Graham Jones v Holcim Australia Pty Ltd

[2010] FWA 3129

[2010] FWA 3129

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Graham Jones
v
Holcim Australia Pty Ltd
(U2010/5912)

COMMISSIONER THATCHER LISMORE, 16 APRIL 2010

Extension of time – exceptional circumstances.

[1] On 10 February 2010 Fair Work Australia (FWA) received an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 on behalf of Graham Jones whose employment as the Account Manager of the Ballina Sand and Gravel Yard, NSW Aggregates, Holcim Australia Pty Ltd (the company) had been terminated on 25 January 2010.

[2] In respect of applications for a remedy for unfair dismissal, s.394 provides:

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

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

(a) the reason for the delay; and

(b) whether the person first 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.

[3] Therefore the unfair dismissal application was lodged 2 days after the 14 day period. The application cannot proceed unless an extension of the 14 day period is allowed. Mr Jones seeks such an extension.

The law

[4] There are important differences between s.394 and s.643 of the former Workplace Relations Act 1996, in relation to the time for the lodgement of unfair dismissal applications, namely:

(a) The limitation period within which applications must be lodged has been reduced from 21 days (under s.643) to 14 days:

(b) Under s.394 FWA may only exercise its discretion to allow a further period for the lodgement of applications where it is satisfied that there are ‘exceptional circumstances’ (taking into account prescribed considerations). No ‘exceptional circumstances’ limitation existed under s.643;

(c) Whereas under s.643 the principles established by the former Industrial Relations Court in Brodie-Hanns v MTV Publishing Ltd¹ provided guidance for the Commission, s.394 prescribes factors that FWA must take into account;

(d) Whilst the Brodie-Hanns principles were not exhaustive,² the factors in s.394(3) are an exhaustive list of the considerations that FWA must take into account.³

[5] The period within which an application under s.394 must be made is a limitation period with which an application must comply. The rationale for limitation periods was reviewed by the High Court in Brisbane South Regional Health Authority v Taylor.⁴In that decision McHugh J stated:

The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. … The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost[16]. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed[17]. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them[18]. … The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible[24].

In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is ‘to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.’[25] But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.⁵(Footnotes omitted)

[6] Section 394(3) requires FWA to be satisfied that there are ‘exceptional circumstances’ to justify extending the 14 day time period. Therefore, for the unfair dismissal application to proceed, Mr Jones must establish an exceptional case.

[7] In Baker v The Queen,⁶the High Court considered the term ‘special reasons’ in the context of a legislative provision that prohibited a court from determining, in respect of prisoners who were serving sentences of life imprisonment and who were the subject of non-release recommendations, a minimum term and an additional term for the sentence unless ‘special reasons’ justified making the determination. In that decision, Gleeson CJ, when referring to the term ‘special reasons’ stated:

There is nothing unusual about legislation that requires courts to find ‘special reasons’ or ‘special circumstances’ as a condition of the exercise of power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors. ⁷

[8] In Maan v Minister for Immigration and Citizenship⁸ the Full Court of the Federal Court considered the expression ‘exceptional circumstances’ in the context of a requirement in the Migration Regulations 1994 that the Minister cancel the visa of a prescribed class of person if the Minister was satisfied that the visa holder had not complied with a prescribed condition and the non-compliance was not due to exceptional circumstances. In their decision Dowsett, Greenwood and Collier JJ stated:

Although the expression ‘exceptional circumstances’ is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham Cornwall CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.⁹

[9] It is clear from the above that the 14 days represents the legislature’s judgement that the welfare of society is best served by unfair dismissal applications being lodged within that limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. The limitation period is a relatively short period of 14 days, underlining the legislature’s intention that applications under s.394 are dealt with expeditiously. Specifically, the discretion to allow an extended period can be exercised where FWA is satisfied there are exceptional circumstances, by making an overall judgment after into account the considerations listed only in subparagraphs 394(3)(a) to (f).

Facts

[10] A sworn statement by Mr Jones was tendered without objection by the company. Also evidence on his behalf was given by Mr Luke Harrison, a solicitor with Hosie & Partners, Solicitors, Ballina. Evidence for the company was given by Ms Prudence Brown, its Human Resources Manager, Aggregates, Sydney.

[11] On Monday 25^th January 2010 the General Manager, NSW Aggregates, telephoned Mr Jones and notified him of the company’s decision to terminate his employment following an investigation in relation to his conduct. He was directed to leave work.

[12] That same day Mr Jones telephoned Hosie & Partners, Solicitors, Ballina and spoke with Mr Harrison who scheduled an appointment on 27 January 2010 to discuss the dismissal. An earlier appointment could not be arranged because Tuesday 26^th January was a public holiday.

[13] Mr Jones met with Mr Harrison on Wednesday 27 January 2010. At the meeting Mr Jones provided various documents, including papers regarding the investigation and certain employment policies.

[14] During the conference Mr Harrison advised Mr Jones that any unfair dismissal application must be lodged within 14 days of the date of dismissal. Based on the initial legal advice which he received, Mr Jones gave Mr Harrison instructions to commence drafting the unfair dismissal application. Mr Jones advised Mr Harrison that he would provide any additional information he thought was relevant to the case.

[15] Also on 27 January 2010, Ms Brown posted from Sydney to Mr Jones at his Ballina post office box address a letter confirming that the termination of his employment was effective 25 January 2010.

[16] All of the additional information that Mr Jones was to provide to Mr Harrison was furnished by Mr Jones popping in and out of the office of Hosie & Partners over the next five days.

[17] Mr Harrison went through several drafts of the application, which he completed on Thursday 4 February 2010.

[18] Mr Harrison, who was not authorised to sign office cheques for filing fees, drafted a covering letter to the FWA office in Sydney and on 5 February 2010 signed the application and put the material, which included a cheque in favour of FWA dated 5 February 2010, in the office mail tray which the ‘mail lady collects and posts at the Ballina post office’.

[19] On Friday 5 February 2010 Mr Jones contacted Mr Harrison and asked if the application had been sent. Mr Harrison advised him that the application had been completed and would be sent that day.

[20] The application was received by Fair Work Australia, Sydney on Wednesday 10 February 2010.

s.394(3) factors

Reason for the delay (paragraph (a))

[21] Mr Jones’ conduct was not a reason for the delay in lodgement of the application. He contacted a firm of solicitors and spoke to Mr Harrison on the day of his termination. He met with Mr Harrison on the next working day and after instructing him to prepare an application for an unfair dismissal remedy had provided Mr Harrison with the last of the documentation that he thought might be relevant (which would have included the letter dated 27 January 2010 from Ms Brown) within five days thereafter.

[22] In his submissions Mr Harrison explained that Hosie & Partners is a small country practice that does not have the staffing resources to ensure that documents are prepared several days prior to filing.

[23] Mr Harrison would not concede that the reason for the delay was representative error on his part. Rather he submitted that there was a bona fide attempt to mail the application on 5 February 2010 and if that occurred it was safe to assume that it would arrive in Sydney on Monday 8 March 2010. It was exceptional and uncommon that it didn’t arrive within that period.

[24] Mr Harrison could not be a 100% sure that the application was posted on Friday 5 February 2010 as he did not see the ‘mail lady’ come in and take the document. If it was not posted on the Friday it would have been posted on Monday 8 February 2010 which, he submitted, was still within the 14 day time limit. 10

[25] The Fair Work Australia Rules 2009 [Interim] prescribe means for lodging documents which are applications for an unfair dismissal remedy with FWA, in addition to postage, namely by:

(a) Physically delivering the document to a FWA office, 11 or such other place as authorised,12 between the hours of 9.00am and 5.00pm (Rule 7.2(a));

(b) Facsimile transmission (Rules 7.2(b) and 21);

(c) Email (Rules 7.2(c) and 20;

(d) Online via the web (Rule 7.2(d); and

(e) Telephone (Rule 14).

[26] Clearly there were many other options open to Mr Harrison (rather than relying on normal postage) which would have ensured that the application dated 5 February 2010 was lodged with FWA before close of business on Monday 8 February 2010. Mr Harrison now states that as a result of this case all further applications have been faxed at the time they have been posted.

[27] For reasons that he did not explain, Mr Harrison did not seek to post the application by Express Post. However from my own inquiries with Australia Post it seems that even if a letter to Sydney was posted by Express Post from Ballina before the 3.00pm or 3.30pm deadlines on a Friday, Australia Post will not guarantee that it will be delivered in Sydney on the Monday. This information is generally available as it is recorded on an Express Post envelope. It seems that Ballina mail is delivered to Lismore before it is dispatched to Sydney.

[28] After considering what occurred during the 14 day prescribed period, I find that the reason for the delay in lodging the application was the conduct of Mr Harrison, who from at least 27 January 2010 was responsible for ensuring that it was lodged with FWA within the prescribed 14 day period. 13 Further, I find that the reason for the delay did not include the conduct of Mr Jones who, having acted in a timely manner, had every reason to expect that Mr Harrison would lodge his application within the prescribed time period.

When the applicant first became aware of the dismissal (paragraph (b))

[29] Paragraph 394(3)(b) is intended to address situations where the applicant fails to lodge the application within 14 days because they were unaware they had been dismissed until some time after the dismissal occurred.¹⁴ This factor is not relevant to these proceedings as Mr Jones became aware on 25 January 2010 that his employment was to be terminated with effect from that date.

Action taken to dispute dismissal (paragraph (c))

[30] Apart from lodging the application for an unfair dismissal remedy Mr Jones took no action to dispute his dismissal.

Prejudice to employer (paragraph (d))

[31] There is no evidence to suggest that the company’s capacity or ability to defend the application has been adversely affected by the delay of 2 days.

[32] The prejudice relied on by the company is the expense and disruption that it would incur if Mr Jones’ application is allowed to proceed.

Merits of application (paragraph (e))

[33] This factor is based on one of the Brodie-Hanns principles,¹⁵ namely:

(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

[34] Therefore the Australian Industrial Relations Commission’s consideration of that principle remains relevant toFWA’s consideration of this factor.In considering that principle, the Commission considered that it must, without undertaking an in-depth analysis of the merits of the application, endeavour to make some assessment of its merits. In Kyvelos v Champion Socks Pty Limited¹⁶  the Full Bench stated:

In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement. …

It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice ...¹⁷

[35] The company submitted that Mr Jones’ application for an unfair dismissal remedy is without merit, having regard to the material before FWA, including Mr Jones’s admissions to certain conduct. 18

[36] In his written submissions Mr Jones outlines 11 grounds in support of why his dismissal was harsh, unjust or unreasonable which include that his behaviour warranted no more than a formal warning, there was inequality of treatment of himself and another comparable employee, the existence of a workplace culture of swearing, he had 17 years service with no prior disciplinary action or warnings, his work performance reviews were good and there were deficiencies in the investigation process.

[37] On the material before FWA, I am not in a position to conclude that the unfair dismissal application is not without merit.

Fairness with other persons in similar position (paragraph (f))

[38] This is not a relevant factor in these proceedings.

Conclusion

[39] Whether or not special circumstances exist requires an overall judgement of all of the factors prescribed by s. 394(3). In my opinion, after taking into account the factors in paragraphs 394(3)(a) to (f), exceptional circumstances have been established.

[40] The most significant factor in favour of my decision is the reason for the delay of 2 days. The failure of a representative to lodge an unfair dismissal application within the prescribed time period may, generally speaking, not be unique or even unusual. However the circumstances involving Mr Harrison’s failure to ensure that Mr Jones’ application was lodged within the prescribed time period, notwithstanding Mr Jones contacting him on 5 February 2010, are, in my experience, not normally those encountered in FWA’s consideration of unfair dismissal applications.

[41] I am satisfied that there are exceptional circumstances in this case which are not regularly, routinely or normally encountered, such as to enable and warrant the exercise of the discretion to allow an extension of the timeframe for the making of Mr Jones’ application for an unfair dismissal remedy.

[42] The time period for the lodgement of the application is extended until 10 February 2010. I order accordingly.

[43] Mr Jones’ application will now proceed under the Act.

COMMISSIONER

Appearances:

Mr L Harrison, Solicitor for the applicant

Mr A Woods, Solicitor for Holcim Australia Pty Ltd

Hearing details:

2010.

Lismore:

April 12.

¹ (1995) 67 IR 298.

² As stated by Marshall J in Jennings v Salvation Army, 24 October 2003, 128 IR 366, 369 at para 10, they ‘were intended to guide the exercise of discretion and were not meant to be exhaustive principles.’

³ Explanatory Memorandum to the Fair Work Bill 2008, paragraph 1573.

⁴ [1996] 186 CLR at 541.

⁵ At pages 551, 552 and 553.

⁶ [2004] HCA 45 (1 October 2004).

⁷ At para 13.

⁸ [2009] FCAFC 150 (23 October 2009).

⁹ At para 51.

 10   In making that assertion Mr Harrison was under the mistaken belief that if the application was received by FWA on 9 February 2010 it would have been lodged within the 14 day limit.

 11   Rule 7.2(a) includes a Note 1 which contains the web link to the addresses of FWA offices.

 12   Rule 7.2(a) includes a Note 2 which states that FWA has arrangements with the Fair Work Ombudsman and the registry of the Federal Court of Australia to accept documents.

 13   A responsibility that is accepted by Mr Harrison (PN210).

¹⁴ Explanatory Memorandum to Fair Work Bill 2008, paragraph 1574.

¹⁵ Explanatory Memorandum to Fair Work Bill 2008, paragraph 1573.

¹⁶ Print T2421, 10 November 2000, per Giudice J, Acton SDP and Gay C.

¹⁷ At para 14.

 18   Which appeared to be conceded by Mr Harrison not challenging paragraphs 12 and 15 of the witness statement of Ms Brown (Exhibit W1).

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