Ian Cameron v Metecno Pty Ltd T/A Bondor
[2013] FWC 2564
•30 APRIL 2013
[2013] FWC 2564 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ian Cameron
v
Metecno Pty Ltd T/A Bondor
(U2013/6224) and (U2013/7743)
DEPUTY PRESIDENT BOOTH | SYDNEY, 30 APRIL 2013 |
s.394 Application - date of effect of dismissal - whether application made before time - extension of time.
[1] On 7 February 2012 Mr Ian Kerry Cameron (the applicant) lodged an application (the initial application) pursuant to s.394 of the Fair Work Act (the Act) for an unfair dismissal remedy in relation to the termination of his employment from Metecno Pty Ltd T/A Bondor (the respondent). This application is U2013/6224.
[2] The respondent contends that the applicant’s employment was terminated on 7 February and since the application was lodged on the same day, the application has not been lawfully made.
[3] The matter came before me in a directions hearing on 15 March 2013 and this contention was put but not argued fully. The applicant was represented by Mr Darrell Grey, solicitor and the respondent was represented by Mr David Miller, National Manager- Workplace Legal Services The Australian Industry Group (AiG).
[4] Mr Miller indicated that the respondent would not object to an extension of time if the applicant chose to lodge a new application and seek an extension of time pursuant to s.394(3) of the Act.
[5] I directed the parties to lodge submissions in relation to the initial application and advised the parties that I would make a decision on the papers as to whether the initial application had been made within the time limit set out in s.394((2) of the Act. I indicated that if the applicant chose to make a new application then the question of an extension of time could be considered if necessary, depending upon my decision in relation to the initial application.
[6] On 21 March the applicant lodged another application (the second application) pursuant to s.394 of the Act for an unfair dismissal remedy in relation to the termination of his employment from the respondent. This matter was assigned the number U2013/7743 and the file was provided to me in light of the relationship to the initial application and the decision being made about it.
[7] I received the respondent’s submission on 29 March and on 9 April the applicant advised that he was content to rely on the submissions made along with his second application.
[8] This decision is made following consideration of those materials.
Background
[9] The applicant was employed by the respondent as an operations manager in a construction related company in Launceston, Tasmania. The applicant was dismissed by the respondent on the grounds of serious misconduct following, inter alia, a workplace accident on 27 November 2012.
[10] The respondent wrote to the applicant on 29 January 2013 setting out the allegations against the applicant.
[11] The applicant wrote to the respondent on 29 January 2013 responding to each allegation.
[12] The respondent wrote to the applicant on 4 February 2013 replying to the applicant’s response to the allegations. In this correspondence the respondent said, inter alia:
“In those circumstances, and unless you have anything you wish to direct specifically to those points, we propose to terminate your employment with immediate effect. We are prepared to give you until close of business (Queensland time) tomorrow, Tuesday 5th February to provide us with a response.”
[13] The applicant’s solicitor wrote to the respondent on 5 February 2013 saying, inter alia:
“In the event that you proceed with your threat to dismiss him as of Tuesday 5 February 2013 (today), then I will refer the matter to Fair Work Australia (sic)”
[14] The respondent wrote to the applicant’s solicitor on 5 February 2013 indicating its intention to consult with its representative and advising a written response would be received by 4pm Brisbane time on Thursday 7 February 2013.
[15] The applicant’s solicitor posted the initial application to the Fair Work Commission (the Commission) on 6 February 2013.
[16] The respondent wrote to the applicant on 7 February 2013 referring to the exchange of correspondence and rejecting the applicant’s points in defence saying, inter alia:
“In those circumstances, we confirm that your employment is to be terminated with immediate effect”.
It is the submission of the respondent that the correspondence was delivered to the applicant in the late afternoon of that day.
[17] The Commission’s Tasmanian registry received the initial application on 7 February. My inquiries have revealed that the application was received in the morning post of 7 February and that the date stamp with a time arrow to 9pm was intended, by the routine of the registry, to be set at 9am.
Statutory framework
[18] The relevant provisions of the Act are as follows:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(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).”
To be eligible to make an application to the Commission pursuant to s.394 of the Act a person must be a person who has been dismissed.
[19] Section 386 sets out the meaning of dismissed as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
(iii) and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
[20] The word dismissed is in the past tense. It follows that to make a valid application the dismissal must have already occurred.
[21] The application must be made within 14 days after the dismissal took effect.
[22] The meaning of the words ‘the dismissal took effect’ has been considered by the Australian Industrial Relations Commission, as it then was, in 2007 in a decision of SDP O’Callaghan in Bosch v Advertiser Newspapers Pty Ltd 1 (Bosch decision) where he said in paragraphs 9 - 11:
“[9] The affidavit of Ms Handley asserts that Mr Bosch's employment was terminated by the letter dated 24 May 2007, sent by registered post and that the termination of employment took effect on that date such that Mr Bosch's application is 11 days out of time.
[10]In Makerja v Baptist Community Services [1] a Full Bench of the Commission stated:
“[18]There is an additional matter which was not raised in argument. Section 643(14) requires an application to be lodged within 21 days of “the day on which the termination took effect.” Normally a termination of employment would not “take effect” before it was communicated to the employee concerned, although that may not always be the case. In this case it does not seem to be in contest that the appellant was not aware of the letter of termination until 22 August 2006. The application for relief was filed within 21 days of that date. In cases in which abandonment of employment is alleged the time at which the termination took effect may only be ascertainable after resolving factual and legal issues. It will be rare for such issues to be resolved fairly without a hearing. But if on one view of the material before the Commission the application was within time, there is a strong case for allowing the application under s.643(14).”
[11]I have applied this approach. I consider that the effective date of termination of Mr Bosch's employment must be the date upon which he was made aware of this termination. I have inferred from Mr Bosch's assertion in his application that the termination of his employment occurred on 2 June 2007 that he asserts that he received the 24 May 2007 termination of employment letter on 2 June 2007. I consider that it is most likely that the termination of employment took effect sometime on, or shortly after 28 May 2007 when the registered letter would have been delivered to Mr Bosch’s home address. However, in the absence of any more definite information I have taken it that Mr Bosch concedes that he was aware of the termination of his employment on 2 June 2007 and that this date represents the date the termination of employment took effect. Consequently Mr Bosch’s application was filed two days outside of the 21 day time limit specified in section 643 of the Act.”
[23] The meaning of the words ‘14 days after’ has been considered by the Commission recently in a decision of DP Smith in Mr William Truong v GM Holden Limited 2 (Truong) where he said at paragraphs 4 - 6:
“[4] I find that the employment of Mr Truong was terminated on 23 December 2011.
[5] The next matter to be determined, is whether or not the application was made in accordance with s.394(2), namely that the application must be made within 14 days after the dismissal took effect.
[6] It is clear that the statute has to be read in a way that is consistent with the Acts Interpretation Act, particularly s.36(1) and that the lodgement date should have been the following day. Accordingly this application is dismissed for want of jurisdiction as it was lodged on the day in which Mr Truong remained employed.”
[24] Section 36 (1) of the Acts Interpretation Act reads as follows:
“Calculating time
(1) A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:
Calculating periods of time | ||
| Column 1 | Column 2 |
1 | is expressed to occur between 2 days | includes both days. |
2 | is expressed to begin at, on or with a specified day | includes that day. |
3 | is expressed to continue until a specified day | includes that day. |
4 | is expressed to end at, on or with a specified day | includes that day. |
5 | is expressed to begin from a specified day | does not include that day. |
6 | is expressed to begin after a specified day | does not include that day. |
7 | is expressed to end before a specified day | does not include that day. |
Example 1: If a claim may be made between 1 September and 30 November, a claim may be made on both 1 September and 30 November.
Example 2: If a permission begins on the first day of a financial year, the permission is in force on that day.
Example 3: If a licence continues until 31 March, the licence is valid up to and including 31 March.
Example 4: If a person's right to make submissions ends on the last day of a financial year, the person may make submissions on that day.
Example 5: If a variation of an agreement is expressed to operate from 30 June, the variation starts to operate on 1 July.
Example 6: If a decision is made on 2 August and a person has 28 days after the day the decision is made to seek a review of the decision, the 28-day period begins on 3 August.
Example 7: If a person must give a notice to another person at any time during the period of 7 days before the day a proceeding starts and the proceeding starts on 8 May, the notice may be given at any time during the 7-day period starting on 1 May and ending on 7 May.”
Parties’ submissions
[25] The respondent contends that the applicant’s initial application was premature, being made on the day of the dismissal. In particular the respondent says:
“Section 394(2) requires an Application to be made “within fourteen days after the dismissal took effect”. If, as the Respondent contends, the dismissal took place on 7 February, then s.36 Acts Interpretation Act can be interpreted only to allow an Application to be made no sooner than Wednesday 8 February and within fourteen days thereafter (respondent’s emphasis). In those circumstances, the respondent respectfully submits that the Application filed on 7 February has not been lawfully made.”
[26] The applicant contends that he was dismissed on 4 or at the latest 5 February 2013 when he received the letter of 4 February. The applicant says:
“The letter of 4 February makes it clear that the Respondent does not consider that the Applicant has any defence....It is submitted on behalf of the Applicant that that letter is an unequivocal dismissal. The term “with immediate effect” means just that, that upon notification, the Applicant’s employment is over....The Respondent’s letter of 7 February (asserted by the Respondent as the date of termination) is equivocal. “In these circumstances, we confirm (emphasis retained) that your employment is terminated with immediate effect.”...The use of the term confirm refers to the previously made decision that the employment was (I submit), terminated on 4 February 2013.”
[27] The applicant does not address the question of whether, if the date the dismissal took effect was 7 February 2013, the application was lawfully made being lodged on 7 February.
Consideration
[28] It is clear from s.394(1) of the Act that to be eligible to make an application to the Commission pursuant to s.394 of the Act a person must be a person who has been dismissed. Consistent with the Bosch decision I regard the date the dismissal took effect to be the date upon which the person who was dismissed became aware of the dismissal. Dismissal, in accordance with the definition in s.386, is where the person’s employment with his or her employer has been terminated on the employer’s initiative.
[29] An employee may become aware that the employer is considering the employee’s dismissal, or the employer may put the employee on notice that unless the employee can persuade the employer that they should not do so, the employer intends to dismiss the employee. In such circumstances it could not be said that that the employee had become aware of the dismissal because there has not been one.
[30] I consider the correspondence from the respondent to the applicant of 4 February to be of this character. The words used by the respondent are consistent with an employer being part way through a process.
“In those circumstances, and unless you have anything you wish to direct specifically to those points, we propose to terminate your employment with immediate effect. We are prepared to give you until close of business (Queensland time) tomorrow, Tuesday 5th February to provide us with a response”
The applicant’s solicitor wrote to the respondent on 5 February saying, inter alia:
“In the event that you proceed with your threat to dismiss him as of Tuesday 5 February 2013 (today), then I will refer the matter to Fair Work Australia (sic).”
The respondent sought to ‘buy some time’ when they replied on the same day indicating that they would respond by 4pm on 7 February after consulting with their representative. They did so and their response was the letter dismissing the applicant.
[31] I find that the date the dismissal took effect was 7 February 2013. He was dismissed in the afternoon. He made his application on the morning of 7 February.
[32] The applicant, as in Truong, could not make an application while he was still employed and the application is therefore unable to proceed.
[33] In passing I note that I am not convinced that the Acts Interpretation Act operates to the effect contended by the respondent. I think that s.394(2)(a) of the Act is intended to provide a limitation on the making of applications beyond a certain date (21 days after the date of effect of the dismissal). I don’t think that it is for the purpose of imposing an arbitrary constraint on the ability of an applicant to lodge at any time after the dismissal, so long as the outer limit is met. I accept that the time period for the purpose of determining whether the outer limit is met is calculated on the basis that day one of the period is the day after the event. 3 However, if an applicant was dismissed at 9am on a day and made an application pursuant to s.394 of the Act at 12 noon on the same day I am not convinced that it would be unlawful. Since the applicant in this case received notification of his dismissal late on 7 February and his application was received by the Commission registry in Hobart in the morning mail on 7 February the principle followed by DP Smith in Truong is apposite – the applicant was still employed when he made his application and thus his application was not in accordance with the Act. This is the basis upon which I have decided it was premature.
Second application and extension of time
[34] In anticipation of the possibility of such a finding the applicant made the second application. When it was lodged on 21 March 2013 it was 20 days over the time limit set in s.394(2)(a) of the Act.
[35] This application was accompanied by submissions on behalf of the applicant in support of the exercise of the Commission’s discretion to extend the time for the application to be made in accordance with s.394(2)(b) and (3) of the Act.
[36] The respondent does not object to an extension of time being granted. The respondent says at paragraphs 20 – 22 of its submission:
“[20] However, and having regard to s.394(3) and the principles enunciated by Marshall J in the Brodie-Hanns case, the respondent does not press upon the Commission any basis as to why an extension of time should not be granted.
[21] It is clear upon the face of the material as to why there was a delay in the filing of the second Application and it cannot fairly be submitted by the Respondent that it was ever under any impression other than the Applicant wished to contest the dismissal. The Respondent has not suffered any prejudice as a result of this “delay”.
[22] Whether or not time is to be extended is ultimately a matter for the discretion of the Commission. In the circumstances, the Respondent does not oppose the exercise of that discretion and will abide the order of the Commission in that regard.”
[37] Nevertheless it is the Commission’s discretion and I must consider the merit of the application in accordance with the Act. Section 394 (2) and (3) are the relevant sections and they read as follows:
“(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).
(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 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.”
[38] I must consider whether to exercise my discretion to allow an extension of time and in doing so consider whether there are exceptional circumstances taking into account the matters contained in s394(3).
[39] A number of decisions of the Commission have considered the words exceptional circumstances and the principle could be summarised as being that circumstances that are exceptional need not be unique or unprecedented but they could not be usual or routinely encountered. 4
[40] I will consider each of the matters contained in s.394(3) in turn.
The reason for the delay
[41] The reason that the second application was made was because of the doubt cast on the competency of the initial application. The applicant contends that the initial application was lawful but recognised the possibility of a finding to the contrary so made the second application. The second application was made in a timely manner considering the directions hearing of 15 March and the submissions timetable set. It could not be said that the applicant’s conclusion that he had been dismissed by correspondence dated 4 February and received on 5 February was unreasonable. The matter was definitely arguable.
[42] This is without doubt an unusual situation, infrequently encountered by the Commission. This weighs strongly in favour of the exercise of my discretion to extend time.
Whether the person first became aware of the dismissal after it had taken effect
[43] The heart of the matter in contention is when the applicant became aware of the dismissal. The applicant contends that it was 5 February 2013 but I have found it was 7 February. The contested dates do not bear on the merit of the extension of time application and I regard this matter as neutral in my consideration of whether to exercise discretion to extend time.
Any action taken by the person to dispute the dismissal
[44] The applicant clearly disputed his dismissal as early as 29 January and the respondent was on notice from at least 7 February that the dismissal was disputed. I regard this matter as neutral in my consideration of whether to exercise discretion to extend time.
Prejudice to the employer (including prejudice caused by the delay)
[45] The respondent does not object to the extension of time and submits that there is no prejudice as a result of the delay in progressing the matter. This weighs in favour of the exercise of my discretion to extend time.
The merits of the application
[46] I have not received a submission on the merits save for the content of the Form F2 and Form F3 and the correspondence that has passed between the parties. I am unable to form a view on the merits except to say that the application reveals there to be an arguable case. I regard this matter as neutral in my consideration of whether to exercise discretion to extend time
Fairness as between the person and other persons in a similar position
[47] This matter does not arise and is not relevant to the exercise of discretion to extend time.
Conclusion
[48] On balance I consider that the circumstances of this matter are exceptional and it would be fair and equitable to extend the time for the second application. The application may proceed to the next stage.
DEPUTY PRESIDENT
Appearances:
D Grey, solicitor with I K Cameron, the Applicant
D Miller, The Australian Industry Group for Metecno Pty Ltd
Hearing details:
2013.
Telephone Hearing:
15 March.
Final written submissions:
9 April 2013.
1 [2007] AIRC 647
2 [2012] FWA 4529
3 Moon v JLG Industries (Australia) [2011] FMCA 343.
4 Nulty v Blue Star [2011] FWAFB 975 at [13].
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