Ken Van Langeraad v D & D Traffic Management Pty Limited
[2011] FWA 7720
•11 NOVEMBER 2011
[2011] FWA 7720 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ken Van Langeraad
v
D & D Traffic Management Pty Limited
(U2011/10381)
COMMISSIONER CAMBRIDGE | SYDNEY, 11 NOVEMBER 2011 |
Unfair dismissal – request for FWA to allow extension of time for lodgement of application.
[1] This matter involves an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 1 August 2011. The application was made by The Australian Workers’ Union (the AWU) on behalf of Ken Van Langeraad, (the applicant) and the respondent employer is D & D Traffic Management Pty Limited, (the employer).
[2] The application indicated that the date of the applicant’s dismissal was 8 July 2011. Consequently the application was made 10 days after the time limit prescribed by subsection 394 (2) of the Act.
[3] The employer’s response to the application (Form F3) stated, inter alia, “1. Whilst not formally objecting to the late application, we do dispute the interpretation applied in the reasons provided by the AWU for an extension to be granted.” The matter was the subject of unsuccessful conciliation held by telephone on 30 August 2011. The file contains a Conciliator Report which includes the following entry: “The application is out of time, however the Respondent does not wish for [sic] “formally” object to it and would be willing to agree to having the substantive issue only dealt with.”
[4] Despite the earlier suggestions to the contrary, the employer decided to make a jurisdictional objection to the application on the basis that the application had not been made within 14 days of the dismissal.
[5] On 28 October 2011, Fair Work Australia (FWA) conducted a Hearing to deal with the question of extension of time. At the Hearing the applicant was represented by Mr G Beard from the AWU who adduced evidence from one witness, Mr Patrick Murray, an Official of the AWU. The employer was represented by Mr G Hogbin who was assisted by Mr B Marsonet who called Mr Hogbin as a witness.
Factual Background
[6] The applicant had worked for the employer for about 1 year and 5 months. The applicant was employed as a team leader involved in the employer's traffic control and management operations. The applicant was employed as a casual working on a regular and systematic basis.
[7] On Friday 8 July 2011, the employer met with the applicant and advised him that he was dismissed from employment. The applicant was provided with a letter of dismissal dated 8 July 2011 (Form F3 - MFI ‘1’). The letter of dismissal refers to a number of unspecified incidents which appear to relate to unsatisfactory work performance and or conduct.
[8] Shortly after his dismissal the applicant made contact with Mr Murray in his capacity as an official of the AWU. The applicant advised Mr Murray of the termination of his employment and that he sought to challenge what he alleged to be an unfair dismissal. Mr Murray advised the applicant that he would challenge the dismissal and on his behalf would contact the relevant employer representative, Mr Hogbin.
[9] On the following Monday, 11 July 2011, Mr Murray contacted Mr Hogbin and advised him of the challenge to the dismissal of the applicant. After some brief discussion a meeting to discuss the contested dismissal was arranged for Friday, 15 July 2011. On 15 July the applicant accompanied Mr Murray to the meeting with Mr Hogbin and some lengthy discussion regarding the matter occurred. The challenge to the applicant's dismissal was not resolved. However Mr Murray, with the applicant's consent, proposed a financial settlement as a means to avoid any further agitation of the challenge by way of a foreshadowed application of an unfair dismissal claim.
[10] Mr Hogbin did not have any authority to respond to the proposition for settlement of the matter as advanced by Mr Murray. Mr Hogbin undertook to contact the employer's Managing Director, Mr Robert Cazzolli, so as to obtain authority to provide for a response to the settlement proposition. Although Mr Hogbin anticipated that a response may have been provided later that day, he was unable to make contact with Mr Cazzolli and it was not until Monday 18 July, when Mr Hogbin telephoned Mr Murray and advised that the settlement proposition was rejected.
[11] Mr Murray was not content with this advice and he continued to pursue the settlement proposition and requested that the applicant’s dismissal challenge be included as part of enterprise agreement discussions which had been planned for later that week (22 July). Mr Hogbin advised Mr Murray that he would permit the applicant's dismissal issue to be included as part of the enterprise agreement discussions. There was disputed evidence as to whether at around the time of these discussions Mr Murray raised with Mr Hogbin the question of the approaching time limit for the filing of any unfair dismissal claim.
[12] The meeting planned for Friday 22 July was postponed due to inclement weather. On or about 20 July Mr Hogbin posted a letter to Mr Murray which set out in some detail the basis for the applicant’s dismissal and the employer's rejection of the settlement proposition. Mr Murray did not receive the letter until Monday, 25 July 2011. Upon review of the contents of the letter of 20 July, Mr Murray became convinced of the firmness of the employer’s rejection of the settlement proposition and he made arrangements for the applicant to see Mr Beard in order to prepare an unfair dismissal claim. The applicant was apparently unable to meet with Mr Beard until later in that week (ending Friday 29 July), and the application was filed on Monday of the following week, 1 August.
The Applicant’s Case
[13] Mr Beard from the AWU, who appeared on behalf of the applicant, submitted that although the application had been filed 10 days out of time there were exceptional circumstances which should permit an extension of time. Mr Beard referred to the provisions of subsection 394 (3) of the Act.
[14] Mr Beard submitted that the reason for the delay with the lodgement of the application involved the ongoing discussions between Mr Murray and Mr Hogbin about the proposition to settle the challenge to the applicant's dismissal. In this regard, Mr Beard stressed that almost immediately after the dismissal the applicant had made contact with the AWU Official, Mr Murray, who then commenced to act on his behalf. Mr Beard said that there could be no suggestion that the applicant was at fault personally as he had acted quickly to engage the assistance of the AWU Official.
[15] Mr Beard also submitted that the delay in filing the application occurred because of the ongoing possibility for the settlement proposition to remove any need for a claim to be made at all. Mr Beard submitted that the delay with finalising the settlement proposition can be attributed to the employer and that during that time of the delay and at the early stage of proceedings before FWA, the employer indicated that it would not oppose an extension of time for any late unfair dismissal claim.
[16] Further, Mr Beard submitted that there would be no prejudice to the employer should the extension of time be granted and there were sufficient merits in respect of the circumstances surrounding the dismissal of the applicant. In summary, Mr Beard said that exceptional circumstances existed, particularly in respect to the representative error which could be identified in this instance together with the earlier position of the employer indicating that it would not object to an extension of time. Consequently Mr Beard urged FWA to grant an extension of time and allow the application to proceed.
The Respondent’s Case
[17] Mr Hogbin, who appeared for the employer, submitted that the applicant had not established that exceptional circumstances existed so as to permit an extension of time. Mr Hogbin referred to the provisions of subsection 394 (3) of the Act and submitted that; “This then requires all the items must be taking [sic] into account, to meet the definition of exceptional. If any of the items either collectively or individually are not exceptional then no consideration should be granted.”
[18] Mr Hogbin made submissions regarding the reasons for the delay with the lodgement of the application. Mr Hogbin said that the employer should in no way be held responsible for the delay with filing of the application. In particular he said that the employer did not prevent the AWU from taking whatever action was required within the relevant timeframe. Mr Hogbin said that the discussions which had taken place between himself and Mr Murray were not unusual and would be commonplace in circumstances where a dismissal was under challenge. According to the submissions and Mr Hogbin, these discussions between the parties could not be considered as exceptional and did not operate as any impediment to the AWU making an application within time.
[19] Mr Hogbin made further submissions which addressed the various other matters contained within subsection 394 (3) of the Act. In summary, Mr Hogbin said that there was no exceptional aspect established for the delay in lodgement, the applicant was obviously aware of the dismissal at the time and there was little merit in the application. Consequently, according to Mr Hogbin FWA should reject the application for an extension of time.
Consideration
[20] Subsection 394 (3) of the Act provides FWA with a discretion to extend the time limit of 14 days as fixed by subsection 394 (2). Subsection 394 (3) is in the following terms:
“(3) 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.”
[21] As can be seen from subsection 394 (3), FWA must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which FWA is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a prescribed time.
[22] Importantly the onus rests with an applicant to convince FWA to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394 (3) of the Act, it seems to me that the particular length of any delay should logically be connected to the onus on any applicant seeking the exercise of the discretion to extend time. It would be logical for the length of any delay to amplify the onus on an applicant in broadly exponential terms, such that the longer the delay is, the greater the difficulty is in establishing proper basis for the exercise of the discretion.
[23] Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years must be assessed differently to a delay of 21 days where the time limit was 14 days. Consequently I believe that the length of the delay should be assessed as a percentage of the legislative time limit.
[24] In this case the delay was 10 days relevant to the 14 day time limit. Consequently the delay has represented a little under ¾ of the prescribed time limit.
Subsection 394 (3) (a) - the reason for the delay
[25] In this instance the reason for the delay has three primary components. Firstly in broad terms the delay was caused by representative error on the part of Mr Murray. Secondly, the error made by Mr Murray was to some extent attributable to the delays associated with discussions that he was implementing with the employer in an endeavour to settle the challenge to the applicant’s dismissal. Thirdly, Mr Murray appeared to have acted on the erroneous belief that the employer would not challenge any out of time aspect of a late unfair dismissal claim.
[26] In respect to the issue of representative error a Full Bench of FWA has recently summarised this question as follows:
“[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case 16 in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case17 in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case18 found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act.19 We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.
[25] The approach in Clark’s Case was summarised in Davidson’s Case 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 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 carryout 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.” 1 [Emphasis added]
[27] In this case the applicant acted quickly to challenge his dismissal and he engaged Mr Murray to pursue the employer on his behalf. The delay with the lodgement of the application was something about which the applicant was essentially blameless. The applicant would have understandably believed that Mr Murray would have properly attended to the filing of any unfair dismissal application in conjunction with the other activities involving direct negotiation with the employer.
[28] Negotiation directly with an employer as part of a challenge to dismissal can naturally create a reluctance to initiate formal proceedings by way of the lodgement of an unfair dismissal claim. It is often a matter of fine judgement as to whether prospects for a convenient settlement might be quickly extinguished if the other side is issued with notification of commencement of FWA proceedings. The particular circumstances in each case requires careful evaluation but generally it would be a very brave, or foolhardy union official who consciously delayed filing of an unfair dismissal claim beyond the prescribed time limit because of a potential for settlement to emerge.
[29] The third component associated with the delay with lodgement involved the assertion that the employer had told Mr Murray that it would not oppose any extension of time if a late unfair dismissal application was made. At an early stage of the Hearing I raised this issue directly with Mr Hogbin as the following extract from transcript records:
“PN0
THE COMMISSIONER: Can I, just before we go ahead. Mr Hogbin, do you want to say anything about this? It does appear that at a very early stage of the proceedings the company had indicated that it wasn't taking an objection to the question of extension of time.
PN11
MR HOGBIN: Commissioner, the company always believes that the rights exists for the extension of time, but we clearly oppose the union's arguments presented where they, if you like, lay blame for their failure on the respondent, and that was clearly noted in our original application that we opposed that argument. I think it's in our submissions, if you bear with me. 4.1 it is, Commissioner, of our response to the applicant's - - -
PN12
THE COMMISSIONER: Irrespective of the argument about the basis for this, the critical aspect is whether there is an objection taken to the extension of time.
PN13
MR HOGBIN: Well, Commissioner, as and when a late application occurs, the provision for this actual hearing here today before the tribunal is a matter to determine. We had never at any stage told the union that we would not oppose the application - would not oppose, I beg your pardon, the extension of time argument.”
[30] Consequently a direct factual conflict arose as to whether or not Mr Hogbin told Mr Murray that the employer would not oppose any extension of time. Notwithstanding any nuances as to whether and precisely what direct words may have been said, as opposed to indirect indications or inferences about the employer's position regarding any extension of time, it is necessary to determine whether Mr Murray acted, or more accurately failed to act, in the genuine belief that the employer would not take issue with any extension of time that may be required for a late unfair dismissal application.
[31] I have earlier referred to extracts from the employer's reply (Form F3) and the Conciliator Report both of which strongly support the assertion made by Mr Murray that he had been given to believe that the employer would not object to any extension of time. It is difficult to understand or reconcile the position advocated by Mr Hogbin during the Hearing with the statement in the employer's reply; “Whilst not formally objecting to the late application...”. There is no practical consequence from the use of the word “formally”. The matter is simple. There either is or is not an objection to the extension of time. Similarly, any argument about the alleged basis for seeking an extension of time only arises for consideration if an objection is actually taken. The only conceivable explanation for the incongruity is that the employer has changed its mind, retracted its earlier position and decided to object to any extension of time.
[32] I have carefully considered all of the evidence concerning the issue of whether the employer had on earlier occasions, indicated that it would not object to an extension of time.
It is clear that at an early stage of proceedings before FWA the employer indicated that it did not object to the late application. This is consistent with the evidence of Mr Murray that he was told or at least given strong indication, that the employer would not oppose an extension of time. If the employer had not given previous indications that it would not object to a late application it would be unlikely to concede that point by way of the statement made in the employer's reply.
[33] The most generous conclusion which can be reached is that Mr Hogbin may have been mistaken or unable to clearly recollect what he had said to Mr Murray about the employer's position regarding any extension of time. Consequently Mr Murray was led into error by statements made by the employer and his failure to take faster action for lodgement of the application within time was, to a significant extent, caused by what has now been established to be misleading conduct of the employer.
Subsection 394 (3) (b) - whether the person first became aware of the dismissal after it had taken effect
[34] The applicant first became aware of the dismissal at the time at which he was dismissed. Consequently this factor does not provide any assistance to the applicant.
Subsection 394 (3) (c) - any action taken by the person to dispute the dismissal
[35] The applicant took almost immediate action to dispute the dismissal. On the next working day following the dismissal the employer was contacted by the AWU and advised of the challenge to the dismissal. Thereafter a series of meetings and other communications were undertaken as part of the direct negotiation surrounding the disputed dismissal. Therefore this factor assists the applicant and operates to support the extension of time.
Subsection 394 (3) (d) - prejudice to the employer (including prejudice caused by the delay)
[36] The employer provided no basis upon which to establish that there was any prejudice that could be identified in this instance. Consequently this factor could be considered to provide potential assistance to the applicant.
Subsection 394 (3) (e) - the merits of the application
[37] This factor, described in the Act as “the merits of the application”, is directed towards some elementary assessment of the potential prospects of the matter at Hearing if the extension was granted. The employer submitted that this was a case involving limited merit. Conversely the AWU submitted that substantial procedural errors occurred in respect of the dismissal which may have been caused by misunderstandings on the part of the employer relating to the engagement of the applicant as a casual employee.
[38] It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. Importantly there was no suggestion that the unfair dismissal claim was entirely without basis or involved some vital flaw which would render it open to the prospects of summary disposal. On any objective and balanced assessment it presents as an arguable case. Consequently the logical consideration of this factor would have FWA treat it as neutral.
Subsection 394 (3) (f) - fairness as between the person and other persons in a similar position
[39] In the absence of any evidence about the treatment of other employees of the employer I have decided to treat this factor as being neutral.
Exceptional Circumstances
[40] Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case ofJohnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery 2. The consideration therein establishes a caution against adopting an overly stringent interpretationofwhat constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.
[41] Further assistance in providing an understanding of exceptional circumstances in the context of a legislative time limit can be obtained from the Full Bench Decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd and the following paragraph from that Decision is particularly helpful:
“ [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.” 3
Conclusion
[42] In this instance the exercise of the discretion to extend time has been required in respect to a delay of less than ¾ of the prescribed time limit. In this context the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been given careful consideration.
[43] The reason for the delay involved three components. These three components relate to representative error and two particular issues that offered explanation for that error. In summary, the representative error of itself, in circumstances where the applicant was blameless has established exceptional circumstances sufficient to extend time. Analysis of the explanation for the representative error revealed unfortunate conduct of the employer which significantly contributed to the representative error. The other factors under consideration either assisted the applicant's claim for FWA to exercise the discretion to extend time, or were of neutral impact.
[44] Consequently exceptional circumstances have been established and it would be just and equitable for FWA to exercise the discretion to extend time. An Order [PR516648] made pursuant to subsection 394 (3) of the Act allowing a further period until 1 August 2011 for the application to be made will issue in conjunction with this Decision.
[45] Further proceedings by way of Directions are fixed for 9:30 am on 1 December 2011 to facilitate the Hearing of the substantive claim.
COMMISSIONER
Appearances:
Mr G. Beard, from The Australian Workers’ Union, appeared on behalf of the applicant;
Mr G. Hogbin appeared on behalf of the employer.
Hearing details:
Sydney,
28 October 2011.
1 M N Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728.
2 Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.
3 Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.
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