Helen Seldenv.Sydney Water Corporation
[2011] FWA 3330
•27 MAY, 2011
[2011] FWA 3330 |
|
DECISION |
Fair Work Act 2009
s.394 — Application for a remedy for alleged unfair dismissal
Helen Selden
v.
Sydney Water Corporation
(U2010/14373)
COMMISSIONER CONNOR | WOLLONGONG, 27 MAY, 2011 |
Applications for alleged unfair dismissal - out-of-time application - representational error as a cause of the delay
Preliminary
[1] Mrs Helen Selden was from the middle of 1976 employed by the Sydney Water Corporation. She was located in the Wollongong region but the position she occupied (an accounts payable officer) was subsequently relocated to Sydney (Parramatta). There are certain medical restrictions on Mrs Selden's travel from her residence in the Illawarra region to the Parramatta office and as a consequence she was medically retired on Tuesday, 2 November, 2010. Mrs Selden is a member of the Australian Municipal, Administrative, Clerical and Services Union [the ASU] which on Wednesday, 24 November, 2010 lodged an application on her behalf under s.394 of the federal Fair Work Act, 2009 (the FW Act) to Fair Work Australia (FWA).
[2] Conciliation had been arranged by teleconference on Monday, 13 December, 2010. That attempt at conciliation was unsuccessful, however, and the matter was allocated to me for arbitration. All proceedings before me were conducted in the premises at 90 Crown Street, Wollongong which Fair Work Australia now shares with the Industrial Commission of New South Wales.
[3] I set the matter down for mention and programming on Thursday, 27 January, 2010. However, at the request of Mrs Selden's representative, I adjourned those proceedings for mention and programming on Tuesday, 15 February, 2011 and ultimately for arbitration in a hearing on Wednesday, 20 April, 2011. Mr Fry represented Mrs Selden and the ASU in the hearing. He called Mrs Selden to give evidence in the hearing. He also called Mr Benjamin Chapman, who had up to Wednesday, 20 April, 2011 been an organiser of the ASU, as a witness in the hearing. Mr Mattson represented Sydney Water in the hearing. He called Mr Nicholas Saunders, the human resources manager of Sydney Water, as a witness in the proceedings.
[4] Mrs Selden has permanent medical restrictions and Sydney Water has received advice to that effect from her treating vascular surgeon [Dr Laurencia Villalba]. Those restrictions do not arise from her work for Sydney Water, however. Nevertheless, I believe that the medical retirement of an employee, against her wishes, would be still properly categorised as a dismissal for the purposes of the unfair dismissal jurisdiction flowing from s.394. It is Mrs Selden's assertion, and the assertion of Mr Fry on her behalf, that there would be comparable clerical work available to her in Sydney Water in the Illawarra region.
[5] However, there are jurisdictional objections to the ASU application. Firstly, Sydney Water argued that the application should be dismissed because it was lodged outside the 14 day period prescribed in s.394(2). Her services were terminated on Tuesday, 2 November, 2010 and the ASU lodged her s.394 application 22 days later, on Wednesday, 24 November, 2011. Secondly, Sydney Water asserted that the s.394 application has no reasonable prospects of success since it was acting on medical advice concerning the restrictions imposed on her for travelling to Parramatta. (Mr Mattson is not pressing that second argument at this point.)
The Delay in Lodging the Application
[6] The question of any delay in the lodgement of a s.394 application must be heard as a threshold issue by virtue of s.396. Under s.394(3), members of FWA hold a discretion to admit out-of-time applications. It reads as follows:
"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."
[7] Formerly, the basis of consideration of out-of-time unfair dismissal claims in the Federal industrial jurisdiction was the authoritative decision of Marshall J in Brodie-Hanns v. MTV Publishing Company (1995) 67 IR 298 at pp.299 and 300, ie whether there were "...special circumstances..." to justify an exercise of discretion. But the opening words of s.394(3) — that FWA is "...satisfied that there are exceptional circumstances..." to justify allowing the matter to proceed to hearing and a determination on the merits — raise different considerations. Out-of-time s.394 applications must now be considered in that context.
[8] That distinction was discussed by Lawler VP in his decision in Johnson v. Joy Manufacturing Company Pty Limited, trading as Joy Mining Machinery[2010] FWA 1394 at paras 22 and 24, ie that s.394(3):
"....represents a significant departure from the previous position under the Workplace Relations Act, 1996 (WR Act). The discretion to extend time for an unfair dismissal application under the WR Act was found in s.643(14)... Marshall J (in Brodie Hanns v. MTV Publishing Company) held that '...special circumstances are not required...'. By including a requirement in s.394(3) that there be '...exceptional circumstances...', the legislature must be taken to have intended a significant narrowing of the discretion to extend time..."
[9] In written submissions, Sydney Water has pointed out that:
"...the applicant was first notified that she might be medically retired in a case conference held with her on Tuesday, 3 August, 2010 in the respondent's Coniston office. This was mentioned in the minutes of this meeting, a copy of which was posted to the applicant on Monday, 16 August, 2010. The possibility of medical retirement was reiterated in various correspondence from Mr Saunders to the applicant, specifically a letter sent to the applicant on Thursday, 2 September, 2010, a telephone call to the applicant on Thursday, 16 September, 2010 and a further letter sent to the applicant on Friday, 17 September, 2010. When her employment was terminated on Tuesday, 2 November, 2010 the applicant was verbally advised that the reason for the dismissal was medical retirement. This was reiterated in a letter handed to her on the same day..."
[10] Mr Fry's argument for me to exercise my discretion to admit Mrs Selden's s.394 application to go forward to hearing relies essentially on representational error on the part of the ASU — the delay was the fault of the ASU in processing the matter. Mrs Selden indicated in her evidence that a week after her medical retirement — on Monday, 9 November, 2011 she attempted to contact the ASU, leaving a message on the answering machine for an ASU organiser. Mr Chapman telephoned her later that day and informed her that he would be handling the matter and she left it in his hands. Mrs Selden indicated in a written statement which formed the basis of her evidence:
"...I agreed to do this and made it clear to Mr Chapman that I wanted to go for unfair dismissal and that I was seeking reinstatement to my position in Sydney Water. I had full faith in Mr Chapman and trusted that he would be able to precede and escalate the matter on my behalf. I was very surprised and shocked to learn that the application for unfair dismissal remedy had been filed outside of the time limits prescribed within the FW Act..."
[11] Mr Chapman indicated in his evidence that the internal procedure established for the ASU in the processing any claims for unfair dismissals of members requires the ASU organiser in the first instance to bring the matter to the attention of the assistant secretary who refers them to the industrial services team. Mr Chapman admits that he was remiss in not alerting the assistant secretary and chose instead to handle the matter himself. And he did.
[12] Mr Chapman contacted Mr Saunders on Tuesday, 16 November, 2010 and began negotiations with him concerning Mrs Selden, communicating by e-mail to him. Mr Saunders responded to by e-mail on Friday, 19 November, 2010 indicating that as far as Sydney Water was concerned, "..this matter is closed...". Mr Chapman replied by e-mail on Monday, 22 November, 2010 — already 8 days after the prescribed time in s.394(2) — in which he stated:
"...I am happy to have a meeting to discuss this matter as per the dispute resolution process, but if you are of the opinion that your substantive position is unlikely to change would prefer to go straight to Fair Work Australia.. We will be lodging a dispute re the redeployment provisions of the agreement today and an unfair dismissal claim. In the event we cannot reach agreement first, I will hold the unfair dismissal in order for the redeployment dispute to be dealt with first..."...."
[13] Mr Saunders replied by telephone on Monday, 22 November, 2010, indicating to Mr Chapman that the position of Sydney Water would not change and that it reserved its rights with respect to jurisdictional issues — with respect to which he did not elaborate. The s.394 application was lodged two days later. The ASU also lodged a notification of a dispute under s.739 which came before Sams DP for a conference on Thursday, 16 December, 2010 and, notwithstanding what Mr Chapman wrote in his e-mail on Monday, 232 November, 2010, it was adjourned to await the outcome of these s.394 proceedings.
[14] It is Mr Mattson's submission that the s.394 application was, in fact, an afterthought on the part of Mrs Selden and the ASU. That at all times leading up to the lodgement of the s.394 application both Mrs Selden and Mr Chapman had intended to proceed with the conference under s.739 and the correspondence between the parties spoke in that respect only of a "dispute". It would appear that Mr Chapman was more familiar with the conference proceedings flowing from s.739 than he was with s.394 applications alleging unfair dismissal.
[15] Mr Fry relies in support of his submission to a decision of Roberts C on Wednesday, 28 April, 2010 in Setterfield v. Syefile Pty Limited[2010] FWA 3351. In that case the delay in lodging the s.394 application was caused by the inactivity of the applicant's representative. Roberts C referred in that decision (at para.18) to comments made by Lord Bingham Cornall CJ in R v. Kelly (2000) 1 QB 198 at p.208, viz:
"....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..."
[16] Nevertheless, in Setterfield v. Syefile Pty Limited Roberts C was prepared to exercise his discretion under s.394(3) to permit the matter to go forward to a substantive hearing, commenting (at paras 20 and 21) that:
"...in this case, it appears clear that representative error is the major, and possibly only, factor in the late lodgement of the application. (The applicant) was diligent in pursuing his case with his solicitors and was not the cause of any delay. He was entitled to rely on the advice of his solicitors.
All in all, the admitted error by (the solicitor) is sufficient, in my view...to constitute exceptional circumstances sufficient to render extension of time just and equitable. I therefore grant (the applicant) an extension of time and the time for lodgement of his application is extended until the actual date of filing..."
[17] Mr Mattson submitted that, in the first instance, he did not necessarily accept that this was a case of simple representational error. He asserted that Mrs Selden had handed the matter over to Mr Chapman to deal with and had left it entirely in his hands, not pursuing the matter with any rigour from that time. I note in that respect comments made by the Full Bench (Lawler VP, Sams DP and Williams C) in Nulty v. Blue Star Group Pty Limited[2011] FWAFB 975 at para.14, viz:
"...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 to 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..."
[18] Mr Mattson argues that Mrs Selden did not act to ensure that the ASU pressed her claims within the time limits. However, I have to say I would expect that, once a trade union member has brought her concerns to her trade union, she would be entitled to rely on it to pursue her claim and I do not believe that it is open to Sydney Water to assert inactivity on her part for its failures in that respect — at least from Monday, 22 November, 2010 when Mrs Selden raised the issue with him. But I note that by that time Mrs Selden had already delayed for one week in bringing the matter to him for attention.
.
[19] In terms of s.394(3)(e) I should also consider the possible merits of the application made, at least to the extent of any material before me in this preliminary hearing. In bringing her employment to a close, Sydney Water was acting on medical advice that she would not be able to travel to Parramatta where her position has been relocated. It is a common approach by all courts and tribunals to have regard to the possibility of success for an applicant in considering jurisdictional issues of this nature [Burns v. Grigg (1967) VR 871 at p.872 and Mitchelson v. Mitchelson (1979) 24 ALR 522 at p.524]. Essentially, if an out-of-time applicant is unlikely to succeed, it goes without saying that to refuse her claim would not, in fact, constitute any hardship or unfairness to her. It would do no more than delay the inevitable and avoid considerable cost and inconvenience to both parties.
[20] The ASU accepts that travel for Mrs Selden to the office in Parramatta would not be feasible for her but it presses for her to continue working in Coniston. Sydney Water argue that there is no appropriate position available to her locally. Mr Fry argued in his submissions that there would be no prejudice to Sydney Water if Mrs Selden's claim went forward to arbitration [s.396(d)] and that Sydney Water, as a large organisation would presumably have the capacity to provide suitable duties locally, ie at the Coniston office. I say presumably because there is no evidence before me to indicate what suitable work could be available in the Illawarra region of Sydney Water.
[21] In terms of s.391(1)(b) reinstatement in that sense includes appointment to "...another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal...". Sydney Water still argues that there is no suitable position available to her locally. But one thing is clear to me: in these s.394 proceedings I have no jurisdiction to create a special position for Mrs Selden in the Illawarra operations of Sydney Water. That can only mean that, having regard to the directions to me in s.394(3) to, among other things, consider "...fairness as between the person and other persons in a similar position...", I have some concerns that if Mrs Selden's application goes forward to be considered on its merits, her reinstatement would be likely to be at the expense of some other employee already occupying such a position.
Conclusion
[22] When legislation so clearly sets out time limits on the lodgement of applications, the prima facie position is that there should be strict compliance with those time limits. Otherwise the time limit imposed so clearly by legislation would be defeated. Sydney Water is entitled to rely on that time limit imposed by s.394(2) as a defence to the claim made against it. [Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541]. In this case Mr Fry has to satisfy me that there are "exceptional circumstances" to justify the delay in the ASU lodging its s.394 application on behalf of Mrs Selden. Consistent with the test of "exceptional circumstances" in s.394(2), FWA appears to me to have taken a fairly strict view on such matters [Cheval Properties Pty Limited v. Smithers[2010] FWAFB 7251]. I note, however, that the delay in this case was a relatively modest one.
[23] Notwithstanding Mr Mattson's submissions to the contrary, I believe that the delay in the ASU lodging its s.394 application was chiefly due to representational error on the part of Mr Chapman. In the decision of the Full Bench of FWA (Lawler VP, O'Callaghan SDP and Bisset C) in McConnell v. A and P M Fornataro [2011] FWAFB 466 considered this issue and (at para.35) the majority (O'Callaghan SDP and Bissett C) adopted the following approach:
"...Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged..."
[24] And also accepted that:
"...a distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant. The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.
Error by an applicant's representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted..."
[25] Therefore, an error on the part of the representative of a dismissed employee in lodging a s.394 application is not, by itself, a sufficient ground for an employer to rely on in dismissing the matter. But nor is it a "golden bullet", as Mr Mattson described it in his submissions, to permit me to exercise my discretion in favour of an out of time applicant. Nevertheless, it is clearly one factor which should be weighed up against the other issues I have discussed in these proceedings [Sebastian v. Roads and Traffic Authorty of New South Wales (1995) 62 IR 190 at p.194]. All relevant considerations should be taken into account in determining whether to grant an out-of-time application to proceed to substantive hearing [Brady v. Kenedy, trading as "Sardines" (1999) 91 IR 258].
[26] It is the combination of the factors before me which have influenced me to reject the s.394 application lodged by the ASU on behalf of Mrs Selden. Firstly, Mrs Selden was on notice as far back as Tuesday, 3 August, 2010 of the prospect that she may be medically retired. Secondly, after she was medically retired she delayed notifying Mr Chapman concerning the matter for a week. Thirdly, whilst Sydney Water would have been aware from that time that the ASU would be challenging Mrs Selden's medical retirement by way of a s.739 notification, I believe that they would not have been aware of a s.394 application and, notwithstanding Mrs Selden's evidence in this hearing that she had sought to advance her claims as an unfair dismissal, it appears to me to have been an afterthought on both her part and the part of Mr Chapman. Fourthly, there is the question ultimately of the practicability of a suitable remedy for her, having regard to her medical condition and her inability to travel far [s.394(3)(e)] and the fact that her reinstatement may adversely effect other employees [s.394(3)(f)]. Those issues, together with the issue of representational error, in my opinion, does not support a decision to exercise my discretion in her favour. I do not believe that Mr Fry has established "...exception circumstances..." to advance Mrs Selden's claim.
[27] I therefore dismiss the s.394 application lodged for and on behalf of Ms Selden.
COMMISSIONER
Appearances:
Edmund Fry of the Australian Services Union for Helen Selden
James Mattson of Barter Perry for Sydney Water
2011
Wollongong
April, 20
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