Harley Frankfurt v Downer EDI Engineering Power Pty Ltd

[2014] FWC 1236

[2014] FWC 1236 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Harley Frankfurt
v
Downer EDI Engineering Power Pty Ltd
(C2013/6874)

COMMISSIONER ROBERTS SYDNEY, 24 FEBRUARY 2014

Application to deal with contraventions involving dismissal - extension of time for filing application.

[1] This decision concerns an application filed by Mr Frankfurt on 29 November 2013 pursuant to s.365 of the Fair Work Act 2009 (the Act) for Fair Work Australia (now the Fair Work Commission) to deal with alleged contraventions involving the termination of his employment by Downer EDI Engineering Power Pty Ltd (Downer or the Company). The termination of Mr Frankfurt’s employment occurred on 24 October 2013.

[2] The substantive application was the subject of conciliation conducted by me on 19 December 2013 but this was not successful. The Company advised that it objected to an extension of time and the matter was later set down for hearing in Sydney on 13 February 2014.

[3] At the hearing Mr Frankfurt represented himself and Downer was represented by Ms V Mirkovic, the Company’s Senior IR Business Partner, with Mr R Pegg, the Company’s General Manager, Human Resources.

[4] As noted above, the substantive application was filed on 29 November 2013 following the termination of employment on 24 October 2013. The application was therefore lodged some 15 days late.

Legislative Framework

[5] Section 366 of the Act provides:

“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.”

Background

[6] Mr Frankfurt was first employed by the Company on or about 17 June 2013 and his employment was terminated at the initiative of the Company within the qualifying employment period for alleged performance issues.

[7] On 11 November 2013 Mr Frankfurt filed an application pursuant to s.773 of the Act alleging a contravention of s.772(1) of the Act. That application was lodged within time. In his form F9 (Application for FWA to deal with an unlawful termination dispute) there appears at part 7, the following notation: “Section 723 provides that a person must not make an unlawful termination application in relation to conduct if the person is able to make a general protections court application in relation to the conduct (see Division 8 of Part 3-1). Do you consider that you cannot make a general protections court application?” Mr Frankfurt answered ‘No’ to that question.

[8] The s.773 application was then allocated to Commissioner McKenna. The Commissioner’s Associate wrote to Mr Frankfurt by email on 14 November 2013 in the following terms:

“I refer to the above application, which has recently been allocated to Commissioner McKenna. The Commissioner has instructed me to write to you in the following terms.

The application has been made pursuant to s.773 of the Fair Work Act 2009 (“the Act”). Noting your response at Q.7 of the application form and noting also that the named respondent, Downer EDI Engineering Power Pty Ltd T/A Downer, is a company, you may wish to seek your own further advice concerning the appropriateness of making an application under s.773 of the Act.

Should you decide to discontinue this application, please complete the attached Notice of Discontinuance and forward it to this office on my contact details below. A copy of any Notice of Discontinuance forwarded to this office must also be copied to the respondent. If a Notice of Discontinuance is not received by 4.00pm on Thursday 21 November 2013, after you have had the opportunity to seek advice, I will contact you again.”

[9] Mr Frankfurt’s s.773 application then proceeded to conciliation before Commissioner McKenna on 25 November 2013. Commissioner McKenna’s Associate then sent an email to Mr Frankfurt later on the same day which said:

“Further to matters discussed in the proceedings, please find below correspondence originally forwarded to you on 14 November 2013, which attaches a Notice of Discontinuance.

I note the matter is otherwise stood over pending the filing and service of the Notice of Discontinuance, anticipated within seven days.”

[10] Mr Frankfurt then filed a Notice of Discontinuance dated 29 November 2013. The Notice of Discontinuance was accompanied by an email of the same date stating:

“Please find attached the completed Notice of Discontinuance. Immediately after sending this Notice, the matter originally filed on F9 will be refilled using the correct form F8 as discussed during Notice of Listing - 25 November 2013.”

[11] On the same date, Mr Frankfurt filed his current application pursuant to s.365 of the Act. As noted above, Mr Frankfurt’s s.365 application was lodged some 15 days out of time and Downer objected to an extension of time. Notwithstanding that objection, a conciliation conference was held before me in Sydney on 19 December 2013. That conciliation was unsuccessful and the extension of time issue was then set down for hearing.

Oral submissions

[12] At the hearing on 13 February 2014, both parties made oral submissions.

Mr Frankfurt

[13] Mr Frankfurt’s submissions were brief. He said:

“Originally, there was an application that I had put before the Commission to consider wrongful dismissal case. At that time, as it went through the proceedings, it was evident that it was wrongfully submitted and given the discussion there was still an opportunity at that time to try and come to some type of conciliation with the company.” 1 Mr Frankfurt went on to say: “And it was understood at that time that effort to try and come to that type of conciliation at the time was basically because I would be submitting the appropriate form with my claim after that meeting that took place.”2

[14] Mr Frankfurt argued that his first application pursuant to s.773 of the Act was lodged within time and he had discussions with Commissioner McKenna’s office as to the discontinuance of that application and its replacement by an application pursuant to s.365 of the Act. He said: “And so in seeking some legal advice, they then recommended that I communicate with the Commission, once again, to discuss an extension of time option because I was within a few days of being out of time.” 3

Downer

[15] Downer’s submissions were also brief. Ms Mirkovic said:

“At a conciliation hearing on 25 November, Commissioner McKenna again advised the applicant during the teleconference that the application was actually submitted under the wrong section and that he may wish to seek further representation.” 4

[16] Ms Mirkovic went on to cite the decision in Brodie-Hanns v MTV Publishing Ltd 5, noting that “the prima facie position is that the time limit should be complied with unless there is an acceptable explanation of a delay which makes it equitable to extend.” She went on to argue that Mr Frankfurt has taken no action to contest the termination of employment other than the lodging of his applications first under s.773 and then under s.365 of the Act. She went on to say that the absence of prejudice to the Respondent was not a reason to extend time.

Reason for the delay

[17] The Applicant was not particularly clear in proceedings in articulating his reasons for his application being lodged late. Accordingly, in addition to taking his submissions into account, I have also paid close regard to events surrounding his s.773 application in determining the extension of time issue.

[18] It is not controversial that Mr Frankfurt’s s.773 application was lodged within time on 11 November 2013. There followed a series of emails from Commissioner McKenna’s office to Mr Frankfurt, the first of these being on 14 November 2013. That email raised the issue of whether Mr Frankfurt had applied under the correct section of the Act. Importantly, the email of Commissioner McKenna’s Associate of 14 November stated that if a Notice of Discontinuance relating to the s.773 application was not received by 21 November 2013 then Commissioner McKenna’s office would again contact Mr Frankfurt. The next action in this matter appears to have been the conciliation conference held before Commissioner McKenna on 25 November 2013. That conference was followed on the same day by another email from Commissioner McKenna’s Associate stating that “the matter is otherwise stood over pending the filing and service of the Notice of Discontinuance, anticipated within seven days.” Mr Frankfurt then filed a Notice of Discontinuance on 29 November 2013 and lodged an application pursuant to s.365 of the Act on the same day.

Action taken by the Applicant to dispute the dismissal

[19] Mr Frankfurt does not appear to have taken any action to dispute his dismissal other than the filing of his applications pursuant to s.773 and then s.365 of the Act.

Prejudice to the Respondent

[20] The Respondent claimed that some prejudice would attach if the application was to be pursued but I am not convinced that the Company would suffer any significant prejudice due to the delay in Mr Frankfurt filing his s.365 application, but that in itself is not a factor which militates in favour of the granting of an extension of time.

Merits of the application

[21] Merit issues are strongly contested between the parties. Without relevant sworn evidence I am unable to reach a concluded view as to merit and, in any event, an application for an extension of time does not require a detailed assessment of the merits of the substantive application. The question of merit has been neutral in my consideration.

Fairness between the Applicant and other persons in a similar position

[22] In the case before there does not appear to be anything which makes this consideration relevant and it has therefore been neutral in my decision making.

Conclusion

[23] Section 394 of the Act requires me when considering whether to grant an extension of time to be “satisfied that there are exceptional circumstances …” The onus is on Mr Frankfurt to establish them. In this application, Mr Frankfurt appears to rely on the earlier handling of his s.773 application by Commissioner McKenna and her Chambers as constituting exceptional circumstances.

[24] The concept of ‘exceptional circumstances’ was considered by Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd 6. In that decision, his Honour considered the ordinary English meaning of the word ‘exceptional’7. In so doing, he referred to the decision of Commissioner Whelan in Parker v Department of Human Services8where the Commissioner said:

“Branson J in a decision of the Full Court of the Federal Court 9 described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision also noted that the expression had been considered by the courts on numerous occasions:

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.  10”

[25] The Concise Oxford Dictionary 11 relevantly defines ‘exceptional’ as “forming an exception; unusual…” In my view, the word ‘exceptional’ does not carry with it connotations of meaning approximate to ‘extraordinary’ or ‘extreme’.12

[26] The circumstances in this case are somewhat unusual. All in all, I am satisfied that Mr Frankfurt pursued his s.773 application in good faith and I note that conciliation of that application occurred despite the email from Commissioner McKenna’s Associate of 14 November 2013. Mr Frankfurt was in my view entitled to continue with that application pending the outcome of the conciliation conference on 25 November 2013. On the same day he was informed that he should file a Notice of Discontinuance in that matter and he complied with that request on 29 November 2013 and filed his current application on the same day. I am further satisfied and find that the course of events associated with the original s.773 application constitute exceptional circumstances. Accordingly, after due deliberation, I have decided that the equitable course in this matter is to extend the time of filing of the s.365 application until the actual date of filing.

[27] As conciliation has already occurred in relation to both the s.773 application and the current s.365 application, I can see no point in setting down further conciliation. Accordingly, a certificate will be issued today pursuant to s.369 of the Act.

[28] An order reflecting this decision is in PR548110.

COMMISSIONER

Appearances:

H Frankfurt, the Applicant.

V Mirkovic with R Pegg for Downer EDI Engineering Power Pty Ltd.

Hearing details:

2014.

Sydney:

February 13.

 1   Transcript PN18.

 2   Transcript PN20.

 3   Transcript PN47.

 4   Transcript PN60.

 5 (1995) 67 IR 298.

 6   [2010] FWA 1394.

 7   Ibid, at paragraph 28.

 8   [2009] FWA 1638.

 9 Hewlett Packard Aust Pty Ltd v GE Capital Finance Pty Ltd (2003) FCAFC 256.

 10   Maan v Minister for Immigration and Citizenship (2009) FACFC 180.

 11   Oxford University Press, Oxford, 1982.

 12   Transcript PNs111-112.

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