Fredy Bernal v Woolworths Ltd T/A BWS

[2016] FWC 2221

[2016] FWC 2221

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fredy Bernal
v
Woolworths Ltd T/A BWS
(U2015/9194)

DEPUTY PRESIDENT KOVACIC CANBERRA, 8 APRIL 2016

Application for relief from unfair dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Fredy Bernal (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 8 July 2015 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by Woolworths Limited T/A BWS (BWS – the Respondent) on 5 June 2015 was unfair.

[2] The Commission wrote to Mr Bernal on 13 July 2015 advising that his application appeared to have been lodged outside the 21 day time frame specified in the Act and requesting that he complete an Outline of Argument: extension of time and Statement of Evidence to assist the Commission in determining whether it should allow an extension of time. Mr Bernal’s application was lodged twelve days outside the 21 day statutory timeframe.

[3] Directions were issued on 5 August 2015 setting out the timetable for the filing of submissions and any evidentiary material to be relied on by the parties, with amended Directions issued on 10 August 2015. The extension of time issue was heard on 28 August 2015.

[4] At the hearing Mr Bernal appeared on his own behalf, while Mr Jason Pereira and Mr Adam Bradley, Area Manager for BWS, appeared for Respondent.

[5] For the reasons outlined below I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, the application cannot proceed and will be dismissed.

Background

[6] Mr Bernal was dismissed by BWS on 5 June 2015. The termination letter issued to Mr Bernal on 5 June 2015 is headed “Termination Letter (Serious Performance/Conduct)” but does not explicitly refer to the reason for his dismissal.

[7] On 22 June 2015 Mr Bernal lodged an application 1 under s.365 of the Act alleging that he had been dismissed by BWS in contravention of the general protections provisions of the Act. On 23 June 2016 that application was listed for a conference before one of the Commission’s Conciliators, with the conference held on 2 July 2015.

[8] Following that conference the Conciliator wrote to the parties in the following terms:

“Dear Parties,

Thank you for your involvement in the conference for the above matter at the Fair Work Commission (the Commission). I confirm that I will hold the file for five business days until COB on 9 July 2015 WST, to allow those present to consider their positions and any options put to resolve the matter. If the matter does not settle in this time, or the applicant does not discontinue the application, a report indicating that the dispute is ongoing will be sent to a Member of the Commission who will assess whether or not reasonable efforts to resolve the matter have been, and are likely to be, unsuccessful.

If the Member is satisfied on reasonable efforts to resolve the matter have been, or are likely to be unsuccessful, a certificate will be issued in accordance with s.368 of the Fair Work Act 2009 and will be emailed to the parties.”

[9] As noted above, Mr Bernal lodged his unfair dismissal application on 8 July 2015. Also on that day, Mr Bernal sent an email at 8:58 pm to the Conciliator regarding his general protections application stating that:

“I have decided to resubmit an application for unfair dismissal using the appropriate form.

I would like to discontinue this application.”

The Relevant Legislation

[10] Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

394(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

394(2) The application must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).

394(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) whether the first person became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”

Whether to allow a further period for the application to be made under s.394(2)

[11] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[12] Mr Bernal submitted that the reason for the delay was that he had lodged his application using the incorrect application form and only became aware of this when advised at the conference convened by the Commission on 2 July 2015 to deal with his general protections application. In his unfair dismissal application, Mr Bernal stated that:

“I have not received any professional advice to lodge these applications (I cannot afford professional advise at the moment); this is the reason why I made the mistake choosing the correct application form. When I browsed on your website I tried to choose the most appropriate application form but unfortunately I did not in the first instance.” 2

[13] As to why his unfair dismissal application was not subsequently lodged until 8 July 2015, Mr Bernal referred at the hearing to the abovementioned letter sent by the Conciliator advising that she will hold the file for five days “to allow those present to consider their positions and any options put to resolve the matter”, adding that he was considering a settlement offer but ultimately decided to discontinue his general protections application and lodge an unfair dismissal application.

[14] BWS submitted at the hearing that Mr Bernal had every opportunity to seek support and counsel prior to lodging his general protections application, adding that Mr Bernal’s error had disadvantaged it (this contention is discussed in further detail below).

[15] In Mr Gery Lane v Kangaroo Island Dive & Adventures Pty Ltd 3 (Lane), Senior Deputy President O’Callaghan granted an extension of time in circumstances where the applicant in that case had made an application within the statutory timeframe but used the incorrect application form, with that error only detected when the matter was the subject of a conference convened by the Senior Deputy President. However, in that case the applicant had lodged an unlawful termination application under s.773 of the Act based on advice from a community legal centre as opposed to a general protections application, with the Senior Deputy President concluding that an application under s.773 was not available as the Respondent was a national system employer. Also in Lane, the applicant did not lodge the correct application until six days after the conciliation conference convened by the Senior Deputy President, with part of the delay in lodging the correct application relating to delays in the applicant obtaining legal advice.

[16] The circumstances in this case, while similar to those in Lane, differ primarily because of the fundamental differences between an application made under s.394 of the Act and one made under s.365 of the Act. Those fundamental differences were set out by the Full Bench in Peter Ioannou v Northern Belting Services Pty Ltd 4 as follows:

“[18] An unfair dismissal application under s.394 is fundamentally different to a general protections application under s.365, even though both may arise from the same set of circumstances involving the dismissal of an employee.

[19] The legislative scheme for an unfair dismissal application is quite distinct from that pertaining to a general protections application. The matters for consideration by the Commission in determining whether there has been an unfair dismissal are specified in the Act as well as the remedies and relief available and the matters relevant to the determination of such remedies. The general protections provisions of the Act, in Chapter 3, Part 3-1 include a range of different protections (including in relation to workplace rights, industrial activities and discrimination) which are defined in the Act and which do not involve a broader assessment of “unfairness” or “harshness” against statutory criteria.

[20] The general protections are civil remedy provisions the contravention of which can lead to the imposition of financial penalties and a reverse onus of proof applies in relation to the reasons for taking adverse action. The determination of general protections applications by a court involves the exercise of judicial power whereas the Commission exercises arbitral power in respect of s.394 applications. The remedies available are also different. A compensation order made by a court is not capped and is not contingent on reinstatement being inappropriate. Injunctive relief is also available. Further the discretion to allow a further period within which to make a s.365 application is exercisable subject to similar but not the same considerations.

[21] Unlike in the courts, there is no general ability to apply to the Commission for relief. Applications can only be made to the Commission under specific provisions of the Act and there are jurisdictional, procedural and other requirements under the Act, the Regulations and the Rules which apply to different applications.” (Footnotes not included)

[17] The differences between an application made under s.773 and s.365 of the Act are not as fundamental as those outlined above, and indeed in many respects are similar.

[18] A further difference is that in Lane the applicant was acting on advice he received from a community legal centre when he lodged the incorrect application. In this case, however, there is nothing before the Commission indicating that Mr Bernal sought or obtained any advice prior to lodging his general protections application. For instance, Mr Bernal did not submit that he had contacted the Commission prior to lodging his general protections application seeking guidance as to whether or not that was the most appropriate form to use.
[19]
While I note that Mr Bernal’s general protections application was lodged with the 21 day timeframe, this of itself does not obviate the onus on Mr Bernal to ensure his application correctly lodged, particularly in circumstances where the Commission’s website provides a range of information regarding dismissal and invites browsers to contact the Commission to inquire about the different types of applications that can be made to dispute a dismissal.

[20] Taken together, the above analysis does not point to the existence of exceptional circumstances.

(b) Whether the first person became aware of the dismissal after it had taken effect

[21] It was not disputed that Mr Bernal became aware of his dismissal on the day it took effect.

[22] This does not point to the existence of exceptional circumstances.

(c) Any action taken by the person to dispute the dismissal

[23] Mr Bernal submitted that following his dismissal he contacted Mr Bradley to discuss his termination payment as he believed that he had not been correctly paid. Mr Bernal acknowledged that his dismissal was not discussed in that conversation. Mr Bernal also contended that he was not given an opportunity to further discuss his dismissal at the meeting with BWS on 5 June 2015.

[24] BWS contended that Mr Bernal took no action whatsoever to dispute his dismissal, highlighting that the termination letter invited Mr Bernal to contact Mr Bradley on his mobile phone number if he had any questions.

[25] As noted above Mr Bernal lodged his general protections application on 22 June 2015 and participated in the conference convened by the Commission on 2 July 2015 to deal with that dispute. Against that background, I consider this factor to be a neutral consideration.

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

[26] Mr Bernal contended that BWS would not be prejudiced were an extension of time granted.

[27] BWS submitted that Mr Bernal’s error had already caused it disadvantage, highlighting, among other things, the time, energy and effort involved in it responding to Mr Bernal’s applications. BWS further submitted that it did not believe that it should be held accountable for Mr Bernal’s failure to lodge the correct application. While I note BWS’s submissions in this regard, the reasons relied upon do not of themself constitute prejudice in the sense that BWS would be disadvantaged in defending the application were an extension of time granted.

[28] I therefore consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[29] Mr Bernal stated in his application that the accusation underpinning his dismissal was “false and unfair, based on wrong assumptions and without evidence.” 5

[30] BWS submitted that Mr Bernal’s dismissal was based on evidence which showed that it had suffered a loss of assets due to the direct and deliberate actions of Mr Bernal. BWS also contended that it believed its actions were considered, fair and reasonable. Attached to its submissions, BWS provided the record of the interview it conducted with Mr Bernal on 5 June 2015 prior to his dismissal. The record of interview canvasses BWS’s concerns, drawing on CCTV footage to support those concerns. While this material was not explored in detail at the hearing, it does involve quite serious allegations.

[31] At the hearing, Mr Bradley stated that BWS had not reported the matter to the police, preferring to deal with the matter internally as it did not wish to impact on potential employment opportunities for Mr Bernal with another employer in Australia (Mr Bernal is working under an unspecified visa). Mr Bradley also stated that Mr Bernal was given three days’ notice of the meeting to discuss its concerns, advance notice of the issues to be discussed and was also invited to bring a support person to the meeting if he wished to do so.

[32] The reasons relied upon by BWS for dismissing Mr Bernal are disputed by him. In the absence of a substantive hearing of the evidence I am unable to form a considered view as to the merits of Mr Bernal’s application, though I would observe that if BWS is able to substantiate its allegations, the merits of Mr Bernal’s application are unlikely to be strong.

[33] Against that background, I consider this factor to be neutral consideration.

(f) Fairness as between the person and other persons in a similar position

[34] At the hearing Mr Bernal contended that the process leading up to his dismissal was completely unfair.

[35] BWS submitted that it provided fairness to Mr Bernal.

[36] As neither party directly addressed this factor in their submissions, I consider this factor to be a neutral consideration.

Conclusion

[37] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 6(Nulty) in the following way:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[38] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I find that there are no exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy. Accordingly, the application cannot proceed and will be dismissed. An order to that effect will be issued with this decision.

Appearances:

F. Bernal on his own behalf.

J. Pereira and A. Bradley for Woolworths Ltd T/A BWS.

Hearing details:

2015.

Melbourne and Perth (telephone hearing):

August 28.

 1   C2015/4436

 2   Form F2 – Unfair Dismissal Application at Item 1.4

 3   [2010] FWA 3939

 4   [2014] FWCFB 6660

 5   Form F2 – Unfair Dismissal Application at Item 3.1

 6 (2011) 203 IR 1

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