Malcolm Stephens v Thiess Services Pty Ltd T/A Thiess

[2014] FWC 330

[2014] FWC 330

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Malcolm Stephens
v
Thiess Services Pty Ltd T/A Thiess
(U2013/9909)

COMMISSIONER JOHNS MELBOURNE, 13 JANUARY 2014

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

[2] This decision is about whether the Commission should allow Malcolm Stephens (Applicant) a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his finally completed application was lodged on 25 September 2013, that being 216 days after his employment was terminated by Thiess Services Pty Ltd (Respondent) on 21 February 2013. Accordingly, the matter proceeded by way of a jurisdictional hearing.

Preliminary matter - permission to be represented

[3] On 22 November 2013 the Respondent sought permission from the Commission for it to be represented by a lawyer, namely Tim Lange from Piper Alderman. It was necessary to determine this preliminary matter at the outset to ensure that the manner in which any jurisdictional hearing was conducted was fair and just having regard to the decision of the Federal Court of Australia in Warrell v FWC [2013] FCA 291.

[4] In Warrell v FWC the Federal Court held that,

A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.[at para 24]

[5] Section 596 of the Act provides as follows:

Representation by lawyers and paid agents

(1)    Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.

(2)    FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA only if:

(a)    it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b)    it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c)    it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

[6] In its written submissions filed on 21 November 2013 the Respondent primarily relied upon section 596(2)(a) of the FW Act, arguing that permission should be granted on the basis that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter involving a jurisdictional objection. The Respondent referred the Commission to the decision of O’Grady v RFDSA. 3

[7] The Applicant, representing himself, did not object to the Respondent being represented by a lawyer. 4

[8] In deciding the question of permission to be represented the Commission considered all that was put before it in the submissions and had regard to the cases to which it was referred. In all the circumstances the Commission granted the Respondent permission to be represented by a lawyer pursuant to s596(2)(a). The Commission was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

The jurisdictional objection

[9] On 1 October 2013 the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect.

[10] On 30 October 2013 the Commission issued directions for the parties to provide submissions and witness statements in relation to the jurisdictional objection.

[11] On 5 November 2013 the Applicant sent an email to the Commission which, for the purposes of the jurisdictional hearing, was treated as both his witness statement and submissions. 5 In short the Applicant says that, although the termination took effect on 21 February 2013:

● the Respondent had granted him an appeal mechanism;
● he complied with the appeal mechanism by filing a report from an expert on 26 March 2013; 6

the Respondent rejected his appeal on 24 April 2013; 7 and

by telephone he made an application for an unfair dismissal remedy with the Commission within 21 days after the Respondent dismissed his internal appeal.

[12] On 19 November 2013 the Respondent filed its submissions in relation to the Applicant’s application for an extension of time 8 and an Affidavit for David van den Berg.9 In short, the Respondent says:

● there was no appeal process (although it acknowledges that the Applicant was told that if the Respondent was provided with new information it would consider it); 10

●on 24 April 2013 the Respondent informed the Applicant that its decision to terminate the Applicant’s employment “would stand”; 11

●the copy of the Application served on them appears to have been completed on 23 September 2013 and filed in the Commission on 25 September 2013;●there are no exceptional circumstances such that the Commission should allow a further period for the application to be made by the Applicant; and●the Applicant has failed to explain the delay.

The jurisdictional hearing on 22 November 2013

[13] A jurisdictional hearing commenced on 22 November 2013. During the course of the hearing the Applicant gave evidence and again asserted that he made his application to the Commission “within that 21 day period from 24 April” 12 (i.e. when the Applicant says the Respondent dismissed his internal appeal). He said “I remember applying for the unfair dismissal over the phone...”13

[14] At this point in the hearing the Commission, as presently constituted, caused an examination to be made of the Commission’s database. That examination confirmed that the Applicant had indeed lodged his application by telephone and that he had done so on 15 May 2013 (i.e. within 21 days of the Applicant being advised by the Respondent that its decision to terminate his employment, in the words of Mr van den Berg, “stood” 14).

[15] The examination of the Commission’s database revealed the following chronology of events in relation to the history of the Applicant’s application for an unfair dismissal remedy:

a) On 15 May 2013 at 10.53 am the Applicant made an application to the Commission for an unfair dismissal remedy “through the Helpline” (i.e. by telephone). 15

b) On 28 May 2013 the Commission processed the application fee. 16 On that day it also sent a letter to the Applicant outlining the steps that he needed to take to complete his Application. The Applicant was advised that;

i. “the rule governing applications by telephone (Rule 14, FWA Rules 2010) states that a telephone application will not be further processed until the signed, completed application is returned to the Commission.”

ii. he had until 5 May 2013 to complete his application or the matter may be closed. 17

c) On 27 June 2013 at 2.45 pm a Commission staff member spoke with the Applicant about his incomplete application. The file note records the Applicant advising the Commission staff member that “he did not receive [the] letter sent on 28 May 2013, ... he still want[s] to proceed with his application”. 18 The staff member then sent the Applicant another letter so that the application could be completed correctly. This correspondence stated that “In the absence of any advice from you within 7 days from the date of this letter [27 June 2013], this application may be closed.”19

d) On 17 July 2013 the Commission sent a third letter to the Applicant requesting he complete his application. 20

e) On 29 July 2013 the Commission sent a fourth letter to the Applicant requesting he complete his application. 21

f) On 19 September 2013 at 3.40 pm a Commission staff member spoke with the Applicant. The Applicant advised that “he had not received any correspondence from [the Commission]” 22. Following this conversation, also on 19 September 2013, the Commission sent a fifth letter to the Applicant requesting he complete his application. This letter stated that “in the absence of any advice from you within 3 days of the date of this letter this application may be dismissed.”23

g) On 25 September 2013 the Commission received a completed Form F2 - Application for Unfair Dismissal Remedy from the Applicant. The Form F2 was signed and dated by the Applicant on 23 September 2013.

[16] In light of the further information contained on the Commission’s database, but which had not been included on the Commission’s paper file, nor made available to the Respondent before the hearing on 22 November 2013, the Commission decided to adjourn the hearing to allow the Respondent an opportunity to consider its position in respect of its jurisdictional objection. The matter was relisted for hearing on 12 December 2013.

[17] On 3 December 2013 the Respondent filed supplementary submissions. In short the Respondent maintained its jurisdictional objection to the Commission hearing and determining the Applicant’s unfair dismissal application on that basis that it was not made within 21 days after the dismissal took effect. The Respondent noted that even the incomplete telephone application made on 15 May 2013 was “61 days out of time”. 24

Legislative scheme

[18] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.

[19] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 25 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[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.  26

Facts leading up to and relating to the dismissal

[20] On 14 February 2013 “a call [was] made to VicRoads ... where a person impersonated Jason Hickey from [Traffic Group Australia] (TGA) and engaged in inappropriate behaviours towards the VicRoads call centre operator.” 27

[21] On 15 February 2013 the Respondent was informed by one of its clients, South East Water, that an inappropriate phone call had been made to VicRoads. 28

[22] Although no evidence was presented to the Commission on this matter, at some point between 15 February 2013 and 18 February 2013, (it must follow that) the Respondent formed the view that the person who made the inappropriate phone call was the Applicant.

[23] On 18 February 2013 the Respondent sent the Applicant a letter inviting him to attend a meeting on 20 February 2013 to discuss a telephone call. Mr Gould, on behalf of the Respondent, wrote “having heard the recording Thiess believes that you were the caller.” 29 The letter disclosed the purpose of the meeting and informed the Applicant he may have a witness attend with him.30

[24] On 20 February 2013, the meeting took place between the Applicant, his witness Shelee Walsh and the Respondent’s David van den Berg (People and Capability Manager) and Matt Gould (Alliance Manager Utility Services). 31

[25] On 21 February 2013, the Respondent provided the Applicant with a letter terminating his employment. 32 The Respondent concluded that the Applicant had engaged in serious misconduct.

[26] The Applicant has, at all times, maintained that the allegations were false. Following the Applicant “being informed that his employment was to be terminated”, a conversation occurred between Mr van den Berg and the Applicant in which the Applicant asked whether he could submit any further evidence to the Respondent if he could find any. Mr van den Berg confirmed to the Applicant that new evidence would be considered. 33

[27] On 26 March 2013 the Applicant provided the Respondent with a copy of a report by Dr Phillip Rose. 34 The report was a voice comparison report between the Applicant’s voice and the recording of the phone call the Applicant was alleged to have made to Vic Roads. Dr Rose concluded that it was “more likely [that] the speaker in the offensive call was not [the Applicant].”35

[28] On 24 April 2013 the Respondent provided the Applicant with a letter in which it advised him that “the original decision to terminate your employment on 21 February 2013 stands”. 36

[29] As stated above, on 15 May 2013 at 10.53 am the Applicant made an application to the Commission for an unfair dismissal remedy by telephone. 37 That application was within 21 days of him being advised that the Respondent’s decision to terminate stood, but it was 83 days after the termination took effect.

[30] In any case the telephone application was incomplete. By reason of the chronology of events outlined at paragraph [15] above the Application was not properly made until 25 September 2013 (i.e. 216 days after the termination took effect).

Consideration

Paragraph 394(3)(a) - The reason for the delay

[31] It is undisputable that there were 216 days between when the termination of the Applicant’s employment took effect and when a proper application was filed with the Commission.

[32] However, there is not one reason for the delay. Rather the delay was caused by a number of reasons as follows:

The first reason for delay

a) First, by reason of the Respondent indicating to the Applicant that “he could submit any further information if he could find any ... [and that] it would be considered”, 38 the Applicant formed the view that he was being afforded an internal appeal against the decision to terminate his employment.

The Respondent denies that there was an internal appeal or that it in any way put on hold its decision to terminate the Applicant’s employment.

However, in all the circumstances it was reasonable for the Applicant to form the view that he was being afforded an opportunity to appeal if he could present new evidence.

The Applicant appears to have genuinely thought that the final decision about his employment would be made after this process was concluded. He was wrong in that assumption (i.e. the termination took effect on 21 February 2013). However, it would be unfair to penalise the Applicant for his incorrect assumption because it was genuinely held in the face of what he was told by Mr van den Berg about the preparedness of the Respondent to consider any new information. This was an unusual circumstance.

The second reason for delay

b) There was a delay in obtaining additional information. Although sometime in February (soon after the dismissal) the Applicant engaged the services of Dr Philip Rose, a forensic speech scientist from the Australian National University, Dr Rose’s report was not provided until 26 March 2013. 39 This delay was not the fault of the Applicant.

The third reason for delay

c) There was a delay in the Respondent considering the report from Dr Rose. The Respondent did not confirm the decision to terminate the Applicant’s employment until 24 April 2014. This delay was not the fault of the Applicant.

The fourth reason for delay

d) Once the Applicant was advised that the decision to terminate his employment “stood”, within 21 days, he made a telephone application to the Commission for an unfair dismissal remedy. That application was incomplete and that is a matter that the Applicant is responsible for. Thereafter there was a delay in regularising the application as the Commission made numerous attempts to contact the Applicant by mail and telephone. The Applicant claims he did not receive the relevant correspondence from the Commission.

e) Before the Commission the Applicant presented as an honest witness. Therefore, there is no reason to believe that the Applicant did in fact receive the correspondence from the Commission and ignored it. In fact the corroborative evidence is against such a conclusion. When a Commission staff member last spoke to the Applicant on 19 September 2013 and sent him a letter that day (which the Applicant would have received on or about 20 September 2013) in which the Applicant was told he had three days to complete the application, the Applicant complied by completing the application on 23 September 2013 (i.e. within 3 days) and posted it back to the Commission. When called to action, the Applicant took action. The completed application was then received by the Commission on 25 September 2013.

f) Although the delay in regularising the application is regrettable, in all the circumstances of this matter, it would be unfair to attribute that delay to the Applicant. The administrative delay was out of the ordinary course of the Commission’s usually efficient processes. To that extent it was an exceptional circumstance.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[33] It is uncontested that the Applicant first became aware of the dismissal on 21 February 2013.

[34] But, as stated above, the Applicant was mistaken in a belief that what he considered to be an internal appeals process impacted upon the finality of the decision. However, having regard to what Mr van den Berg said to the Applicant about the preparedness of the Respondent to consider any new information this is a special case and it constitutes an exceptional circumstance.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[35] The Applicant has always protested his innocence and took action to dispute the dismissal as follows:

a) When told his employment was terminated the Applicant made a request to Mr van Den Berg to provide additional evidence to prove his innocence;

b) The Applicant promptly engaged the services a forensic scientist to obtain a report to prove his innocence;

c) Within 21 days of being told that the decision to terminate stood, the Applicant made a telephone application for an unfair dismissal to the Commission; and

d) When pressed by the Commission to regularise his application he did so within the three days demanded of him.

[36] The action taken by the Applicant weighs in favour of granting him a further period to make his application.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[37] In the respondents initial submissions concerning the application for an extension of time that the respondents stated “other than the usual prejudice associated with delay, [the Respondent] does not assert any exceptional prejudice.” 40

[38] However, in its supplementary submissions the Respondent made the following submission,

Whilst the Respondent concedes that the absence of prejudice to the Respondent is not itself a factor that militates in favour of the granting of an extension of time, it submits that it may be prejudiced in two significant ways should such an extension be granted to the Applicant in this case:

i. Firstly, the Respondent may have lost the opportunity to obtain forensic evidence (for example, from Vic Roads or the telephone carriage service provider) of telephone records detailing the source and timing of the relevant telephone call – such records may have been purged due to the passage of time; and

ii. Secondly, the Respondent will be required to carry the cost of defending itself for the second time, having already participated in the dispute resolution process at the VEOHRC, including attendance at the conciliation on 9 August 2013.  41

[39] The prejudice asserted by the Respondent weighs against granting the Applicant a further period to make his application.

Paragraph 394(3)(e) - The merits of the application

[40] In the matter of Kornicki v Telstra-Network Technology Group 42the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.” 43

[41] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[42] The substantive factual contest between the Applicant and the Respondent is whether the Applicant made a telephone call to VicRoads on Thursday, 14 February 2013 in which he impersonated Jason Hickey from TGA and engaged in inappropriate behaviours towards the VicRoads call centre operator. The Applicant denies making the telephone call. Having heard the recording the Respondent believes the Applicant did make the telephone call. This is not a factual dispute that can be resolved at a jurisdictional hearing.

[43]

The Applicant wanted the Commission to hear the recording. 44 However, the Respondent made a decision not to tender in evidence the recording of the telephone call.45 It was entitled to make the election. It is an accepted practice in jurisdictional hearings that the Commission not embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[44] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance. If the Applicant can establish to the satisfaction of the Commission that he did not make the offensive phone call on 14 February 2013 then he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. Even if he did make the telephone call, it would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.

[45] That the Applicant’s case is not without merit or lacking in any substance weighs in favour of granting him a further period to make his application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[46] The parties agreed that this factor is not relevant. 46

Conclusion

[47] For the reasons set out above, on balance, the Commission is satisfied that there are exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application). An Order to this effect will be issued with this decision.

[48] The matter will now be referred to the Unfair Dismissals Case Management Team for further programming.

COMMISSIONER

Appearances:

Mr Malcolm Stephens representing himself.

Ms Anna Forsyth of counsel and Mr Tim Lange representing the Respondent.

Hearing details:

2013.

22 November and 12 December.

Melbourne.

 1 Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) FW Act.

 3   [2011] FWA 2720.

 4   Transcript, 22 November 2013, PN18

 5   Exhibit “A5”.

 6   Exhibit “A2”.

 7   Exhibit “A3”

 8   Exhibit “R4”.

 9   Exhibit “R3”.

 10   Exhibit “R4”, para 18(a) and also Affidavit of David van den Berg [Exhibit “R3”] para 8.

 11   Exhibit “R4”, para 18(c) and also Affidavit of David van den Berg [Exhibit “R3”] para 10.

 12   Transcript, 22 November 2013, PN61 and again at PN66.

 13   Transcript, 22 November 2013, PN67.

 14   Affidavit of David van den Berg [Exhibit “R3”] para 10.

 15   “MFI-1”

 16   Exhibit “R1”.

 17   “MFI -2”.

 18   “MFI-4”.

 19   “MFI-3”.

 20   “MFI-5”.

 21   “MFI-6”.

 22   “MFI-9”.

 23   “MFI-8”.

 24   Respondent’s Supplementary Submissions dated 3 December 2013 [Exhibit “R5”].

 25 [2011] 203 IR 1

 26 Above note at [13].

 27   Exhibit “R3”, Annexure “A”.

 28   Exhibit “R3”, para 3.

 29   Exhibit “R3”, Annexure “A”.

 30   Exhibit “R3”, para 4 and Annexure A

 31 Exhibit “R3”, para [5].

 32   Exhibit “A1”.

 33 Exhibit “R3” at [8].

 34 Exhibit “A2”. This is confirmed by Mr van den Berg, Exhibit “R3”, paragraph [9].

 35   Exhibit “A2”, page 1.

 36 Exhibit “A3”. This is confirmed by Mr van den Berg, Exhibit “R3”, paragraph [10].

 37   “MFI-1”

 38 Exhibit “R3”, para [8].

 39   Exhibit “A2”.

 40 Exhibit “R4”, para [37].

 41 Exhibit “R5”, para [28].

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

 43   Ibid.

 44   Transcript, 12 December 2013, PN305.

 45   Transcript, 12 December 2013, PN307 to 316.

 46   Transcript, 12 December 2013, PN328 and Exhibit “R4” , paragraph 37.

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