Mario Custo v Norstar Recycling Pty Ltd T/A Norstar Steel Recyclers
[2012] FWA 8278
•27 SEPTEMBER 2012
[2012] FWA 8278 |
|
DECISION |
Fair Work Act 2009
s.365—General protections
Mario Custo
v
Norstar Recycling Pty Ltd T/A Norstar Steel Recyclers
(C2012/3468)
COMMISSIONER GREGORY | MELBOURNE, 27 SEPTEMBER 2012 |
Jurisdictional objection - application lodged outside the 60 day time limit.
Introduction
[1] These proceedings arise from an application filed by Mr Mario Custo (the Applicant) under s.365 of the Fair Work Act 2009 (the Act). The Respondent, Norstar Recycling Pty Ltd (the Respondent), has in turn raised a jurisdictional objection to the application, namely it was lodged outside the 60 day time limit prescribed in s.366(1) of the Act.
[2] The Applicant was dismissed from his employment on 20 January 2012. The s.365 application was lodged on 18 April 2012, 89 days after his dismissal and 29 days after the expiry of the 60 day time limit. However, s.366(1)(b) provides Fair Work Australia with the discretion to extend the period for lodging an application made under s.365. This decision accordingly deals with the issue of whether the Applicant should be allowed an extension of time.
[3] The Applicant appeared on his own behalf. It was explained to him that the Tribunal in the present proceedings was only concerned with the issue of whether it is appropriate to allow an extension of time to lodge his application 1. The Respondent was represented by Mr Gary Katz of Meerkin and Apel.
The Facts
[4] The Applicant was terminated on 20 January 2012. However, he initially stated he was only made aware of this situation when, in his words, “I received the letter the 2nd 2”. In cross-examination he confirmed the letter he received on 2 February 2012 was in fact the Centrelink Employment Separation Certificate (Separation Certificate). The Applicant stated he was concerned about the reasons for termination contained on the Separation Certificate. He subsequently had discussions with his union and with Fair Work Australia about taking action in response. He also stated he was suffering from depression and anxiety, although he did not provide any additional medical evidence. However, he did indicate in cross-examination he saw his psychologist “. . . every couple of weeks.3” The s.365 application was subsequently filed on 18 April 2012. The Applicant did not provide any further evidence to support an extension of time being granted.
[5] In cross-examination the Applicant confirmed he received a termination letter from his former employer on 23 January 2012. It was sent to him by express post. He also indicated he had the application forms he received from Fair Work Australia for two or three weeks before completing and filing them. He indicated he suffered from depression and “. . . sometimes I don’t feel like doing nothing 4”. The Applicant also confirmed he contacted the Respondent’s Managing Director, Mr Paul Sailah, on two occasions following his termination to discuss a possible financial settlement. He also made a complaint to WorkSafe in March 2011 in regard to his former employer. However, he denied he only decided to pursue his current application after WorkSafe indicated it would not be taking action in regard to his complaint. He also stated he had received legal advice prior to his termination about a WorkCover claim, but had not sought further legal advice about his termination of employment.
[6] The Form 8A filed in the proceedings by the Respondent attached copies of various correspondence. A letter dated 2 December 2011 from the Respondent to the Applicant indicated, in part, the Applicant had been absent from work on a total incapacity basis since 16 March 2011. It also foreshadowed the Applicant would be considered to have resigned or abandoned his employment if further contact was not received. The Respondent’s letter dated 20 January 2012 terminating the Applicant’s employment, and sent to him by express post, was also contained in those attachments.
Legislation and law to be applied
[7] Section 366(1)(a) of the Fair Work Act requires an application under s.365 to be made within 60 days after the dismissal took effect or within such further period as the Tribunal allows. Section 366(2) sets out the considerations to be taken into account in this exercise of the Tribunal’s discretion. s. 366(2) states as follows:
“366(2) FWA may allow a further period if FWA 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.
[8] The principles concerning what constitute “exceptional circumstances” are well established. The Respondent referred in its submissions to the decision of a Full Bench of Fair Work Australia in Nulty v. Blue Star Group Pty Ltd 5[Nulty]. The Full Bench was also dealing with an extension of time application under s.365 in that matter. It indicated at paragraphs [13] - [15] of its decision:
“[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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought to be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 6”
[9] The Respondent also referred to the decision in Patrick Morgan Mc Connell v. A and PM Fornataro T/A Tony’s Plumbing Service 7 in regard to the issue of representative error, although it was not clear from the Applicant’s submissions and evidence whether this was attributed to the cause of the delay in lodging. At [35] of the decision the majority judgement stated:
“Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:
‘(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. 8” [footnotes deleted]
[10] The Respondent also referred to the decision of Commissioner Simpson in Mr Dominic Burke v Department of Agriculture, Fisheries and Forestry - Australian Quarantine Inspection Service 9 concerning advice provided by staff from Fair Work Australia. In that matter Commissioner Simpson stated at paragraph 27:
“For similar reasons in this matter as were determined in the Mc Connell the applicant cannot rely on what he alleges was said by the FWA staff (who were never identified by the applicant) to justify an extension on the basis that he was advised he could make an unfair dismissal application but that he was not advised that he could make a general protections claim. . . . 10”
[11] However, again it is not clear from the Applicant’s evidence and submissions that reliance on advice from staff at Fair Work Australia contributed to the delay in lodging the application.
[12] In the context of the present matter I also make reference to two further decision of this Tribunal. Both deal with extension of time applications made in regard to s.394 applications. However, the considerations the Tribunal must take into account in s.394(3) are similar to those contained in s.366(2) and the decisions are relevant the context of the present considerations. In Patrick Dyer v Aarya Alliance Pty Ltd T/A Mona Lisa Cafe Bar Restaurant 11 Senior Deputy President Hamberger dealt with the circumstances of an applicant who was dismissed from his employment and then made various enquiries to attempt to ascertain what avenues of redress, if any, he might have. The Senior Deputy President indicated at paragraph [14]:
“Any suggestion that ignorance of the law relating to unfair dismissal can constitute exceptional circumstances should be treated with caution. For an ordinary layperson to have limited knowledge of the legal remedies that are available to them following the termination of their employment is neither unusual nor uncommon, rather (perhaps sadly) it is a situation that is quite frequently encountered. The fact that Mr Dyer was unaware of his rights in respect of his termination of employment in these circumstances is not exceptional. 12”
[13] In Ms Susan Rose v BMD Constructions Pty Ltd 13Commissioner Roe was dealing with a situation in which he found the applicant was ignorant of the relevant time limits. The applicant had also provided a medical certificate stating her dismissal had produced anxiety and depression. Commissioner Roe indicated in response at paragraph [9] of the decision:
“. . . This is not strong evidence of incapacity to act during the two week period immediately following the dismissal. 14”
[14] He continued to state at paragraph [11]:
“Ignorance of the 14 day time limit for the making of an unfair dismissal application does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time. 15”
[15] As indicated, s.366(2) requires consideration by Fair Work Australia of each of the matters set out in (a) to (e). The decision in Nulty also confirms that “exceptional circumstances” might be found to exist because of a single factor or because of a combination of factors. I accordingly now turn to deal with the circumstances involved in this matter, and the respective submissions of the parties, by reference to the considerations in s.366(2) that I must have regard to.
(a) The reason for the delay
[16] The Applicant provided a variety of explanations for the delay in lodging the application. He was terminated on 20 January 2012 and first suggested he only became aware of that situation when he received the Separation Certificate from his former employer thirteen days later. However, in cross-examination he subsequently agreed he received a letter of termination on 23 January 2012, sent by express post. He also indicated he was ignorant of the law. He had contacted Fair Work Australia and was given the relevant application forms, however, because of factors including depression and anxiety he had taken some time to then complete and file the application.
[17] The Respondent submits the Applicant had been “forum shopping” after being terminated and only lodged his application when other avenues of redress had proven fruitless. He had contacted his former employer directly on two occasions in an attempt to settle the matter. He had lodged a complaint with WorkSafe, who had investigated the complaint but then indicated no further action would be taken. He had made contact with his union. The Respondent also noted the Applicant had not provided any medical evidence of incapacity. In its submission the Applicant has not provided an explanation for the delay that would fall within the exceptional circumstances contemplated by s.366(2).
[18] I am also not satisfied the reasons advanced by the Applicant for the delay in lodging constitute exceptional circumstances, particularly given the extended time frame established by the Parliament for lodging applications under s.365. The Applicant has unfortunately been unable to work due to total incapacity since March of last year. I also accept he is ignorant of the law, although I have already made reference to the decisions of Senior Deputy President Hamberger and Commissioner Roe in regard to the relevance of this consideration. The Applicant had also obtained legal advice previously about his WorkCover claim. He indicated he is a union member. Both avenues could have assisted in providing him with advice about his termination. Nothing that can be described as “exceptional circumstances” definitively stood in the way or prevented him from lodging an application within the prescribed time period.
(b) Any action taken by the person to dispute the dismissal
[19] As indicated the Applicant did a number of things in response to his dismissal. He made contact with his union. On two occasions he made direct contact with the Managing Director of his former employer to try and settle the matter. He also made contact with Fair Work Australia to get an explanation about the options open to him. He also made a complaint to WorkSafe, although his motivation for doing so is not clear. He was clearly aware during the sixty day period following his dismissal that he had been terminated.
(c) Prejudice to the employer (including prejudice caused by the delay)
[20] The Respondent did not submit prejudice to the employer would result if an extension of time were granted. The only obvious prejudice would be the employer having to then respond to the s.365 application.
(d) The merits of the application
[21] The Respondent made limited submission about this consideration other than to indicate it had “neutral effect.” Given the evidence and submissions I am not in a position to make findings about what are clearly contested issues, although the Applicant did not make specific submissions about the exercise of a workplace right that had led to his termination. This Tribunal and its predecessor have considered how the respective merits of a matter should be considered when determining an application for an extension of time. In Kyvelos v. Champion Socks Pty Ltd 16 a Full Bench of the then Australian Industrial Relations Commission said:
“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement 17”.
[22] The Full Bench continued:
“. . . It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. . . . 18”
(e) Fairness as between the person and other persons in a like position
[23] No party made submissions about this consideration and it is of little relevance in the present matter. It can perhaps be suggested a person in a similar situation to the Applicant could have been expected in the same circumstances to have lodged an application within the 60 day time period.
[24] In conclusion I am not satisfied, based on the submissions and evidence and consideration of each of the matters contained in s.366(2), that exceptional circumstances exist to warrant an exercise of the discretion to provide a further period beyond sixty days to enable the Applicant to make an application pursuant to s.365. The application is accordingly dismissed.
COMMISSIONER
Appearances:
Mr M. Custo, on his own behalf.
Mr G. Katz, on behalf of the Respondent.
Hearing details:
Melbourne:
2012.
22 May.
1 Transcript PN21 to PN26.
2 Transcript PN60.
3 Transcript PN138.
4 Transcript PN132.
5 [2011] FWAFB 975, PR506750.
6 [2011] FWAFB 975, PR506750 [13] - [15].
7 [2011] FWAFB 466.
8 [2011] FWAFB 466 [35].
9 [2011] FWA 1386.
10 [2011] FWA 1386 at [27].
11 [2010] FWA 8895.
12 [2010] FWA 8895 at [14].
13 [2011] FWA 673.
14 [2011] FWA 673 at [9].
15 [2011] FWA 673 at [11].
16 T2421.
17 T2421 at [14].
18 T2421 at [14].
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