Erin Guhl v Dredging International Australia Pty Ltd T/A Dredging International Australia

[2014] FWC 7057

[2014] FWC 7057

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Erin Guhl
v
Dredging International Australia Pty Ltd T/A Dredging International Australia; Bechtel (Western Australia) Pty Ltd
(C2014/4287)

DEPUTY PRESIDENT MCCARTHY PERTH, 17 OCTOBER 2014

Application to deal with contraventions involving dismissal.

[1] On 2 May 2014 Ms Erin Guhl (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the FW Act) alleging that an adverse action had been taken against her. The application states that the Applicant was dismissed from her employment with Dredging International Australia Pty Ltd (DIA) on 14 April 2014.

[2] I conducted a Conference as required by s.368 of the FW Act on 15 May 2014. The Applicant represented herself at that Conference. That Conference was adjourned in order that the Applicant could obtain legal advice. A second Conference was convened and held on 25 July 2014. The Applicant was represented at that Conference by Mr Cox, a barrister. Mr Cox was instructed by MDC Legal.

[3] Mr Cox sought to amend the application by having the details of the application particularised and grounds in support of the application more expressly identified. Mr Cox also sought to have another party joined as a second respondent to the application. The Conference on 25 July 2014 was also adjourned and I subsequently issued Directions requiring written submissions regarding the amendments sought. Mr Cox subsequently lodged detailed submissions and attached an affidavit sworn by the Applicant.

[4] The Applicant had been employed by DIA working at the Wheatstone Project. The Wheatstone Project (the Project) is a construction project involving the construction of a liquefied natural gas plant just outside Onslow in Western Australia. It is not disputed that Bechtel (Western Australia) Pty Ltd (Bechtel) is engaged to provide engineering, procurement and construction management services in respect of the Project.

[5] The Applicant submitted that her employment as a health and safety administrator involved her being able to be directed to work for any of DIA’s clients and to comply with the client’s directions. Bechtel was asserted to be a client of DIA. The Applicant is said to have been required to comply with and abide by DIA’s and Bechtel’s policies, procedures, and reasonable requirements.

[6] The Applicant asserts that she was subjected to sexual harassment whilst at the site. A serious incident is alleged to have occurred at the site involving the Applicant in early January 2014 (the incident) 1. The incident was referred to the Onslow police by the Applicant on 12 January 2014. The Applicant attests that the communications she had with management of DIA included references by DIA to discussions between DIA and Bechtel.

[7] The Applicant says that on 16 January 2014 she was removed from the Project site. She asserts that the Project Director of DIA stated that DIA had been directed by Bechtel to remove her because she was alleged to have been drinking on the beach which was in breach of the Bechtel’s Code of Conduct. The Applicant disputed that she had been drinking on the beach.

[8] The Applicant says that she had a meeting with representatives of DIA on 27 January 2014 in Perth and was told again that she had been removed from the Project site because she had breached Bechtel’s Code of Conduct by drinking on the beach. She again disputed this allegation.

[9] The Applicant says she attended, presumable meaning she worked at, DIA’s offices in Perth between 6 February and 14 April 2014. On 14 April 2014, the Applicant was dismissed from her employment and was informed that her position had been made redundant.

[10] The submission for the Applicant states that at the time of filing the application the Applicant was not legally represented and unaware that she was able to bring proceedings against Bechtel or anyone else other than her employer. The Applicant states that the joining of Bechtel has been raised early in proceedings and that she will not be able to take any proceedings against Bechtel unless the amendment is allowed.

[11] Bechtel lodged submissions opposing the amendment sought by the Applicant seeking Bechtel to be added as a second respondent. Bechtel submitted that the powers of the FWC to amend an application do not extend to joining a new party outside the statutory time frame. The statutory time frame here requires that an application under the General Protections provisions of the FW Act must be lodged within 21 days (s.366(1) of the FW Act).

[12] Bechtel submitted that the power under s.586 of the FW Act is limited and does not extend to an amendment that has the effect of adding another party to the application.

[13] Bechtel argues that the time limits and the allowing of applications outside that time limit are matters dealt with in a highly prescriptive manner in the FW Act. They argue matters dealt with in such prescription should not be subject to less specific obligations by the use of general powers directed at more general issues.

[14] In my view the addition of Bechtel as a respondent to the application cannot be characterised as a correction or an amendment of an application. In my view the adding of Bechtel to the application would have the effect of allowing a new and fresh application against an entity not named in an application lodged. The implication and effect of including Bechtel to the application lodged is in effect a fresh application against Bechtel.

[15] However, the FW Act in s.586(b) provides the Fair Work Commission (FWC) with the power to “waive any irregularity in the form or manner in which an application is made to the FWC”.

[16] In my view the powers of s.586(a) may not be available for the purpose the Applicant wanted but the powers of s.586(b) are available. I have also decided to waive the requirement of the Fair Work Commission Rules 2013 to lodge an application in the usual manner and the requirement to lodge the application through the lodging of a new Form F8. I will treat the application to add Bechtel as a new application but retain the same application number as the application number allocated to the application against DIA.

[17] The effect of the above decision is that I would need to find that exceptional circumstances exist in order for the application against Bechtel to be allowed.

Consideration of whether exceptional circumstances exist

[18] The reason for the delay was explained as being a lack of knowledge by the Applicant about the capacity to take action against Bechtel, an incapacity to pay for legal representation and the state of mind of the Applicant. Bechtel submitted that these reasons do not constitute exceptional circumstances. I find that the combination of these issues and in particular the Applicant’s state of mind weighs in favour of a finding of an exceptional circumstance.

[19] The Applicant took action about the asserted adverse action by lodging the application against DIA. The Applicant asserted that she made enquiries at least, and possibly complaints, about her removal from the Project site. She also asserts that she disputed that she had engaged in the conduct that resulted in her relocation to Perth. The Applicant also says she made complaints or enquires about evidence she was required to provide about treatment she was receiving. The Applicant also submitted that she followed the procedures involved in the FWC regarding the application she lodged.

[20] Bechtel submitted that none of the reasons the Applicant provided about the actions she took involved any direct contact with Bechtel or any employee or representative of Bechtel.

[21] Bechtel also submitted that Bechtel was only notified of the intended action against them when another entity, Bechtel Australia Pty Ltd, was written to by the Applicant’s representatives. Further they submit that despite the representatives of Bechtel (Norton Rose Fulbright Australia) writing to the Applicant’s representative advising of the incorrect entity on 8 July 2014 it was not until 24 July 2014 that the Applicant’s representative sought to name Bechtel (Western Australia) Pty Ltd as the correct entity.

[22] I consider the actions the Applicant took do weigh in the favour of a finding of an exceptional circumstance. The limitation of her actions to an action against DIA was a consequence of the reasons for the delay identified above.

[23] Beyond the normal prejudice a respondent suffers as a consequence of delays I do not consider Bechtel will suffer other prejudice. This element of my considerations is a neutral factor.

[24] It appears that the Applicant believed from the outset that Bechtel had some possible involvement in, or were at least consulted over, her removal from the Project site. It is this removal that the Applicant appears to be asserting was a reason, if not the reason, why she was dismissed. It may also be the case that the Applicant may also be asserting that the removal from the Project site was in itself an adverse action.

[25] Bechtel argue that there is no allegation made by the Applicant that fits within the meaning of adverse action as set out in s.342(1) of the FW Act. They also submit that the facts pleaded by the Applicant do not support any finding, or presumably any potential for a finding, that Bechtel had any knowledge of, or was involved in, the matters referred to by the Applicant.

[26] The submissions by Bechtel go partly to whether in the event that the application is allowed there is any jurisdiction for the complaint to be dealt with. Secondly, Bechtel submits that the facts asserted by the Applicant do not support her contentions. I do not consider these arguments are persuasive for the considerations I must take into account for them to weigh against a finding of an exceptional circumstance.

[27] The seriousness of the incident and the apparent consequences of it for the Applicant are considerations I have also taken into account in assessing the merits of the application. I find that the merits of the application weigh in favour of a finding of an exceptional circumstance.

[28] The Applicant submitted that she was in an exceptional circumstance when compared to other persons due to the circumstances of the adverse action alleged and its consequence including the treatment the Applicant has been receiving. The Applicant also submitted that the trauma following the alleged incident created difficulties for the Applicant in dealing with the matters arising from it. Attached to the affidavit presented was a report from the Applicant’s treating psychologist. That report, dated 11 August 2014, indicates that the Applicant has been presenting to the psychologist with symptoms of post traumatic stress disorder which do impact on a person’s ability to function on a day to day basis. However the psychologist also stated that she was not in a position to comment on the Applicant’s capacity to work or make a legal claim without representation.

[29] Bechtel submitted that the relationship between the Applicant and Bechtel does not lead to a direct comparison with other persons in a like position. It seems that the intention of this consideration is to try and ensure consistency in FWC in dealing with matters with similar circumstances. In my view, “persons in a like position” is not a reference to all persons who have lodged an application out of time. Rather, it is a requirement to take into account matters where there have been the same, or similar, characteristics and/or circumstances. The aim being to have persons in similar circumstances treated similarly and for the decisions of FWC to be consistent.

[30] I find that the circumstances and the consideration of fairness between the Applicant and other persons in a like position here weigh in favour of a finding of an exceptional circumstance.

[31] Taking all of these considerations into account I find that exceptional circumstances exist. I therefore will allow the application despite it being beyond the time allowed.

[32] The most practical way of dealing with the application against Bechtel is to allow it and identify DIA as the First Respondent and Bechtel as the Second Respondent.

[33] With respect to the allowing of the general amendments to more precisely identify the complaints and the grounds for the complaint I have not yet heard from DIA. I will deal with that element of the application to amend once DIA has been given that opportunity to provide submissions regarding the amendments to the application. DIA is to provide submissions in relation to the general amendments to the Applicant’s application by 5:00pm (AWST) on Wednesday, 22 October 2014.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 13 August 2014.

Bechtel (Western Australia) Pty Ltd, 20 August 2014.

 1   I am being deliberately vague about the nature of the incident due to the seriousness of the allegations and the untested nature of the assertions.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR556324>