Mark Dickenson v Securency International Pty Ltd

[2013] FWC 753

Note: An appeal pursuant to s.604 (C2013/3172) was lodged against this decision.

[2013] FWC 753

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Mark Dickenson
v
Securency International Pty Ltd
(C2013/2683)

COMMISSIONER GOOLEY MELBOURNE, 4 FEBRUARY 2013

Application to deal with contraventions involving dismissal – extension of time.

[1] On 10 January 2013, Mr Mark Dickenson (the Applicant) made a general protections application pursuant to s.365 of the Fair Work Act 2009 (the FW Act).

[2] The Applicant’s employment with Securency International Pty Ltd (the Respondent) ended on 30 July 2012. The application was therefore not made within 60 days of the date of the dismissal.

[3] The Respondent objected to the application being referred to a conference as it was out of time. The application was listed for an extension of time hearing on 29 January 2013.

Background

[4] On 1 October 2012 the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (the AMWU) lodged a s.365 application (the first application). That application asserted that the Applicant had been dismissed on 2 August 2012. 1 In its response to the first application on 11 October 2012, the Respondent asserted that the termination took effect on 30 July 2012 and noted that the Respondent may pursue a jurisdictional objection in relation to the application being out of time after the conference before the then Fair Work Australia was conducted.

[5] A conference was scheduled for 18 October 2012 but for reasons which were not explained at the hearing the AMWU discontinued the application on 17 October 2012. The Applicant gave evidence that he was not advised of this prior to the matter being discontinued and Mr Piccolo, an organiser with the AMWU who was the Applicant’s organiser, could not recall if the Applicant was told before or after the discontinuance was filed. No explanation was given about why the AMWU decided to discontinue the first application.

[6] It was Mr Piccolo’s evidence that prior to the AMWU deciding to lodge the first application the Applicant had been given a referral to the AMWU’s preferred lawyers. There was no evidence that the Applicant availed himself of the opportunity.

[7] It was the Applicant’s evidence that he gave the AMWU his documentation which included his letter of termination at least one month prior to the 60 day time limit but for unexplained reasons the first application was lodged outside the 60 day limit.

[8] It was the Applicant’s evidence that he did not know at the time the AMWU discontinued the first application that he could lodge an application in his own name and seek an extension of time.

[9] However it is clear from an email between the Applicant and Mr Piccolo 2 that prior to the discontinuance the Applicant was aware that there was an issue about the first application being filed out of time and in that email he said “if the hearing doesn’t get off the ground I can run an indirect discrimination case.”3 On 18 October 2012 the Applicant sent an email to Ms Cassin, National Secretary of the AMWU Printing Division, in which he referred to a conversation with Mr Piccolo about his claim the previous day. In that email he noted that the mislaying of his documents had led to his application being lodged out of time. He again made reference to making an indirect discrimination claim. He stated he wished to lodge his own complaint with the Fair Work Ombudsman. He also advised that he had lodged complaints with ASIC, the EPA and WorkSafe. On the same day the Applicant left a telephone message with the Respondent saying he was making a complaint to the Fair Work Ombudsman.

[10] The Applicant gave evidence that he made a complaint to the Fair Work Ombudsman however no details of that complaint were provided. Sometime after 18 October 2012 the Applicant was advised by the Fair Work Ombudsman to contact Fair Work Australia. On 20 December 2012 the Applicant sent an email to Commissioner Bissett’s chambers in which he advised that he wished to appeal and to represent his own interests. 4

[11] On 21 December 2012 Fair Work Australia advised the Applicant that he could either seek to have the first application reinstated or lodge a new application in his own name. He was advised that Fair Work Australia was able to extend the time for lodgement if there were exceptional circumstances. 5

[12] On 24 December 2012 the Applicant sent Commissioner Bissett’s chambers an email in which he advised that he wanted the AMWU application heard on the grounds that the AMWU did not consult him before it discontinued the first application. The Applicant was advised on the same day that he could not have the matter called back on as he was not the applicant in that matter. 6

[13] The Applicant did not lodge his current application until 10 January 2013. Despite being aware that the application was not lodged within the 60 day time limit he did not lodge an application for an extension of time until 22 January 2013.

[14] Section 366(2) of the FW Act provides as follows:

FWC may allow a further period for the application to be made by a person under subsection (1) if FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay;

[15] The Applicant submitted that he did not know that he could make an application in his own name after the AMWU discontinued the first application. Further it was his evidence that once he was alerted to this fact he took time to research the law in relation to the claim. The Applicant contended that this took time as he was not a lawyer and the law is complicated.

[16] The Applicant submitted that the AMWU’s conduct in lodging the first application late should be taken into account. The Applicant further submitted that regard should be had to the decision of the AMWU to discontinue the first application without advising him.

[17] While this does in part explain the delay for the first 60 days it does not in any way explain the subsequent delay.

[18] It was the Applicant’s evidence that until 21 December 2012 he did not know he could make a new application and apply for an extension of time.

[19] The Respondent submitted that the Applicant’s evidence in this regard was inconsistent. In an email to the Respondent’s lawyers on 18 January 2013 he stated that he had been advised by the Fair Work Ombudsman that he could make an application in his own name. This occurred prior to his contact with Commissioner Bissett’s chambers. In cross examination the Applicant gave evidence that his statement in his email was incorrect.

[20] From 17 October 2012 the Applicant was aware of the 60 day time limit for making an application. It appears that the Applicant decided in December 2012 when he was advised that he could make an application in his own name that further delay would not be an issue because he was already outside of time for lodging an application.

[21] The Applicant was provided with an opportunity to obtain legal advice in relation to his claim prior to the first application being lodged. It was Mr Piccolo’s evidence that the AMWU initially declined to lodge an application but he could not recall if the Applicant was told that he could lodge an application in his own name. However he was given a referral to the AMWU’s preferred lawyers.

[22] There is no evidence that the Applicant sought legal advice in relation to his claim. Had he done so at this time he would have been informed that he could make an application himself.

[23] There is no evidence before the Commission about the nature of the complaint or inquiry the Applicant made to the Fair Work Ombudsman or any advice provided.

[24] There is no evidence that between 17 October 2012 and 21 December 2012 the Applicant took any steps to make a general protections application. He gave evidence that he spoke to the Fair Work Ombudsman but he knew that they were not going to make an application on his behalf. He also knew that there was a time limit for making an application.

[25] Even if I accepted that the Applicant only became aware of his right to make an application in his own name and apply for an extension of time on 21 December 2012 the Applicant then took 20 days to file the application. I do not consider that his explanation for this delay is satisfactory. Knowing of the time constraints he should have acted promptly in lodging his application and he failed to do so.

(b) whether the person first became aware of the dismissal after it had taken effect;

[26] The Applicant was aware of the dismissal on 30 July 2012.

(c) any action taken by the person to dispute the dismissal;

[27] The Applicant disputed his dismissal and the first application was lodged on 1 October 2012. The Respondent was not aware in the period from 18 October 2012 until this application was made that the Applicant was still pursuing this claim.

(d) prejudice to the employer (including prejudice caused by the delay);

[28] The Respondent submitted that they will be prejudiced as the Applicant is now pursuing an alternative avenue for redress in respect of the same factual issues. The Respondent was advised by WorkSafe on 23 January 2013 that the Applicant had made a claim that he had been discriminated against under the Occupational Health and Safety Act 2004 in respect of the same facts alleged in the Applicant’s adverse action claim. No other prejudice is claimed. The complaint lodged by the Applicant to WorkSafe was not produced. The Applicant’s evidence about this complaint was unhelpful. However if the Respondent is correct in its description then, it could, when it has more detail about the nature of the complaint raise a jurisdictional objection pursuant to Part 6-1 of the FW Act.

(e) the merits of the application;

[29] I am not able to make any assessment of the merits of the claim as there are factual disputes between the parties that have not been tested.

(f) fairness as between the person and other persons in a similar position.

[30] No submissions were made about this criterion.

Conclusion

[31] The Applicant was at all times aware of the time limits. The Applicant had the opportunity to obtain independent legal advice about his claim prior to the 60 day time limit expiring and before the AMWU had advised that it would lodge the claim on the Applicant’s behalf.

[32] Whatever the rights and wrongs of the decision of the AMWU to discontinue the first application from that date the Applicant was able to make an application albeit he would have needed to make an application for an extension of time. Had the Applicant made inquires earlier of Fair Work Australia he would have received the advice he received in December 2012.

[33] This is not a situation where the Applicant was ignorant of the provisions of the FW Act and its time limits. Even if he was unaware of his right to make an application and an application for an extension of time until 21 December 2012 he did not then promptly file such an application.

[34] In all the circumstances I am not satisfied that there are exceptional circumstances warranting an extension of time, and the application is dismissed.

COMMISSIONER

Appearances:

M Dickenson on his own behalf.

S Ralph with S Trifonidis for Securency International Pty Ltd.

Hearing details:

2013.

Melbourne:

January 29.

 1 Section 365(a) of the FW Act permits an industrial association to make an application alleging a member has been dismissed in contravention of Part 3-1 of the FW Act.

 2   Exhibit R3

 3   Ibid

 4   Attachment to Applicant’s extension of time application.

 5   Ibid

 6   Ibid

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