Mark McLaren v Valspar (WPC) Pty Ltd

[2014] FWC 3767

[2014] FWC 3767

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark McLaren
v
Valspar (WPC) Pty Ltd
(U2014/7226)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 6 JUNE 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 14 May 2014 Mr McLaren lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief in relation to the termination of his employment with Valspar (WSC) Pty Ltd (Valspar).

[1] Mr McLaren’s application was lodged, on his behalf, by his lawyer, Mr Palios. In that application Mr Palios advised that the dismissal took effect on or about 27 March 2014. Mr Palios provided the following information in relation to the late lodgement of the application.

“1) I only recently received legal advice concerning my legal rights.

2) The prejudice to me should the extension of time not be granted is considerable. No prejudice has been caused to the employer.”  1

[2] The application was referred to me for consideration. On 15 May 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 4 June 2014. Mr McLaren was required to provide a witness statement and a copy of any document relied upon, by 28 May 2014.

[3] An Employer’s Response (Form F3) to the application was received on 4 June 2014. That response confirmed that Valspar objected to an extension of time.

[4] Mr McLaren did not comply with the requirement to provide material to the Fair Work Commission (FWC) and to Valspar by 28 May 2014. On 2 June 2014 my Associate received a request from Mr Palios, representing Mr McLaren, in the following terms:

“...

As discussed, Mr Palios overlooked that a statement was to be provided by the Applicant in relation to this matter listed for Wednesday 4 June 2014 for an extension of time telephone conference.

We therefore ask that the matter be adjourned for approximately 1 week (or as close thereto) to enable us to obtain this statement.

....”

[5] I refused this request. Subsequently, advice from Mr McLaren was received on 3 June 2014. In this advice Mr McLaren explained that he had lodged a workers compensation claim relative to psychological injuries in July 2013. This claim was accepted in October 2013. On or about 3 March 2014 Mr McLaren was given advice, dated 27 February 2013, which confirmed the termination of his employment to take effect on 27 March 2013. Mr McLaren then detailed the actions that he subsequently took. In his statement, Mr McLaren refers to various employees of Valspar whom he apparently holds responsible for his psychological health as the "perpetrators". He summarised the reasons for the delay in the following terms:

“28. .... the delay in commencing these proceedings stems from the following:-

a. I did not receive my termination letter until about 3 March 2014;

b. I had not received legal advice and was unaware of my rights;

c. I initially did not know whether I could return to work as I thought the perpetrators of the harassment and bullying would not leave the workplace;

d. In April 2014, once I discovered that the perpetrators had received TVS packages from Valspar and that they were no longer in employment there, I wanted to return to my workplace;

e. Valspar failed to disclose to me that the perpetrators were no longer employed there meaning it would have been reasonable for me to attempt a return to work there rather than terminating my employment;

f. If I had known about the TVS payments I would have received advice and issued the unfair dismissal application prior to the expiration of 28 day period.” 2

[6] The extension of time issue was considered through a telephone conference on 4 June 2014. A sound file record of this conference was kept. Mr McLaren participated in this conference and was represented by Mr Curnow, of counsel pursuant to a grant of permission made under s.596(2)(a) of the FW Act. I note that whilst two other lawyers from Palios, Meegan and Nicholson Lawyers were present in this conference, Mr Palios was not present. Valspar was represented by Ms Cole, of counsel pursuant to a grant of permission made under s.596(2) of the FW Act. The Valspar Group Human Resources Manager, Ms Hoffmann also participated in this conference.

[7] I have considered the extension of time issue on all of the material before me and the information provided at this conference.

[8] The information provided to the parties included a copy of s.394 and advice of the factors I am required to take into account in considering this matter.

[9] Section 394 states:

“394 Application for unfair dismissal remedy

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

Note 1: Division 4 sets out when the FWC 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 21 days after the dismissal took effect; or

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

(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.”

[10] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. I am satisfied that the termination of Mr McLaren’s employment took effect on 27 March 2014. The application was lodged some 27 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mr McLaren’s circumstances can be regarded as exceptional for the purposes of this subsection.

[11] The advice provided at this conference to explain the actions taken by Mr McLaren and various of his lawyers was, in a number of respects, inconsistent and somewhat unsatisfactory. At times, it bordered on obfuscation. Nevertheless, I have set out below my understanding of the information provided to me and the basis upon which Mr McLaren seeks an extension of time. Mr Curnow explained this delay on the basis that a notice of dispute with respect to a determination made by the WorkCover Agent, Gallagher Bassett, that no suitable duties were available within Valspar was lodged in the Workers Compensation Tribunal on 20 March 2014. Mr Curnow submitted that this dispute notification, which has not yet been concluded, had the potential to result in the reinstatement of Mr McLaren's employment. Mr Curnow submitted that this Workers Compensation Tribunal action explained the delay in the lodgement of the application.

[12] Mr McLaren’s position was, at best, unclear. This uncertainty extended to Mr McLaren's knowledge of the application itself. Mr McLaren confirmed that he accessed legal advice about the impending termination of his employment on 19 March 2014. Mr McLaren was not able to definitively confirm to me the reason for the delay. Notwithstanding apparent contrary advice provided by Mr Curnow, Mr McLaren advised that it was only after he understood, in April, that certain other employees were no longer employed by Valspar, that he sought reinstatement.

[13] I have concluded that Mr McLaren obtained advice and subsequent representation by Mr Palios before his dismissal took effect and that the application lodged in the Workers Compensation Tribunal reflected a deliberate strategy on the part of his legal representatives. This strategy may have been changed as a result of the Workers Compensation Tribunal proceedings or as a consequence of Mr McLaren's wish to pursue reinstatement, or for some other reason. In the absence of definitive advice that establishes the reason for the delay I am not satisfied that a satisfactory reason for the delay exists. The information Mr McLaren and his lawyers have provided does not adequately explain why the application could not have been lodged within time.

[14] I have considered whether the delay should be properly characterised as representative error on the basis that Mr McLaren's lawyer should have advised him about the capacity to make the application when they met on 19 March 2014. The information provided by Mr McLaren does not permit me to reach that conclusion. Further, it appears to me that Mr McLaren's lawyers adopted a particular approach based on action taken in the Workers Compensation Tribunal. Mr Curnow has not conceded that this approach was adopted in error and I can only conclude that the actions taken by Mr McLaren's various lawyers reflected a deliberate strategy rather than an oversight or administrative error.

[15] On the information before me, I am satisfied that Mr McLaren was aware that the termination of employment took effect on 27 March 2014 well before this date.

[16] It is clear that Mr McLaren took action to dispute the termination of his employment in the Workers Compensation Tribunal. The progress of this matter and the potential for that action to address Mr McLaren's concerns about the termination of his employment are matters most appropriately addressed between Mr McLaren and his lawyers but I have noted Mr Curnow’s advice to me that this action in the Workers Compensation Tribunal remains live and has the potential to result in a reinstatement.

[17] I have noted the Valspar advice that it does not argue that the granting of an extension of time would represent prejudice to it. Notwithstanding this, the mere absence of prejudice does not represent a basis upon which I can found an extension of time.

[18] On the information before me I am satisfied that the termination of Mr McLaren’s employment was related to his capacity to return to work following a compensable injury. The circumstances under which Mr McLaren was dismissed are disputed and the information before me does not enable any form of preliminary assessment of the merits of the application. I have consequently regarded this as a neutral factor in the consideration of the extension of time issue.

[19] Considerations of fairness relative to persons in similar circumstances to Mr McLaren’s do not support an extension of time.

Conclusion

[20] For the reasons I have set out above, Mr McLaren’s circumstances do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR551527) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by Telephone):

M Curnow of counsel for the applicant.

M Cole of counsel for the respondent.

Hearing (Conference) details:

2014.

Adelaide:

June 4.

 1   Form F2, para 1.4

 2   Statement of Applicant, 3 June 2014

Printed by authority of the Commonwealth Government Printer

<Price code C, PR551525>