Ken Sheldon v UAM Pty Ltd T/A UAM
[2016] FWC 1470
•7 MARCH 2016
| [2016] FWC 1470 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Ken Sheldon
v
UAM Pty Ltd T/A UAM
(C2015/3474)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 7 MARCH 2016 |
Application to deal with contraventions involving dismissal – extension of time – exceptional circumstances warranting allowing a further period for the making of an application – period for making the application extended to 31 July 2015.
[1] Mr Ken Sheldon (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 31 July 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by UAM Pty Ltd T/A UAM (UAM – the Respondent) on 9 July 2015 in contravention of the general protections provisions in the Act.
[2] As the application had been lodged one day outside the statutory timeframe for lodgement, the Commission issued Directions on 19 August 2015, and again on 7 September 2015, requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.
[3] The extension of time issue was the subject of a telephone hearing on 1 October 2015. At the telephone hearing, Mr Eddy Gisonda of Counsel appeared with permission for the Applicant, while Mr James Kerr, the Applicant’s solicitor, gave evidence for the Applicant. Mr John Douglas appeared for UAM.
[4] For the reasons set out below I have concluded that there were exceptional circumstances warranting an extension of time and extend the timeframe for lodging the application to 31 July 2015.
Background
[5] UAM is one of Australia’s leading providers of diversified services to utility and energy organisations, government departments, councils and major blue chip companies. UAM was acquired by Spotless in July 2015 1.
[6] Mr Sheldon commenced employment with UAM on 2 January 2008 and was dismissed on 9 July 2015. Mr Sheldon contended that he was dismissed because he inquired or complained on several occasions during June 2015 about the payment of a bonus. Mr Sheldon believed that he was entitled to a bonus of $300,000. UAM contends that Mr Sheldon was dismissed because his position was redundant following the acquisition of UAM by Spotless.
[7] On 16 July 2015, Mr Kerr wrote to UAM on Mr Sheldon’s behalf disputing the dismissal, with Mr Douglas responding on 21 July 2015.
[8] In subsequent developments, Mr Sheldon’s general protections application was received by the Commission on 31 July 2015, one day outside the 21-day statutory timeframe for lodgement specified in s.366(1)(a) of the Act. In his application, Mr Sheldon alleges that he was dismissed in contravention of s.340 of the Act which deals with protection concerning the exercise or non-exercise of a workplace right.
The Relevant Legislation
[9] Section 366 of the Act provides:
“366 Time for application
366(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).
366(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.”
Whether to allow a further period for the application to be made
[10] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.
(a) The reason for the delay
[11] Mr Sheldon submitted that the reason for the delay was an administrative error on the part of his solicitor, Mr Kerr, who incorrectly calculated when the 21 day period expired. In his witness statement 2, Mr Kerr deposed that he took instructions from Mr Sheldon on 14 July 2015 and that he incorrectly calculated the 21 day period on that day. Mr Kerr also gave oral evidence at the telephone hearing of 1 October 2015. In his oral evidence Mr Kerr was asked several times on which date he had been instructed by Mr Sheldon to lodge a general protections application, with Mr Kerr giving several different answers. Specifically, Mr Kerr:
- initially attested that had been instructed by Mr Sheldon on 14 July 2015 to write to UAM and in the absence of a positive response to lodge an application;
- he then attested that he was instructed to lodge an application on 21 July 2015 following receipt of Mr Douglas’ response; and
- later attested that he been instructed by Mr Sheldon on 31 July 2015 to lodge his general protections application.
[12] In view of these differing responses, the Commission asked Mr Kerr on which of the three dates he was instructed by Mr Sheldon to lodge an application to which Mr Kerr replied 21 July 2015.
[13] Under cross-examination, Mr Kerr attested that he miscalculated the 21 day period on 14 July 2015 as a result of counting 10 and 11 July 2015 as one day and that he advised Mr Sheldon on that day that his application was to be lodged by 31 July 2015. Mr Kerr also stated that there had been discussions between himself and Mr Sheldon over the period 21 to 31 July 2015 regarding the substance of Mr Sheldon’s general protections and that after 21 July 2015 Mr Sheldon enquired about the progress of his application on one occasion, 31 July 2015. Mr Kerr further attested that there was no reason why a draft application was not provided to Mr Sheldon prior to 31 July 2015.
[14] UAM submitted that in circumstances where representative error was relied upon as the reason for the delay that it was the actions of the employee that are the central consideration in deciding whether or not that reason was acceptable. UAM further submitted that in this case Mr Sheldon asserted that he had given instructions to his solicitor to file his general protections application but provided no indication as to whether he followed up on that instruction, noting that where an application is delayed because the employee has left the matter in the hands of their representative and has not followed up the claim, the extension may be refused.
[15] As noted by a Full Bench in Robinson v Interstate Transport Pty Ltd (Robinson’s Case 3the approach to representative error as an explanation for late lodgement was first set out in Clark v Ringwood Private Hospital (Clark)4in the context of a discretion to extend under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act) followed by a Full Bench decision in Davidson v Aboriginal & Islander Child Care Agency (Davidson)5.
[16] The approach in Clark’s Case was summarised in Davidson as follows:
“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i) 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.
(ii) 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.
(iii) 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.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.” 6 (Underlining added)
[17] An analysis of the material before the Commission indicates that:
- Mr Kerr miscalculated when the 21 day period expired on 14 July 2015;
- Mr Kerr advised Mr Sheldon on 14 July 2015 that his application would need to be lodged by 31 July 2015;
- Mr Sheldon instructed Mr Kerr to lodge an application on either 21 or 31 July 2015, with 21 July 2015 more likely given that Mr Kerr’s evidence that he subsequently had a number of conversations with Mr Sheldon while preparing his application; and
- Mr Sheldon contacted Mr Kerr on 31 July 2015 to enquire about his application.
[18] In circumstances where Mr Sheldon was advised by Mr Kerr on 14 July 2015 that any application would need to be lodged by 31 July 2015 and given the discussions between the pair over the period 21 to 31 July 2015, it is not surprising that Mr Sheldon did not follow-up with Mr Kerr regarding his application until 31 July 2015. As implausible as Mr Kerr’s reason for miscalculating when the 21 day period concluded is, on balance, I am inclined to the view that Mr Sheldon relied upon Mr Kerr’s erroneous advice as to when his application was due to be lodged. This supports a finding that representative error was the reason for the delay, which in turn points to the existence of exceptional circumstances.
(b) Any action taken by the person to dispute the dismissal
[19] It was not disputed that Mr Sheldon took action to dispute his dismissal. I therefore consider this factor to be a neutral consideration.
(c) Prejudice to the employer (including prejudice caused by the delay)
[20] It was not disputed that UAM would not be prejudiced were an extension of time granted. I therefore also consider this factor to be a neutral consideration.
(d) The merits of the application
[21] Mr Sheldon submitted that by reason of the temporal proximity between his complaint and his dismissal and the lack of any warning or explanation regarding his dismissal that he presumed that he had been dismissed because he exercised a workplace right.
[22] While UAM did not deny that it had taken adverse action against Mr Sheldon by dismissing him, relying on the decision in Harrison v In Control Pty Ltd 7 (Harrison), it submitted that Mr Sheldon’s claim for payment of the bonus did not constitute a workplace right. More specifically, UAM stated in its Form F8A – Response to General Protections Application that there was no agreement, verbal or written, to pay Mr Sheldon any bonus arising from contract extensions and that there was no agreement regarding the bonus payment other than that contained in Mr Sheldon’s contract of employment. UAM further stated that Mr Sheldon had been advised at a meeting on 9 July 2015 that he was to be made redundant as his functions could be absorbed into Spotless’ operations, adding that that conclusion had been reached following a review of corporate/office support functions within all functions of the Respondent following its acquisition by Spotless.
[23] At the telephone hearing, UAM submitted that the key to this case was the issue of the merits of the application, with the question in that regard being as to whether a contractual right equates to a workplace right. UAM further submitted that in its view Mr Sheldon’s application had no prospect of success.
[24] By way of background, in Harrison Federal Magistrate Burnett when considering the construction of s.341(1)(c) of the Act observed that “… it seems patent that if complaints and/or enquiries are to enliven rights they must be of the kind that would invite the intervention of bodies having the capacity to enforce compliance. Implicit in that, is not only the question of jurisdiction but also the substance of the subject matter of complaint.” 8 While bonus payments are commonly discretionary payments, in the absence of viewing Mr Sheldon’s contract of employment I am unable to form a view as to whether or not that is the case in this instance.
[25] I note also that Mr Sheldon in his submissions points to the “temporal proximity” between his complaint and his dismissal but provided no material going to whether or not he would be able to initiate action to secure payment of the bonus he considered he was entitled to.
[26] In summary, there was little material before the Commission to substantiate the parties’ respective submissions regarding this factor. As such, I am unable to form a considered view as to the merits of the application. I therefore consider this factor to be a neutral consideration. However, I would observe that were UAM able to substantiate its submissions, the merits of Mr Sheldon’s application are unlikely to be particularly strong.
(e) Fairness as between the person and other persons in a like position
[27] Mr Sheldon submitted that he would be prejudiced were an extension of time not granted.
[28] UAM submitted that were the Commission satisfied that Mr Sheldon gave instructions for the filing in his application and that he followed up on those instructions to ensure that they had been followed that this may go to the grant of an extension of time.
[29] As neither party directly addressed this factor in their submissions, I consider it to be a neutral consideration.
Conclusion
[30] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 9(Nulty) in the following way:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
[31] Having considered all of the factors set out in s.366(2) and drawing on Nulty, I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).
[32] The timeframe for lodging the application is extended to 31 July 2015. An order to that effect will be issued with this decision. The application will now be listed for a conference aimed at resolving the dispute.
Appearances:
E. Gisonda of Counsel for the Applicant.
J. Douglas for the Respondent.
Hearing details:
2015.
Melbourne (telephone hearing):
October 1.
1 Exhibit G1
3 (2011) 211 IR 347
4 (1997) 74 IR 413
5 (1998) 105 IR 1
6 Ibid
7 (2013) 230 IR 452
8 Ibid at paragraph 72
9 [2011] FWAFB 975
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