Matthew Steen v Penrith Rugby Leagues Club Ltd T/A Panthers Group

[2012] FWA 4210

[2012] FWA 4210

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Matthew Steen
v
Penrith Rugby Leagues Club Ltd T/A Panthers Group
(C2012/3353)

COMMISSIONER ROBERTS SYDNEY, 14 JUNE 2012

Application to deal with contraventions involving dismissal - extension of time for filing application.

[1] This decision concerns an application lodged by Mr Steen (the Applicant) pursuant to s.365 of the Fair Work Act 2009 (the Act) for Fair Work Australia to deal with alleged contraventions involving the termination of his employment by Penrith Rugby Leagues Club Limited T/A Panthers Group (the Company).

[2] Mr Steen’s application was filed by his solicitors, Breene & Breene, on 3 April 2012. It was stated in his application that the termination of employment took effect on 2 February 2012. This was disputed by the Company which maintains that the Applicant was notified of his dismissal on 1 February 2012 and the termination was effective from 1 February. If the Applicant’s alleged date of termination is accepted then the application was filed one day outside the 60 day time limit prescribed by the Act. If the Company’s submission is accepted then the application was lodged two days late. In both cases it would require me to consider whether to grant him an extension of time for filing. An extension of time was opposed by the Company.

[3] Mr Steen’s application for an extension of time came on for hearing before me in Sydney on 15 May 2012. Mr Steen was represented by Mr D O’Sullivan of Counsel, with Mr J Tipple, solicitor. The Company was represented by Ms E Nicolle of the Registered Clubs Association of NSW (the RCA). The Applicant did not personally attend the hearing. Mr Tipple gave sworn evidence for the Applicant and submitted a witness statement 1. Mr P Jones, People and Values Manager, gave sworn evidence for the Company and also submitted a witness statement2.

Legislative Framework

[4] Section 366 of the Act provides:

“(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(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.”

Background

[5] Mr Steen became a full time employee of the Company on or about 1 September 2010 after an earlier period as a contractor. His employment was terminated by the Company on 1 February 2012 (see paragraph 12 below). The termination of Mr Steen’s employment followed an investigation by the Company after it “had received a complaint from a staff member that you made inappropriate and derogatory comments about her. We note that you deny making the comments as alleged. However based on our investigation, which included obtaining a witness statement and reviewing surveillance footage we believe that you had made these comments. After taking into account the serious nature of the allegations and your prior history of bullying and harassing behaviour, the Club decided that in the interests of the wellbeing of our staff, your employment could not be maintained.” 3

Evidence

Mr Tipple

[6] It was Mr Tipple’s sworn evidence that Mr Steen first contacted his firm on 6 February 2012 and subsequently instructed him to make an application to FWA on 15 February. It was further submitted that Mr Tipple took the view at the time that the effective date of termination was 2 February. Mr Tipple then made an entry of “Steen - FWA app’n due” in his work diary for 3 April 2012. It was submitted that in believing 3 April was that the last day for filing the application, he did not use a calendar and did not take into account that 2012 is a leap year and therefore has 29 days in February.

[7] In cross-examination, Mr Tipple said that he had limited experience in this jurisdiction and maintained his evidence concerning his diary entry and his lack of knowledge as to the leap year implications.

Mr Jones

[8] Mr Jones’ sworn evidence concerns events leading up to the termination of Mr Steen’s employment. As to the reasons for the termination, Mr Jones said:

“The allegations against Mr Steen, that lead to his termination of employment included that he had made derogatory comments to customers regarding an employee. The comments alluded that the employee was handicapped. These comments were heard by another staff member. The factors influencing the decision to terminate Mr Steen’s employment included:

a. He made derogatory comments to / regarding a fellow employee to customers;

b. Other staff had heard him make these comments;

c. Customers had reportedly heard these comments;

d. He threw an object at the complainant, which in our view reinforced her claims that she was subjected to bullying;

e. He had a history of bullying behaviour;

f. The incident was captured on CCTV and it reflects the account of the complainant and the witness;

g. He failed to acknowledge the comments, despite evidence that he had made them and there was no remorse expressed.”

[9] Mr Jones went on to say that, at the meeting on 1 February 2012, Mr Steen made comments to the effect: “that he was going to seek advice as to pursuing an unfair dismissal claim.” Mr Jones said that: “From the time Mr Steen’s employment was terminated, I don’t recall having any contact from him. Other than responding to an email he sent stating that he had received his notice of termination letter, returning company property and wanting to know when his final pay would be released.”

Submissions

[10] Both parties made written 4 and oral submissions. I have paid regard to those submissions and to relevant citations of case law.

When the Applicant first became aware of the dismissal

[11] On balance, I find that Mr Steen first became aware of the ending of the employment relationship on 1 February 2012 by way of a verbal notification which was then confirmed in writing on 2 February 2012. This makes the application two days out of time. This finding, in itself, has not been determinative in my decision making.

Reason for the delay

[12] The Applicant’s submission relies on representative error as the sole reason for the delay.

Action taken by the Applicant to dispute the dismissal

[13] I am satisfied that Mr Steen took prompt action to obtain legal advice soon after the termination of his employment and then relied on his solicitors to follow his instructions to file his application for relief within the 60 day time limit. It is clear on the evidence of Mr Jones that the Company was forewarned that Mr Steen intended to pursue a claim disputing his termination of employment. Apart from that, neither Mr Steen nor his legal representatives appear to have contacted the Company after the dismissal took effect.

Prejudice to the Respondent

[14] The Company claims that it would be prejudiced if the application to extend time was allowed. I am not convinced that the Company would suffer significant prejudice due to the short delay of two days in filing, but that in itself is not a factor which necessarily militates in favour of the granting of an extension of time.

Merits of the application

[15] Merit issues are strongly contested between the parties. Without relevant sworn evidence I am unable to reach a concluded view as to merit except to observe that the Applicant’s case is not obviously totally without merit. In any event, an application for an extension of time does not require a detail assessment of the merits of the substantive application.

Fairness between the Applicant and other persons in a similar position

[16] In the case before, there does not appear to be anything which makes this consideration relevant and it has therefore been neutral in my decision making.

Conclusion

[17] Section 394 of the Act requires me when considering whether to grant an extension of time to be “satisfied that there are exceptional circumstances …” In this application, Mr Steen relies on representative error by Mr Tipple constituting such exceptional circumstances.

[18] The concept of ‘exceptional circumstances’ was considered by Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd 5. In that decision, his Honour considered the ordinary English meaning of the word ‘exceptional’6. In so doing, he referred to the decision of Commissioner Whelan in Parker v Department of Human Services7where the Commissioner said:

“Branson J in a decision of the Full Court of the Federal Court 8 described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision also noted that the expression had been considered by the courts on numerous occasions:

Although the expression ‘exceptional circumstances’ is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham Cornwall CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.  9”

[19] The Concise Oxford Dictionary 10 relevantly defines ‘exceptional’ as “forming an exception; unusual…” In my view, the word ‘exceptional’ does not carry with it connotations of meaning approximate to ‘extraordinary’ or ‘extreme’.11

[20] In Clark and Ringwood Private Hospital 12the Full Bench held that the question of whether an error by an applicant’s representative constitutes an explanation for delay is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted. In this case, it appears clear that representative error is the sole factor relied upon to explain the late lodgement of Mr Steen’s application. I have also paid regard to the other factors which I am required to consider.

[21] Mr Steen was diligent in pursuing his case with his solicitors and was not the cause of any delay. He was entitled to rely on the advice of his solicitors. 13 Mr Tipple’s lack of diligence does not reflect well on him but its consequences should not be visited upon Mr Steen.

[22] All in all, I accept the evidence of Mr Tipple as to the sequence of his actions which led to late lodgement. Mr Tipple’s admitted errors are sufficient in my view to constitute exceptional circumstances making an extension of time just and equitable. I therefore grant Mr Steen an extension of time and the time for lodgement of his application is extended until the actual date of filing. Mr Steen’s application will now be referred to another Member of the Tribunal for conciliation.

COMMISSIONER

Appearances:

D O’Sullivan of Counsel, with J Tipple, solicitor, for Matthew Steen.

E Nicolle of Registered Clubs Association of NSW for Penrith Rugby Leagues Club Ltd T/A Panthers Group.

Hearing details:

2012.
Sydney:
15 May.

 1   Exhibit Steen 1.

 2   Exhibit Panthers 3.

 3   Attachment F to Exhibit Steen 2.

 4   Exhibits Steen 3 and Panthers 1.

 5   [2010] FWA 1394.

 6   Ibid, at paragraph 28.

 7   [2009] FWA 1638.

 8 Hewlett Packard Aust Pty Ltd v GE Capital Finance Pty Ltd (2003) FCAFC 256.

 9   Maan v Minister for Immigration and Citizenship (2009) FACFC 180.

 10   Oxford University Press, Oxford, 1982.

 11   Transcript PNs111-112.

 12   Print P5279, 22 September 1997.

 13   See also the decisions in Cruz v Australia Post Corporation [2008] AIRCFB 452 and El Arja v Rail Corporation New South Wales [2009] AIRCFB 809.

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