Kevin Bailey v BAE Systems Australia Defence Pty Limited

[2013] FWC 998

[2013] FWC 998

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Bailey
v
BAE Systems Australia Defence Pty Limited
(U2012/13170)

COMMISSIONER WILLIAMS PERTH, 14 FEBRUARY 2013

Termination of employment - extension of time.

[1] Mr Kevin Bailey (the applicant or Mr Bailey), the applicant in this matter has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is BAE Systems Australia Defence Pty Limited (the respondent or BAE).

[2] The application was not the subject of a conference before a conciliator because Mr Bailey failed to attend at the listed time and the matter has been referred to me for determination of a preliminary objection.

[3] The applicant was apparently dismissed on 27 August 2012. The application was lodged on 12 September 2012.

[4] The application has been lodged more than 14 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[5] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to allow a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394(3) of the Act as set out below:

“s. 394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when FWA 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 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(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.”

[6] Submissions have been provided by the parties regarding allowing a further period for this application to be made.

The applicant’s submissions

[7] It is submitted that although a termination letter was handed to Mr Bailey on 27 August 2012, he was advised by BAE that there was an internal appeal available to him in regard to the termination if exercised within 3 days of the letter. The termination accordingly was not final, as BAE’s own internal appeal process had still not been completed.

[8] Mr Bailey through Civic Legal applied for that appeal on 30 August 2012.  Having exercised that right of appeal the applicant submits that notwithstanding the words used in the letter dated 27 August 2012, the termination was not at that stage a final determination of the employer to terminate Mr Bailey as it was subject to BAE’s own internal appeal process.

[9] The application for an internal appeal stated Mr Bailey considered the termination of his employment to be harsh and unreasonable and requested that a determination be made to withdraw the notice of termination. At that stage Mr Bailey remained ready, willing and able to return to work with BAE Systems in accordance with the terms of his contract.

[10] The request for appeal also sought that before BAE made a final determination on this matter, that notes taken at each of the disciplinary meetings with Mr Bailey be provided to Civic Legal. Those notes have never been provided notwithstanding undertakings given to Mr Bailey in the meetings.

[11] By email on 6 September 2012 BAE advised that due to the HR Manager being on leave they would not deal with the internal appeal before 14 September 2012.

[12] As a result of the delay in the hearing of the internal appeal Mr Bailey was advised by his legal representative, as a cautionary matter, to commence the unfair dismissal application prior to the appeal hearing.

[13] At the time after his employment was terminated Mr Bailey had some issues with receiving email communications which delayed him receiving this advice to apply to the Commission. He attended at the office of Civic Legal late on 11 September 2012 to sign the application and provide credit card authority for payment of lodgement fees.

[14] The unfair dismissal application was lodged with the Commission the next morning on 12 September 2012.

[15] Although the application cites the date of termination as the date of the letter 27 August 2012, the applicant submits that as a matter of fact the termination was still conditional on the outcome of the internal appeal process offered by BAE.

[16] On 14 September 2012 Natasha Charles the HR Manager at BAE advised by email that the internal appeal would be heard on 19 September 2012.

[17] The applicant accordingly submits that the true date of final termination of employment should be taken as 19 September 2012, being the date on which BAE withdrew their offer to review the notice given on 27 August 2012.

[18] With regard to the discretion to accept the application out of time:

1. If the last day of Mr Bailey’s employment is 19 September 2012 then the application was made within time;

2. If the last day of Mr Bailey’s employment is determined as 27 August 2012 then the last day of the 14 day period was 10 September 2012;

3. The application was lodged at 11.00 a.m. on 12 September 2012;

4. The delay of less than 2 days does not prejudice the respondent in any way;

5. The applicant submits that there are exceptional circumstances in that:

a. There was pending an internal appeal process which had already been initiated which had as a possible outcome the retraction of the termination notice, and that appeal was not due to be heard until 19 September 2012;

b. The respondent failed to follow through with its internal appeal procedures once the Fair Work application had been notified to them thereby removing the opportunity afforded to other BAE employees by their policy for the applicant to argue for the withdrawal of the termination notice;

c. Although the termination letter purported to take effect from 27 August 2012, the respondent led the applicant to believe that there was a bone fide review process available to him that may lead to the termination being withdrawn, but has since refused to complete that appeal process.

[19] In all of the above circumstances the applicant submits that if the Commission determines the date of termination as 27 August 2012 it should exercise its discretion to permit the application to proceed notwithstanding the late filing of the application.

The respondent’s submissions

[20] The respondent does not contest any of the factual matters asserted by the applicant.

[21] The respondent submits the dismissal was effective from 27 August 2012. It is submitted it was made very clear to Mr Bailey in the meeting on 27August 2012 that the dismissal took immediate effect. This was confirmed in writing to Mr Bailey on a letter issued to him on the same day. Mr Bailey was offered a right of appeal; however this in no way meant that the dismissal was not immediately effective or that it was pending. Evidence of this is the fact that Mr Bailey’s employment was terminated formally on the payroll system with immediate effect, a fact which was also confirmed to Mr Bailey by letter on 28 August 2012.

[22] Whilst the appeal hearing was set for 19 September 2012 due to employee leave, the respondent submits this in no way prevented Mr Bailey from putting in an application to the Commission within the 14 days.  The fact that Mr Bailey did submit an application to the Commission prior to the appeal hearing date clearly indicates that he and his legal representative was cognisant of the 14 day timeframe. Therefore there is no real justification for submitting the application out of time.

[23] A conciliation meeting was arranged for 2 October 2012. Mr Bailey did not attend and this meant the conciliation could not proceed.

[24] Based on the above facts regarding the out of time filing and failure to attend conciliation, it is submitted that the Commission should now dismiss this application.

Are there are exceptional circumstances?

The reason for the delay

[25] Considering the information provided on behalf of the applicant one of the reasons for the apparent delay in making this application was the applicant’s and his representative’s belief that the dismissal was not final and was pending confirmation through BAE’s internal appeal process.

[26] The right to appeal BAE’s decision to dismiss the applicant was mentioned in the respondent’s letter to the applicant dated 27 August 2012 and the applicant’s legal representative had on 30 August 2012 written to BAE asserting the decision to dismiss was flawed and seeking that it be reviewed.

[27] The notice of termination of employment letter however also expressly states that:

“The dismissal is effective immediately. Final payment details will be notified to you in a separate letter.”

[28] In my view then the dismissal did take effect on 27 August 2012.

[29] The other reason for the delay in making the application was that after the respondent on 6 September 2012 advised that the internal appeal could not be conducted before 14 September 2012 there was a delay in the applicant receiving his representative’s advice that he should as a consequence now make the application to the Commission. The applicant says this delay was because he was having some issues receiving email communications.

[30] In the circumstances of this case these are in my view acceptable reasons for the delay, of less than two days, in making this application.

Any action taken by the person to dispute the dismissal

[31] Within three days of having received the notice of termination of employment letter the applicant had through his representative provided BAE with a detailed explanation of why he believed the decision to dismiss was flawed and seeking that the decision be reviewed through their internal appeal process.

[32] This prompt action on behalf of the applicant demonstrates that he at all times disputed the dismissal. Indeed the applicant was represented at the disciplinary meetings prior to the decision being made to terminate him by his legal representative which underscores that he has at all times disputed BAE’s decision to dismiss him.

Prejudice to the employer (including prejudice caused by the delay)

[33] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[34] Neither party has provided submissions on the question of the merits of the application. The material provided however demonstrates that the parties have quite different views regarding a series of absences of the applicant. Both positions would superficially have merit however a final conclusion on the merits of the application cannot be determined without having heard the evidence and argument in full. Consequently merit is a neutral factor in the question of extending time.

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

[35] The question of fairness as between the applicant in other persons in a similar position does not arise in this case.

Conclusion

[36] The onus is on the applicant to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 14 days. I have considered the information provided and the submissions by both parties on the relevant factors and I am satisfied that there are acceptable reasons for the short delay in this case and that at all times, including before the dismissal occurred, the applicant has disputed the decision for him to be dismissed. Considering these matters and the other factors I do accept that there are in this case exceptional circumstances.

[37] Consequently I am persuaded that I should exercise the discretion available to allow a further period for this application to be made. An order to that effect will issue in conjunction with this decision.

[38] The matter will be now referred for conciliation.

COMMISSIONER

Final written submissions:

Applicant, 5 December 2012

Respondent, 17 December 2012

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