Luis De Barros v Wollongong Civil Contractors Pty Ltd T/A Wollongong Civil Contractors Pty Ltd
[2010] FWA 9166
•29 NOVEMBER 2010
`[2010] FWA 9166 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Luis De Barros
v
Wollongong Civil Contractors Pty Ltd T/A Wollongong Civil Contractors Pty Ltd
(U2010/12513)
COMMISSIONER CONNOR | WOLLONGONG, 29 NOVEMBER 2010 |
Application for alleged unfair dismissal—out-of-time application—failure of applicant to pursue his claim—ex parte proceedings
[1] On Friday, 17 September, 2010 Mr Luis De Barros lodged an application under s.394 of the federal Fair Work Act, 2009 (the FW Act) to Fair Work Australia (FWA) concerning the termination of his services as a labourer with Wollongong Civil Contractors Pty Limited after over 8 years of employment. Conciliation had been arranged by teleconference on Thursday, 14 October, 2010. That attempt at conciliation was unsuccessful and the matter was allocated to me for arbitration. The subsequent proceedings before me were conducted in the premises at 90 Crown Street, Wollongong which Fair Work Australia now shares with the Industrial Commission of New South Wales.
[2] I set the matter down for mention and programming on Monday, 1 November, 2010. Mr Davies represented Wollongong Civil Contractors. There was no appearance by Mr De Barros nor had he contacted me to explain his intentions with his application. Ultimately, I set the matter down for hearing on Monday, 29 November, 2010, intending to proceed ex parte in the event of Mr De Barros’ failure to appear at that time. Again he did not appear in the proceedings.
[3] Initially the teleconference for the conciliation of Mr De Barros’ s.394 application was arranged for Monday, 11 October, 2010. At that time Mr De Barros was assisted by a solicitor at the Illawarra Legal Centre, which provides pro bono legal advice to persons in the Illawarra region on a range of legal matters, including employment law. Monday, 11 October, 2010 was unsuitable for that solicitor and he asked for the date to be changed. The teleconference proceeded instead on Thursday, 14 October, 2010 but, as I indicated earlier in this decision, it was unsuccessful. In fact, the conciliation was effectively aborted because Mr De Barros was not present in the solicitor’s office for the whole of the teleconference. I understand that he walked out of the solicitor’s office prior to the teleconference, terminating the services of that solicitor in the process. Therefore that solicitor was not able to speak on his behalf in the teleconference and no attempt at conciliation was possible.
[4] That solicitor has nevertheless provided an e-mail to FWA expressing concern that Mr De Barros would encounter difficulties in self representation in any subsequent proceedings in FWA, viz:
”It is our considered view Mr De Barros lacks the literacy skills and other educational attainments to be able to represent himself at a conciliation conference. He needs our representation. We anticipate that FWA will find it very difficult to conduct a proper and fair conciliation if Mr De Barros is not represented. He is unlikely to understand the process, the matters at stake and the merits of any settlement proposal. Moreover, it is probably the case that he will not be able to read any settlement documents.”
[5] There is a threshold issue to consider before the merits of Mr De Barros’s s.394 application may be considered by me. Under s.396 certain matters are required to be heard as threshold issues before any consideration of the merits of the claim. In particular, one such issue is whether the application was made within the time prescribed in s.394(2), ie within 14 days after the dismissal took effect or such further period as FWA allows.
[6] In his application Mr De Barros has indicated that his dismissal from his position in Wollongong Civil Contractors was Tuesday, 31 August, 2010. Wollongong Civil Contractors have indicated that the dismissal actually took effect from Wednesday, 1 September, 2010. In either case, the s.394 application Mr DeBarros lodged was outside the 14 days prescribed in s.394(2)—on Friday, 17 September, 2010. Wollongong Civil Contractors has therefore raised that issue as a jurisdictional challenge to the application.
[7] By virtue of s.394(3), members of FWA hold a discretion to admit out-of-time applications. It reads as follows:
“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.”
[8] It is the opening words of s.394(3)—if they are satisfied that there are exceptional circumstances for doing so—which appear to have the greatest relevance in determining whether to admit an out-of-time s.394 application to go forward to be considered on its merits. Formerly, the basis of consideration of out-of-time unfair dismissal claims in the Federal industrial jurisdiction was the authoritative decision of Marshall J in Brodie-Hanns v. MTV Publishing Company (1995) 67 IR 298 at pp.299 and 300, ie whether there were “special circumstances” to justify an exercise of discretion. But the opening words of s.394(3) now suggest a more restrictive approach than had hitherto applied—“exceptional circumstances”—and applications made out-of-time should now be considered in that context.
[9] In his decision of Thursday, 25 February, 2010, in Johnson v. Joy Manufacturing Company Pty Limited, trading as Joy Mining Machinery[2010] FWA 1394 Lawler VP highlighted that distinction, commenting (in paras 22 and 24) that s.394(3):
“represents a significant departure from the previous position under the Workplace Relations Act, 1996 (WR Act). The discretion to extend time for an unfair dismissal application under the WR Act was found in s.643(14). Marshall J (in Brodie Hanns v. MTV Publishing Company) held that ‘special circumstances are not required’. By including a requirement in s.394(3) that there be ‘exceptional circumstances’, the legislature must be taken to have intended a significant narrowing of the discretion to extend time”
[10] Mr De Barros has conceded in his s.394 application that he was dismissed for misconduct—his refusal to perform a particular task given to him, the fact that he has complained over alleged safety issues and, most importantly, that he tested positive to drugs—methamphetamine (ecstacy and speed) and cannabis. That immediately raises occupational health and safety concerns. Mr De Barros was working with a jack hammer when he was observed behaving erratically and sent for a drug test. Wollongong Civil Contractors assert that the directions Mr De Barros received were lawful and reasonable and his failure to comply with them also raised safety issues, ie acting disruptively and erratically and refusing to wear required safety equipment.
[11] I am prepared to accept that the comments made by the solicitor who had formerly represented Mr De Barros—that because of his emotional state and his health he would really lack the ability to run a proper case in FWA unaided. But in his absence in the proceedings before me on Monday, 29 November, 2010 his reasons for his delay in lodging his application are not known.
[12] Nor, at least on the material provided to me in this hearing, does it appear that Mr De Barros’s application can have any real merit—an issue highlighted in s.394(3). That is a common approach by all courts and tribunals [Burns v. Grigg (1967) VR 871 at p.872 and Mitchelson v. Mitchelson (1979) 24 ALR 522 at p.524]. Essentially, if an out-of-time application is unlikely to succeed, it goes without saying that to refuse the claim will not, in fact, constitute any hardship or unfairness to the dismissed employee. It would do no more than delay the inevitable and avoid considerable cost and inconvenience to both parties.
[13] In any event, in view of the failure of Mr De Barros to appear in the proceedings, or communicate with FWA, it is open to me to conclude that he has abandoned his application. I accept that if by some mischance or accident a party is shut out from the right to present a case in FWA, common justice demands, so far as can be given effect to without injustice to the other party, that the party who is absent should be given every opportunity to present themselves for hearing [Grimshaw v. Dunbar (1953) 1 All ER 350 at p.355]. But that does not appear to me to be the position in this hearing.
[14] I therefore dismiss the s.394 application lodged by Mr De Barros.
COMMISSIONER
Appearances:
Applicant did not appear
Heath Davies, Worktivity, for respondent
2010
Wollongong
November, 29
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