form F3 Employer Response filed on 17 February 2017, Statseeker Pty Ltd T/A Statseeker (Statseeker) objected to the application because it was made during Mr Cooper’s notice period and prior to the effective date of his dismissal.

[2] By letter dated 16 January 2017, Mr Cooper was notified that his employment was being terminated due to alleged unsatisfactory conduct and behaviour at work and he was provided with one month’s notice of termination commencing Monday 16 January 2017. In his Form F2 Application, Mr Cooper stated that he was notified by Statseeker of his dismissal on 16 January 2017 and that it also took effect on this date, while Statseeker maintained, as outlined in its Form F3 Employer Response, that it notified Mr Cooper of his dismissal on 13 January 2017 and that it was to take effect on 15 February 2017.

[3] The matter was referred to conciliation on 10 March 2017 but it did not resolve. The matter was subsequently listed for Arbitration Conference/Hearing to commence on 22 May 2017. Following this, correspondence was sent by the Fair Work Commission (Commission) to parties on 4 April 2017 regarding Statseeker’s objection which suggested Mr Cooper’s application is invalid as it was made prior to the effective date of dismissal.

[4] This correspondence referred parties to the decision of the Full Bench of the Commission in Mihajlovic v Lifeline Macarthur 1(Mihajlovic) as authority for the proposition that the Commission has discretion to amend the application, pursuant to s.586(b) of the Act, in “circumstances where an application has been filed before a dismissal has taken effect.” As such, parties were directed to file and serve statements, submissions and any other relevant material in support of the date upon which they say the termination of Mr Cooper’s employment took effect, by no later than 4.00pm on 11 April 2017.

[5] Further to this, parties were also advised:

“In the event of a finding by the FWC that the termination of the Applicant’s employment took effect on 15 February 2017, the Parties are further directed [to] file submissions as to whether or not, in the particular circumstances of this case, the discretion in s.586(b) of the Fair Work Act 2009 (Cth) should be exercised to waive the irregularity in the manner in which the Application was made by no later than 4.00pm on 11 April 2017.”

Submissions of Mr Cooper

[6] Mr Cooper filed submissions with the Commission in support of his application on 11 April 2017, asserting that his termination date was the last day he physically attended the office on 13 January 2017, since “the Contract of Employment was no longer binding.”

[7] Mr Cooper further submitted that he had made a request through his legal representative for a copy of his contract of employment but this request was rejected by Statseeker. In this regard, Mr Cooper stated:

“I was not able to obtain this information until well after the date of my last day of work in the office (officially my termination date 13th of January 2017) and as such found it necessary to lodge the unfair dismissal application.

On the 13th January 2017, Statseeker confiscated my computer, phone and cut off all communications with Statseeker staff and infrastructure and I was requested to not return to the office.”

[8] As such, Mr Cooper submitted that the Commission should exercise its discretion under s.586 of the Act to waive the irregularity in the form or manner in which his application was made. In his submissions, Mr Cooper stated that he commenced work with Statseeker on 11 September 2000 as a Technical Support Manager and a new contract of employment was subsequently created by Statseeker on 1 September 2013.

[9] Mr Cooper also submitted that this contract of employment with Statseeker was effectively terminated on 20 October 2016 when he was “demoted” to the position and role of Technical Support Engineer. He stated “a new employment contract was never issued… all restraints and conditions were no longer valid in the Contract of Employment dated 1^st September 2013.” Mr Cooper asserted that as a request for a copy of his contract of employment was rejected by Statseeker, the exact date of his termination “could not be established until after the deadline of the time to lodge the unfair dismissal application.”

Submissions of Statseeker

[10] On 11 April 2017, the representative for Statseeker sent correspondence to the Commission and submitted:

“…the termination of employment took effect on 15 February 2017, after the Application for Unfair Dismissal Remedy was filed.
Although there is a discretion pursuant to section 586(b) of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to waive an irregularity in the form or manner in which an application is made, the Respondent submits that this case is not one to exercise that discretion.”

[11] In its submissions regarding Mr Cooper’s date of termination, Statseeker referred to a supporting witness statement of Ms Sarah Allen, Chief Financial Officer of Statseeker, as outlining that Mr Cooper was “provided a letter dated 16 January 2017 titled outcome of show cause meeting” in which it submitted Mr Cooper:

“(a) was given a month’s notice of termination;

(b) was advised in this letter that he was not required to work out the notice period; and

(c) was advised that the termination of employment was to take effect on Wednesday 15 February 2017.”

[12] With respect to whether the Commission should exercise its discretion pursuant to s.586(b) of the Act, Statseeker referred to Mihajlovic as authority that the power of the Commission to waive irregularities is not“automatic” and that all of the circumstances of a particular case are required to be considered. 2 Statseeker cited the decisions of the Commission in Gee v Tasmanian Ports Corporation Pty Ltd3 (Gee) and Konakalla v Bendigo and Adelaide Bank Ltd4(Konakalla), where irregularities in unfair dismissal applications filed before the termination of employment took effect were waived by the Commission.

[13] In particular, Statseeker referred to Gee, in which the Respondent submitted the merits of the unfair dismissal application were one factor that the Commission needed to consider in determining whether to exercise its discretion pursuant to s.586(b) of the Act. Statseeker admitted that as at the time its submissions were filed, the Commission did not yet have evidence before it regarding the merits of Mr Cooper’s application (his submissions were due by noon on 18 April 2017), however it submitted the Commission did have available to it the Form F2 Application lodged by Mr Cooper on 3 February 2017, as well as the Form F3 Employer Response filed by Statseeker on 17 February 2017.

[14] In relation to the Form F2 Application, Statseeker submitted:

“…the Applicant is seeking a remedy not available to be made by the Commission, in seeking that restraints of trade be waived.

The Form F3 is quite detailed in the steps that the Respondent took to assist the Applicant, including:

(a) providing paid leave of 5 days to enable the Applicant time to sort out personal issues;

(b) following up as to how the Applicant was feeling over that period of leave and providing details of its Employee Assistance Program;

(c) implementing a coaching plan to assist the Applicant improve his performance at work;

(d) implementing a return to work with the Applicant's treating medical practitioner; and

(e) providing procedural fairness to the Applicant by asking him to provide responses and an opportunity to show cause before a decision to terminate the employment was made.”

[15] With regards to other relevant factors the Commission is required to take into account, Statseeker submitted these should include the material disclosed in its Form F3 Employer Response which included the following:

“(a) The Applicant's conduct in drinking during lunch breaks and erratic behaviour at work created an unacceptable risk to the health and safety of not only the Applicant but other staff of the Respondent;

(b) The Applicant's failure to comply with a reasonable and lawful direction to attend alcohol testing on 11 January 2017, although the Applicant noted in his response meeting that he had attempted to undertake alcohol testing and that he had not drunk alcohol on 11 January; and

(c) The Respondent provided actual notice of termination to the Applicant and placed him on gardening leave for the duration of the notice period in an attempt to lessen the impact of dismissal.”

[16] Statseeker submitted that taking into account the above, Mr Cooper’s application has limited prospects of success due to there being a valid reason for its termination of his employment, namely “the unacceptable Work Health & Safety risk the Applicant posed and his continued failure to comply with the Respondent's policies, procedures and processes.” In addition to this, Statseeker submitted Mr Cooper was afforded procedural fairness through receiving warnings, as well as having coaching and return to work plans developed for him in conjunction with his treating medical practitioner. It was submitted by Statseeker that in all of these circumstances, combined with Mr Cooper’s seeking of a remedy which it asserts is one that“the Commission has no power to order,” the discretion under s.586 of the Act should not be exercised and the unfair dismissal application lodged by Mr Cooper be dismissed.

Consideration

[17] The validity of unfair dismissal applications filed on a date before the dismissal has taken effect was considered by the Full Bench in Mihajlovic, where it said:

“[42] Section 394(1) is, we consider, a procedural provision which identifies who may make an application, similar to the statutory provision considered in Emanuele v Australian Securities Commission. It does not go to the jurisdiction of the Commission to grant an unfair dismissal remedy under Part 3-2 of the Act. An application which was filed prematurely is properly to be characterised as one which was not made in accordance with s.394(1) of the Act. We do not consider that the Act evinces a purpose to render any such application automatically invalid and of no effect. Rather, the Commission is conferred with a discretionary power to dismiss such an application under s.587(1)(a), either on its own initiative or upon application. The Commission also has a discretion under s.586(b) to waive any irregularity in the form or manner in which an application is made. We consider that Mr Mihajlovic’s premature filing of his application constituted an irregularity in the manner in which he made his application capable of waiver under s.586(b).” 5

[18] In Mihajlovic, the Full Bench remitted the matter back to Vice President Hatcher to determine whether the discretion in s.586(b) of the Act should be exercised. 6 In subsequently exercising his discretion to waive the irregularity, Vice President Hatcher stated:

“[5] The respondent submitted that because Mr Mihajlovic knew at the time that he lodged his application that his dismissal had not yet taken effect, the discretion to waive the irregularity under s.586(b) should not be exercised in his favour. It further submitted that his application concerned his dissatisfaction as to whether he had been paid his statutory entitlements, which was an issue not capable of resolution by the Commission. Although not expressly stated, I took this as a submission that waiver should not be granted because the application lacked substantive merit and was doomed to fail.

[6] The practical position in the matter before me is that there is no doubt that Mr Mihajlovic is, and has been since 5 September 2013, a person who has been dismissed within the meaning of that expression in s.386 of the Act. The Commission therefore has, subject to any separate jurisdictional objection, jurisdiction to entertain his claim for an unfair dismissal remedy. There is no suggestion that the fact the application was filed prematurely has caused any prejudice to the respondent. It has necessarily been on notice at all times since his dismissal took effect that Mr Mihajlovic contested his dismissal and sought an unfair dismissal remedy. This is not a situation whereby “exceptional circumstances” have to be demonstrated in order for a waiver to be granted, by contrast to an extension of time application under s.394(3). Prima facie, there is a strong case for the waiver to be granted.

…

[8] I am not prepared to conclude that his application is without merit. Its grounds are not confined to the issue of the payment of statutory entitlements; he contends for example that there was no valid reason for his dismissal and that he was (in substance) denied procedural fairness.” 7

[19] I intend to have regard to similar considerations in determining whether to exercise my discretion to waive the irregularity in the manner in which Mr Cooper’s application was made.

[20] In the circumstances of this case, there is no dispute between the parties that Mr Cooper was notified on 13 January 2017 of his dismissal. It would, however, seem that while the subsequent termination letter from Statseeker dated 16 January 2017 stipulated the last day of Mr Cooper’s employment was to be 15 February 2017, the arrangements put in place when the termination was notified may have led to Mr Cooper’s belief that his termination had been with immediate effect. In this regard, Mr Cooper advised that on 13 January 2017, he was requested not to return to the office, his computer and phone were confiscated and Statseeker cut him off from all communications with its staff and infrastructure. Further, the termination letter required the immediate return of keys and his security card and advised that he would not be required to undertake any work.

[21] It also seems as though Mr Cooper challenges the status of the Contract of Employment, and therefore the termination arrangements, which Statseeker invoked in terminating his employment.

[22] As to the submission by Statseeker regarding the merits of Mr Cooper’s unfair dismissal application, it was properly conceded by Statseeker that when it filed its submission that the discretion under s.586(b) of the Act should not be exercised, the Commission had no evidence before it. Since then however, Mr Cooper has filed material in which he addresses incidents relied on by Statseeker as the basis for his termination. The material is not extensive but it would appear as though Mr Cooper is preparing for his case without the benefit of professional advice. In these circumstances, I am not prepared to conclude, based on written material alone, that Mr Cooper’s application is without merit. I further note that Mr Cooper has also advised he seeks the remedy of compensation.

[23] Finally, I note there is no suggestion by Statseeker that Mr Cooper’s filing of his unfair dismissal application 12 days early has caused it any prejudice.

[24] Therefore, in all of the circumstances of this application, I consider the discretion in s.586(b) of the Act should be exercised in Mr Coopers’s favour.

[25] Pursuant to s.586(b) of the Act, I waive the irregularity in the manner in which Mr Cooper made his application for an unfair dismissal remedy. The matter will proceed to Arbitration Conference/Hearing on 22 May 2017 as listed.

DEPUTY PRESIDENT

 1   [2014] FWCFB 1070.

 2 Ibid at [43].

 3   [2016] FWC 1133.

 4   [2017] FWC 829.

 5   [2014] FWCFB 1070 at [42].

 6 Ibid at [44].

 7   [2014] FWC 1871.

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