Florian Maurer v Rema Tip Top Industrial Australia Pty Ltd T/A Rema Tip Top

[2015] FWC 6145

[2015] FWC 6145

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Florian Maurer
v
Rema Tip Top Industrial Australia Pty Ltd T/A Rema Tip Top
(C2015/2778)

COMMISSIONER LEWIN MELBOURNE, 4 SEPTEMBER 2015

Application to deal with contraventions involving dismissal – application filed out of time – application for extension of time to file application – no exceptional circumstances – application dismissed.

Introduction

[1] This decision concerns an application to the Fair Work Commission (Commission) pursuant to s.366(1)(b) of the Fair Work Act 2009 (Cth) (the Act) for an extension of time to file a general protections application. On 11 May 2015, Mr Florian Maurer filed a general protections application pursuant to s.365 of the Act. Mr Maurer noted in his application that it was being made more than 21 days after the effective date of dismissal from his employment with Rema Tip Top Industrial Australia Pty Ltd (Rema Tip Top). On 9 June 2015, Rema Tip Top filed its response, making a jurisdictional objection to Mr Maurer’s application on the basis that it was filed outside of the 21 days prescribed by s.366(1)(a) of the Act.

[2] On 23 June 2015, the Commission issued directions for the parties to file submissions and any witness statements in relation to an extension of time for Mr Maurer to file his general protections application. On 3 July 2014, Mr Maurer’s representative filed an outline of submissions and a witness statement of Florian Maurer (Maurer Statement) pursuant to the directions. On 10 July 2015, Rema Tip Top’s representative filed an outline of submissions and a witness statement of Peter Wieczorkowski (Wieczorkowski Statement), Rema Tip Top’s Financial Controller for the Asia Pacific Region pursuant to the directions.

[3] On 10 August 2015, Mr Maurer’s representative sought leave to file a further witness statement of Florian Maurer (Further Maurer Statement) and an audio recording of a telephone conversation between Mr Maurer and Mr Wieczorkowski. Rema Tip Top’s representative objected to admitting the Further Maurer Statement and audio recording. The Commission reserved its decision whether or not to admit the further evidence and invited Rema Tip Top to file submissions and witness statements in relation to their objection and Mr Maurer’s further materials. On 17 August 2015, Rema Tip Top’s representatives filed submissions in respect of their objection to the admissibility of Mr Maurer’s further witness statement and the audio recording. On 19 August 2015, Mr Maurer’s representative sought leave to file a reply to Rema Tip Top’s submissions. The Commission granted leave and Mr Maurer’s representative filed an outline of submissions in reply to Rema Tip Top’s objection to admitting the further witness statement. On 31 August 2015, Rima Tip Top filed further submissions with respect to the admissibility of the Further Maurer Statement and audio recording.

The further witness statements and submissions

[4] Rema Tip Top objects to the admission of the Further Maurer Statement and the audio recording of the telephone conversation filed by Mr Maurer on 10 August 2015. Rema Tip Top objects for the following reasons:

(a) The recording captures only part of the conversation had between Mr Maurer and Mr Wieczorkowski and is therefore liable to be taken out of context;

(b) The conversation, or part thereof, was recorded without the knowledge or consent of Mr Wieczorkowski and was therefore obtained in contravention of the Telecommunications (Interception and Access) Act 1979 (Cth) (SIA Act) and the Surveillance Devices Act 2007 (NSW) (SD Act); and

(c) As improperly or illegally obtained evidence, it should not be excluded under s.138 of the Evidence Act 1995 (Cth) (Evidence Act).

[5] Rema Tip Top also submits that certain parts of the Maurer Statement and the audio recording are subject to privilege. Further, Rema Tip Top dispute the relevance of the Further Maurer Statement and the audio recording as they do not address the merits of the application for an extension of time, but go to the merits of the substantive issues raised by Mr Maurer’s application under s.365 of the Act However, I note that the merits of an application is a matter the Commission must take into account when considering whether it is satisfied that exceptional circumstances exist warranting an extension of time to file an application pursuant to s.366(2)(d) of the Act. Further, it is a relevant consideration for the Commission to take into account when performing its functions pursuant to s.578(b) of the Act. I will consider s.578(b) of the Act further below.

[6] On 20 August 2015, Mr Maurer’s representative filed submissions in reply to Rema Tip Top’s objections. Mr Maurer submits that the audio recording of the conversation was not in contravention of the SIA Act or the SD Act. Further, Mr Maurer submits that recording the conversation with Mr Wieczorkowski was not obtained illegally or improperly and therefore cannot be excluded by s.138 of the Evidence Act.

[7] With regard to Rema Tip Top’s objections with respect to the SIA Act and the SD Act, the Commission does not have jurisdiction to make findings and determinations under these legislative instruments. Findings and determinations under the SIA Act and SD Act are matters for a court of competent jurisdiction. In relation to Rema Tip Top’s objection with respect to s.138 of the Evidence Act, I note s.591 of the Act provides that the Commission is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter).

[8] Both Mr Maurer and Rema Tip Top submitted to the Commission in relation to s.578(b) of the Act. Section 578(b) of the Act provides that when performing its functions or exercising its powers, in relation to a matter, under a part of the Act, the Commission must take into account equity, good conscience and the merits of the matter.

[9] Section 590(1) of the Act provides that the Commission may, except as provided by the Act, inform itself in relation to any matter before it in such manner as it considers appropriate. Therefore, all materials currently before the Commission will inform its decision in relation to this matter. However, the weight to be attributed to the materials currently before the Commission will be at the Commission’s discretion, taking into account equity, good conscience and the merits of Mr Maurer’s application.

Relevant statutory provisions

[10] Section 366 of the Act prescribes the time for making a general protections application pursuant to s.365 of the Act:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

Consideration

[11] Mr Maurer submits that the effective date of the termination of his employment with Rema Tip Top was 1 April 2015, making his application 19 days outside of the 21 day time limit prescribed by s.366(1)(a) of the Act. Mr Maurer submits that the circumstances leading to the delay in filing his general protections application are “exceptional circumstances” as espoused in Ho v Professional Services Review Committee No 295 [2007] FCA 388 (Ho v Professional Services Review Committee). Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon which are not regularly, routinely or normally encountered.  1

[12] Mr Maurer provides two reasons why the circumstances leading to the delay are exceptional. The first reason Mr Maurer provides is that he sought legal advice about his contractual entitlements and redundancy pay and was advised that he had 6 years to pursue a claim under his employment contract. The second reason Mr Maurer provides is that he was encouraged to believe that there were reasonable prospects of settlement of the contractual dispute and a failure to settle the dispute led to the application being filed outside of the 21 day time limit prescribed by s.366(1)(a) of the Act. Rema Tip Top submit that neither reason provided by Mr Maurer are exceptional and that his application for an extension of time pursuant to s.366(1)(b) of the Act should be refused.

The reason for the delay

[13] In relation to first reason provided by Mr Mauer, that he received legal advice that he had 6 years in which to bring a claim in relation to his employment contract, paragraph 24 of the Maurer Statement, Mr Maurer states that:

“I received some initial advice about my contractual entitlements and redundancy pay (if I had been made redundant) on 8 April 2015. At that stage I felt my relationship with Peter Wieczorkowski was still good and I regarded him as a friend. I did not believe he had made the decision to dismiss me. I was fairly confident that we could reach an amicable resolution by continuing to discuss the situation. I did not want to risk antagonising the situation any further by having a lawyer intervene. I had been advised that I had 6 years to pursue a claim under my contract.”

[14] Rema Tip Top submit that despite having the ability to access legal representation since 26 March 2015, and having had legal representation since 31 March 2015, both before the effective date of termination and prior to the expiration of 21 days from the effective date of termination, Mr Maurer’s application was filed some 40 days after the effective date of termination. Rema Tip Top submits that inaccurate or incomplete legal advice does not constitute exceptional circumstances.

[15] The Full Bench of the Commission in Cheyne Leanne Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty v Blue Star Group) held that ignorance of the statutory time limit is not an exceptional circumstance. The Full Bench in Nulty v Blue Star Group held:

“Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”  2

[16] Rema Tip Top submit that pursuant to the Full Bench’s finding in Nulty v Blue Star Group that although Mr Maurer inadvertently believed he had 6 years to make a claim, this on its own cannot constitute an “exceptional circumstance”. Further, Rema Tip Top submit that in any event it is clear that this advice related to a claim based on contract and not a claim under the Act, and this says nothing about Mr Maurer’s state of knowledge with respect to an application under the Act, nor whether that option was considered or not.

[17] Taking into account the materials before the Commission I do not consider the first reason given by Mr Maurer constitutes an “exceptional circumstance” within the meaning of s.366(3) of the Act. I accept Rema Tip Top’s submission that the advice Mr Maurer related to contractual entitlements and not an application under the Act. Ignorance of the time in which to file a general protections application under the Act is not exceptional.

[18] The second reason Mr Maurer provides is that he was encouraged to believe that there were reasonable prospects of settlement and a failure to settle the dispute led to the application being filed outside of the 21 day time limit prescribed by s.366(1)(a) of the Act. As outlined above, at paragraph 24 of the Maurer statement Mr Maurer states “I did not want to risk antagonising the situation any further by having a lawyer intervene”. Further, at paragraph 32 of the Maurer Statement, Mr Maurer states that:

“It was not until I spoke to my lawyer in detail in early May 2015 that I learned that I might have a case based on the responsibilities I have to my family. It is very hard for me to know whether or not this was the reason I was dismissed. The more time I have had to reflect on what happened, however, and the company’s refusal to give me any explanation leaves me to strongly suspect that may well have been the case. Had I been provided with an explanation for my termination which I have now only recently received in the Form F8A Response – or if I had not been encouraged to believe there were reasonable prospects for a settlement I would have made much more detailed inquiries of my lawyer and, I believe, would have made my application within the 21 day time limit.”

[19] Mr Maurer submits that Rema Tip Top’s conduct led him to understand that an acceptable resolution of the termination of his employment had been reached, and it was only when Mr Maurer realised that this was not the case that he elected to take legal action. However, Rema Tip Top submit that it was Mr Maurer’s decision, with the benefit of legal advice, not institute proceedings. Further, Rema Tip Top submit that there is no evidence that Rema Tip Top gave Mr Maurer any encouragement not to take legal action, or sought to persuade him not to take such a course, or led him to believe that Rema Tip Top waived any rights it may have in any proceedings. Rema Tip Top submit that it would have been perfectly open to Mr Maurer to file an application with time, while continuing negotiations on the basis that he would not proceed with the application if negotiations were successful.

[20] The Commission in Madison Fairfull v Hamilton Child Care Centre Inc[2015] FWC 1035 (Fairfull v Hamilton Child Care) held that delaying filing of an unfair dismissal application pursuant to s.394 of the Act due to on-going settlement discussions, which is subsequently filed out of time, is not an exceptional circumstance warranting an extension of time to file. I note that the time for filing an unfair dismissal application and the matters the Commission must take into account in determining whether an extension of time is to be granted are in almost identical terms to those relating to a general protections application. Deputy President Sams in Fairfull v Hamilton Child Care held:

“It is regrettable that the applicant instructed her solicitor to delay the filing of her application on 10 December 2014. While settlement discussions are to be encouraged, they do not represent a bar to filing an unfair dismissal application, particularly when a late filing may be fatal to the application being accepted. I am not satisfied that this is an ‘exceptional circumstance’ within the meaning of s.394(3) of the Act.”  3

[21] Taking into account the materials before the Commission I do not consider the second reason given by Mr Maurer constitutes an “exceptional circumstance” within the meaning of s.366(3) of the Act. Any settlement negotiations between Mr Maurer and Rema Tip Top do not represent a bar to Mr Maurer filing a general protections application and a failure to do so within the time required is not exceptional.

Any action taken by the person to dispute the dismissal

[22] Action taken by an employee to contest the dismissal, other than lodging a dismissal application, may favour granting an extension of time.  4 On the materials before me, there is nothing which demonstrates that Mr Maurer disputed the fundamental validity of the dismissal directly with Rema Tip Top. The Maurer Statement illustrates that Mr Maurer made enquires with regards to his entitlements under his employment contract and the potential for payment to him of a greater amount than Rim Tip Top intended. I consider this to be a neutral consideration.

Prejudice to the employer (including prejudice caused by the delay)

[23] Rema Tip Top submits that granting an extension of time for Mr Maurer to file his application will expose Rema Tip Top to legal costs in a jurisdiction where costs are generally to be borne by the parties. However, Mr Maurer submits that there are no factors in this matter that indicate the respondent will suffer any undue prejudice if an extension of time is granted. I do not accept that Rema Tip Top would be prejudiced by the Commission accepting Mr Maurer’s application outside of the 21 day time limit over and above the usual prejudice that may accompany any grant of an extension of time.  5

The merits of the application

[24] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient.  6 However, the Commission cannot make any findings on contested matters without hearing evidence, which is rarely called for the purposes of determining an extension of time application. Therefore, the Commission should not embark on a detailed consideration of the substantive application. 7 I have not done so. I am therefore unable to conclude that the application is “highly meritorious”. Accordingly I find that, on what is before me, the merits of the application are a neutral consideration for the purpose of determining whether exceptional circumstances exist.

[25] Mr Maurer submits that compelling evidence of unlawful discrimination because of family responsibility is not available, at least as yet, to Mr Maurer. Nonetheless, Mr Maurer submits that the matters alleged in the Maurer Statement in the absence of any plausible explanation from Rema Tip Top for the dismissal indicate that Mr Maurer has a real prospect of success if his application can proceed. Rema Tip Top submits that so far as can be seen at this interlocutory stage, Mr Maurer’s application lacks any clear evidentiary basis, and consideration of the merits of the claim do not raise exceptional circumstances in favour of an extension of time.

[26] I am unable to reach a conclusion that Mr Maurer was the subject of discrimination on the materials before me.

Fairness as between the person and other persons in a like position

[27] Mr Maurer did not make submissions with respect to s.366(2)(e) of the Act. This consideration may relate to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.  8 The comparison should be limited to a comparison of persons who have had their employment terminated and are capable of lodging an application under s.365. 9 However, there is no evidence before the Commission that there is, or has been, any application by a person in a like-position to Mr Maurer. I consider this to be a neutral consideration.

Conclusion

[28] On what is before me and taking into account all of the matters into account I am not satisfied that exceptional circumstances exist which would give rise to the discretionary power to accept the application. An order dismissing Mr Maurer’s application will accompany this decision.

COMMISSIONER

Final written submissions:

31 August 2015.

 1   Ho v Professional Services Review Committee No 295 [2007] FCA 388, [25]; Cheyne Leanne Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13]

 2   Cheyne Leanne Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]

 3   Madison Fairfull v Hamilton Child Care Centre Inc[2015] FWC 1035, [15]

 4   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300

 5   Bradbury v Interact Australia (Victoria) Ltd[2010] FWA 4829, [67]

 6   Haining v Deputy President Drake (1998) 87 FCR 248, 250

 7   Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 [14]

 8   Wilson v Woolworths[2010] FWA 2480, [24]-[29]

 9   Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645, [26]

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