Kelvin O'Halloran v Queensland Bulk Water Authority T/A SEQWater

[2021] FWC 22

[2021] FWC 22

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kelvin O’Halloran
v
Queensland Bulk Water Authority T/A SEQWater
(U2020/12594)

DEPUTY PRESIDENT ASBURY BRISBANE, 4 JANUARY 2021

Application for an unfair dismissal remedy - Unfair dismissal application filed out of time – Application filed in wrong jurisdiction – Incorrect advice provided to Applicant – Circumstances found to be exceptional – Further period in which to make application granted

Introduction

[1] This Decision concerns an application by Mr Kevin O’Halloran (the Applicant) under s. 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in respect of his dismissal by Queensland Bulk Water Supply Authority t/a Seqwater (the Respondent). Section 394(2) of the Act requires that such an application is made within 21 days of a dismissal taking effect, or such further period as the Fair Work Commission (Commission) may allow under s. 394(3). The application was filed on 18 September 2020.

[2] In his Form F2 Application for an unfair dismissal remedy, the Applicant stated that he was notified of his dismissal on 6 August 2020 and that the dismissal took effect that day, and provided reasons as to why the application had not been made within 21 days of that date and matters the Commission should take into account in considering whether a further period in which to make the application should be granted. On the basis of the information provided by the Applicant in the Form F2 Application, the application was required to be made by midnight on 27 August 2020 and was lodged 22 days outside the required time

[3] On 27 October 2020, I conducted a hearing, by telephone, in relation to whether a further period should be granted to the Applicant to lodge his unfair dismissal application. During the course of that hearing it became clear that the Applicant had not filed full particulars of all the evidence he relied upon in support of the grant of a further period in which to make his application. I decided to give the Applicant a further opportunity to provide evidence, and a hearing was listed on 11 November 2020.

[4] At the hearing on 11 November 2020, the Applicant and his wife, Mrs Andrea O’Halloran gave evidence. The Respondent called evidence from Mr Benjamin Day, Senior Business Partner HR & IR and Ms Melissa Williams, General Manager People, Culture and Safety.

Extension of time application

[5] The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may include a single exceptional factor, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.2

[6] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.

[7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

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

(c) any action taken by the person to dispute the dismissal;

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

(e) the merits of the application; and

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

[8] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

Consideration

Reason for the delay

[9] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4

[10] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 5

[11] The reason for the Applicant’s delay in lodging his application with the Commission is that he incorrectly lodged an unfair dismissal application with the Queensland Industrial Relations Commission (QIRC) on 27 August 2020, within the 21 day period from the date his dismissal took effect. The Applicant gave evidence that he sought assistance from a law firm, Job Watch, the Office of the Fair Work Ombudsman and the QIRC before lodging his application in that jurisdiction, and was told by all of those organisations that the QIRC was the correct jurisdiction.

[12] The Applicant said that this was consistent with his understanding that the QIRC deals with dismissed Queensland state employees and that the Queensland Bulk Water Authority, trading as Seqwater is a Queensland Statutory Authority. The Applicant also said that water is the responsibility of a number of Queensland Government agencies including the Department of Natural Resources, Mines and Energy (DNRME), the Department of Environment and Science, the Department of Agriculture and Fisheries, Queensland Health and the Department of Local Government, Racing and Multicultural Affairs. Further, the Applicant said that his belief that the QIRC was the appropriate jurisdiction in which to lodge his application, was consistent with his understanding that water entities in Queensland, which are overseen by DNRME include government-owned corporations, water authorities and statutory authorities. The Minister responsible for the Queensland Bulk Water Authority is a Queensland State Minister, whom the Applicant met on a number of occasions and when preparing budgets whilst working at Seqwater. Those budgets were submitted and approved by the Queensland Treasury Department. The Applicant also stated that he was employed on a common law contract that stated that it was governed by the law of the State of Queensland. The Applicant maintained that these factors led him to believe that the QIRC was the appropriate jurisdiction in which to lodge his unfair dismissal application.

[13] Mrs O’Halloran also gave evidence of her attempts to assist the Applicant to lodge his unfair dismissal application in the correct jurisdiction. Those attempts commenced prior to the dismissal and while the Applicant was subject to a “show cause” process. Mrs O’Halloran’s evidence was that assistance was sought on behalf of the Applicant from a lawyer and the Australian Services Union which the Applicant joined prior to his dismissal.

[14] Mrs O’Halloran states that on 31 July 2020 (prior to the Applicant’s dismissal) she had a discussion with an official of the ASU upon receipt of the show cause letter. Mrs O’Halloran’s evidence of the conversation included that she was informed by the official that the Respondent would be intent on terminating the Applicant’s employment regardless of his response; and that due to the timing of the Applicant joining the Union, the Union would be unable to provide any further advice. Mrs O’Halloran states the official concluded the call by advising her that she should focus her efforts on an unfair dismissal claim. It is not asserted that the ASU official provided advice about the appropriate jurisdiction for making an unfair dismissal application.

[15] Mrs O’Halloran stated that she also contacted Jobwatch on 31 July 2020. Mrs O’Halloran repeated the advice she had received from the ASU official to the representative from JobWatch. Mrs O’Halloran states that the representative from JobWatch provided her with advice to the effect of:

•  it was critical she determine the correct jurisdiction for an unfair dismissal claim;

•  the Respondent was a state-owned corporation and the Applicant’s employment fell within the jurisdiction of the QIRC; and

•  the Applicant would need to access a Form 12 application for reinstatement if he wanted to pursue an unfair dismissal.

[16] Mrs O’Halloran states that the Advisor from JobWatch also sent her a number of Infosheets, and told her that although the sheets had been written for usage within the Fair Work Commission, the basic principles applied to the QIRC and reiterated that Mrs O’Halloran would need to file an application in the QIRC.

[17] On the 6 August 2020 (the day the Applicant was dismissed) Mrs O’Halloran again made contact with the lawyer she had previously consulted. Ms O’Halloran’s evidence is that she told the lawyer that they had been receiving advice from JobWatch and planned on filing an unfair dismissal claim in the QIRC, and that the lawyer confirmed that this was appropriate. On 7 August 2020 Mrs O’Halloran contacted JobWatch again and requested to speak with the same representative she had spoken to on 31 July, as she was starting to prepare an unfair dismissal application and wanted confirmation that this needed to be filed in the QIRC. Mrs O’Halloran states that she was told the representative was unavailable but that a file note of the conversation on 31 July 2020 stated that the advisor “has noted the QIRC as the correct jurisdiction.”

[18] On 13 August 2020 Mrs O’Halloran contacted the QIRC by telephone and spoke to a staff member who asked her who the Applicant’s employer was. In response, Mrs O’Halloran stated that the employer was “Seqwater, a Queensland State-Owned Corporation.” Mrs O’Halloran’s evidence is that the staff member confirmed that the QIRC was the correct jurisdiction for lodgement and that her diary notes confirmed this was what she was told. Mrs O’Halloran said she ended this conversation by stating that this was great because it was in keeping with the advice she had received from JobWatch.

[19] On 17 August 2020 Mrs O’Halloran contacted JobWatch again, and had a conversation with a representative relating to what the Applicant asserted were unpaid entitlements and that JobWatch had advised that Mrs O’Halloran could write to the Respondent raising this and that this could also form part of discussions during the conciliation process. Mrs O’Halloran made another telephone call to JobWatch on 21 August 2020, and her evidence of this conversation was that it related to advice about the content of the Applicant’s unfair dismissal application.

[20] On 24 August 2020 Mrs O’Halloran called the QIRC again seeking assistance with witnessing a statutory declaration and expressing concerns over not having a legal representative. Mrs O’Halloran was told that the system was designed for persons to represent themselves and was referred to fact sheets for self-represented litigants.

[21] Mrs O’Halloran also stated that she contacted what she had believed was the Fair Work Commission helpline on 24 August 2020. Following a review of her telephone records, Mrs O’Halloran stated that she had inadvertently placed this call with the Fair Work Ombudsmen, not the Fair Work Commission. Mrs O’Halloran said she spoke to a male operator and that the purpose of the call was as a final check to confirm the correct jurisdiction prior to lodging an application in the QIRC.

[22] Mrs O’Halloran said she gave the operator the Respondent’s ABN, and that the operator told her words to the effect of “I cannot find Queensland Bulk Water Authority trading as Seqwater in the database so it must fall within the QIRC.” Mrs O’Halloran stated that this confirmed advice she had received previously.

[23] On 24 August 2020, Mrs O’Halloran attempted to contact the lawyer she had previously consulted. After an exchange of text messages, the lawyer requested that Mrs O’Halloran send a copy of an affidavit to be filed with the application. Mrs O’Halloran sent the affidavit as requested, but when she did not hear from the lawyer by 27 August, decided to file the application with the QIRC on that date, being the last day of the 21 day period from when the dismissal took effect. Mrs O’Halloran stated that at this point, she was not confused about whether the QIRC was the correct jurisdiction to file in as she had received repeated advice confirming that the QIRC was the correct jurisdiction for the Applicant to lodge his unfair dismissal. Further, Mrs O’Halloran said she was not confused about the 21 day timeframe.

[24] Mr Moy sent a letter to the QIRC registry on behalf of the Respondent on 7 September 2020 raising a jurisdictional objection to the QIRC application and explaining that:

•  Seqwater is a national system employer;

•  While employed with Seqwater the Applicant was a national system employee; and

•  Accordingly, the QIRC had no jurisdiction in relation to the QIRC application or in relation to Seqwater more generally.

[25] The QIRC requires that employer responses to applications are provided within seven days of the application being filed. The response of Seqwater raising the jurisdictional objection was filed 11 days after the Applicant’s unfair dismissal application was made. The letter requested the QIRC application be dismissed and was copied to Mrs O’Halloran as the Applicant’s nominated representative. The QIRC issued an urgent notice on 9 September 2020, listing the matter for Mention before Commission Hartigan of the QIRC on 10 September 2020. The Mention was rescheduled to 11 September 2020 due to Mr Moy’s unavailability. Mr Moy sought a further adjournment of the Mention on 11 September due to being in another proceeding, and the matter was relisted again before Commissioner Hartigan on 14 September 2020.

[26] The Parties attended the Mention before Commissioner Hartigan of the QIRC on 14 September 2020. Mrs O’Halloran stated that she could not follow the details pertaining to the Respondent’s jurisdictional objection including the case law that Mr Moy was quoting. Following the Mention, the Respondent was requested to file a written summary of why it believed that the QIRC did not have jurisdiction to deal with the QIRC’s application, which it provided on 15 September to the QIRC and to Mrs O’Halloran. Mrs O’Halloran was given until close of business on 16 September 2020 to respond.

[27] Mrs O’Halloran states that she sought legal advice on 16 September 2020 from Australian Workplace Lawyers, and that following this advice, sent an email to the registry of the QIRC at 4.40pm advising that she wished to discontinue the application and file an unfair dismissal application in the Fair Work Commission. The Respondent tendered a copy of this email which is in the following terms:

“Based on advice provided by Mr Michael Moy that the jurisdiction for an unfair dismissal claim for my husband Kelvin O’Halloran would be the Fair Work Commission, I wish to discontinue this application and plan to commence on in the Fair Work Commission.

[28] On 17 September 2020 Mrs O’Halloran filed a formal discontinuance of the Applicant’s QIRC application in response to a request for from Commissioner Hartigan. The application was then filed in the Fair Work Commission on 18 September 2020.

[29] Other reasons relied upon as reasons for the delay are:

•  The death of one of the Applicant’s closest friends on 7 August 2020 in which the Applicant played a central role in organising a COVID safe funeral and delivery of a eulogy;

•  The Applicant had to assist in relocating his 90 year old Mother who has dementia from her home of 50 years; and

•  Mrs O’Halloran’s family emergency on 4 August 2020.

[30] It is also apparent from the material filed by the Applicant and his wife that the Applicant has been treated for mental health issues.

[31] I consider that the Applicant has provided a reasonable explanation for the delay in filing his application. It is reasonable that the Applicant did not understand the fact that his employer is a national system employer. The Applicant went to great lengths to clarify this matter and took such steps in a timely manner and within the 21 day period for making his application. Regrettably, the advice he received was incorrect.

[32] While the Applicant’s lack of understanding in relation to this matter was reasonable, it should have been obvious to the various organisations that the Applicant contacted that the Respondent is a national system employer and that the application should have been lodged with the Fair Work Commission and not the QIRC. As the Respondent points out, in its submissions, the Award mentioned in the Applicant’s contract of employment is an award of the FW Commission and a search of the FW Commission’s enterprise agreement data base brings up a number of results pertaining to enterprise agreements made in the federal system.

[33] It is therefore surprising that three organisations operating in the sphere of providing industrial relations advice, would fail to advise the Applicant that the Fair Work Commission was the appropriate jurisdiction in which to file his unfair dismissal application. The circumstances that three such organisations – JobWatch, the Fair Work Ombudsman and the QIRC – would provide incorrect advice are in my view, exceptional. I make no finding that the ASU provided incorrect advice as the Applicant’s evidence does not establish that the ASU official he consulted was asked about the appropriate jurisdiction in which to lodge the application. I also make no finding in relation to the legal representative given the Applicant’s evidence that assistance was being provided on a basis that was essentially pro bono.

[34] When the timeline of events is considered, the Applicant filed an application within time, in the wrong jurisdiction. The Applicant did this in circumstances where he followed incorrect advice from three organisation. The Applicant had no reason to believe that the application had not been filed in the correct jurisdiction, until 7 September 2020 (11 days after lodgement of the application) when he received the Respondent’s jurisdictional objection. The matter was then listed for an urgent mention in the QIRC on 9 September 2020. In my view it was reasonable for the Applicant to await consideration by the QIRC before taking any further action in relation to his unfair dismissal application, given the fact that three sources had assured him that the QIRC was the correct jurisdiction.

[35] Through no fault of the Applicant, the mention did not proceed until 14 September 2020. At that mention, the QIRC Member who dealt with the application directed the Respondent to provide a brief outline of its jurisdictional objection to the Applicant. In those circumstances, it was reasonable for the Applicant to wait to receive that outline and to consider it, before taking any further action in relation to his unfair dismissal application. Upon receipt of the outline, the Applicant promptly withdrew his application in the QIRC and lodged an application in the FW Commission.

[36] For these reasons I consider that the Applicant had a reasonable explanation for the entire period of the delay and there were exceptional circumstances associated with the reasons. This weighs in favour of a further period in which to make the application being granted.

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

[37] The Applicant says he was notified of his dismissal on 6 August 2020 and that it took effect on that date.

[38] The Applicant had the full period of 21 days from 6 August 2020 to lodge his unfair dismissal application. In all the circumstances, I consider this to be a neutral consideration.

Action taken to dispute the dismissal

[39] The Applicant took action to dispute his dismissal, both prior to it being effected and within 21 days of the dismissal taking effect. While the application was initially filed in the wrong jurisdiction, this is not a case where no action was taken to dispute the dismissal other than the Applicant emerging from left-field by filing an application after the 21 day period expired. This circumstance weighs in favour of a further period in which to make the application being granted.

Prejudice to the employer

[40] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[41] In the matter of Kornicki v Telstra-Network Technology Group⁶ the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”7

[42] After considering the material filed by the parties, it is clear that there are factual disputes between the parties which can only be resolved at a hearing. I do not consider that the application is totally without merit, although it is not possible to say that it has strong prospects of success. In particular, it appears that the Respondent followed a detailed and apparently comprehensive “show cause” process before dismissing the Applicant.

[43] Accordingly, I am of the view that the merits are a neutral consideration.

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

[44] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[45] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am satisfied that there are exceptional circumstances and that I should exercise the discretion in s. 394(3) to grant a further period for the application to be made. Accordingly, I extend the time for making the application in U2020/12594 until 18 September 2020. An Order to that effect will issue with this decision. The matter will now be listed for Mention and Directions for hearing will be issued.

DEPUTY PRESIDENT

Appearances:

Mrs A O’Halloran on behalf of the Applicant.

Mr M Moy of McCullough Robertson on behalf of the Respondent.

Hearing details:

2020.
By telephone.
27 October & 11 November.

Printed by authority of the Commonwealth Government Printer

<PR725962>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]

 2   Ibid

 3   Long v Keolis Downer[2018] FWCFB 4109 at [40]

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

6 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

7 Ibid.