Michael Brown v Linfox Armaguard Pty Ltd

[2010] FWA 1521

[2010] FWA 1521

FAIR WORK AUSTRALIA

DECISION

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

Michael Brown
v
Linfox Armaguard Pty Ltd
(U2009/14493)

COMMISSIONER LARKIN SYDNEY, 8 APRIL 2010

Termination of employment – extension of time – further period for the application to be made allowed.

[1] On 10 December 2009 Mr Brown (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that his termination of employment on 18 November 2009, for the reason of misconduct, by Linfox Armaguard Pty Ltd (the respondent) was unfair.

[2] The applicant’s application was lodged eight (8) days outside of the prescribed time limit required by paragraph (a) of ss.394 (2) of the Act. The respondent objected to the time limit being extended and objected to conciliation prior to the out of time matter being determined.

[3] The extension of time matter was listed for hearing in Orange, New South Wales, for 9 March 2010. The parties were directed to file an outline of submissions and any material that they sought to rely upon. On 2 February 2010 Ms Thompson, Boyd & Longhurst Solicitors, representing the applicant, sought that the matter be determined on the material filed. On 5 March 2010 Ms Thompson forwarded an email to Fair Work Australia advising that the respondent did not object to the matter being decided on the papers and that the applicant would not be filing material in reply to the respondent’s material filed. By email of the same date, Mr Field, Workplace Relations Manager, confirmed Ms Thompson’s advice on behalf of the respondent.

[4] In the circumstances, I granted the applicant’s request. In a determination of this matter I have had regard, where relevant to the question for determination, to the submissions filed on behalf of the applicant on 2 February 2010, which included a statement made by Mr Brown the applicant with attachments. I have also had regard, where relevant, to the submissions and attachments filed on behalf of the respondent on 4 March 2010, which included statements of Mr Stivens, Branch Manager Orange Depot and Mr Woodward, Eastern Region Operations Manager.

CONSIDERATIONS

[5] Subsection 394(2) and (3) state:

“(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

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

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

[6] The decision I must make in the matter before me is whether I should exercise my discretion and allow a further period for the applicant’s application under s.394 of the Act to be made. In an exercise of the discretion I must be satisfied that there are exceptional circumstances taking into account paragraphs (a) to (f) of ss.394 (3) of the Act.

[7] The applicant was employed by the respondent at its Orange depot as a road crew employee. The respondent stated the following reasons for the applicant’s termination:

“The Applicant was dismissed for failure to follow Armaguard policy and procedure resulting in a changemaster tin containing $9,910.00 being left at Coles Parkes. Additionally the Applicant was dismissed for making frivolous and vexatious allegations against his Branch Manager which he subsequently admitted were false.” 1

[8] The applicant’s employment with the respondent was terminated on Wednesday 18 November 2009. The applicant’s application was filed with Fair Work Australia on Thursday 10 December 2009. To comply with the legislative requirements, the application should have been filed by Wednesday 2 December 2009. The application is eight days outside of the prescribed time.

[9] The applicant stated:

“I state that I had made every effort to get proper advice and representation at the very earliest opportunity in regard to this matter. The Transport Workers Union led me to believe that I would be represented by them and I fully expected that an application would be filed on my behalf by them. When it became clear that the union would not represent me I made every effort to secure legal advice and representation at the earliest opportunity. I state that I believe my case has merit and I seek that my application for an extension of time is granted.” 2

[10] In his statement, the applicant outlined the reason for the delay in making his application to Fair Work Australia. Those reasons, in summary, follow:

• On the day of his termination (Wednesday 18 November 2009) he telephoned the Transport Workers’ Union (TWU) and spoke to an industrial officer, Mr Casey, who took the details of his termination and advised him that he, Mr Casey, would contact him on Friday 20 November 2009.



• The applicant was of the belief that he was a financial member of the TWU and, therefore, could access their services to represent him in unfair dismissal proceedings.



• At 11.30am on Friday 20 November 2009 the applicant left a message on Mr Casey’s message bank. Mr Casey returned his call and advised that he, Mr Casey, was out of the office and would ring him back in a couple of hours. At 3.00pm on 20 November 2009 Mr Casey telephoned him and advised that his application had been filed and the matter would be heard at Orange Court at a date to be notified.



• The applicant telephoned Mr Casey at 10.02am on Monday 23 November 2009 as he had not heard anything and Mr Casey advised him that he, Mr Casey, would chase it up and get back to him. At 3.50pm on 23 November 2009 the applicant spoke to Mr Casey who advised him that there was an issue with his union membership. Mr Casey advised that he was waiting to hear from the senior union delegate at the respondent company. The applicant telephoned Mr Casey at 4.13pm on 23 November 2009 and was advised that the TWU would not represent him because there was some disparity in relation to his financial status with the union.



• On Tuesday 24 November 2009 the applicant attended his grandfather’s funeral and was unable to further the matter on that day.



• On Wednesday 25 November 2009 the applicant telephoned the TWU customer service centre at 9.35am, 10.09am and 10.36am. The applicant spoke to Mr Layton in an attempt to sort out the issues with his membership. The applicant also spoke to Mr McKay. The applicant stated that at the end of the day on 25 November 2009 he realised that the TWU would not represent him and that he needed to get other legal advice.



• The applicant stated that the first appointment he could get with a solicitor was on Monday 30 November 2009. On 30 November 2009 the applicant met with a solicitor who forwarded correspondence, by facsimile, to the TWU “asking for their urgent advice as to whether I was a financial member of the union and why I was not being represented by them in my unfair dismissal”. 3



• On Friday 4 December 2009, 4 as the solicitor had not received a response from the TWU, she drafted the application for unfair dismissal and the applicant signed the application. The applicant stated that he believed that the application would be filed that day.

[11] The applicant’s application was signed by the applicant on Friday 4 December 2009. The application was posted to the Victorian office of Fair Work Australia on Monday 7 December 2009. The applicant’s application is date stamped as received by Fair Work Australia on 10 December 2009.

[12] The respondent disputes the applicant’s reason for the delay and submitted that the applicant could have contacted another law firm to obtain an earlier appointment than 30 November 2009. In his statement, Mr Stivens outlines discussion he had with the TWU delegate at the Orange depot in relation to the applicant’s financial status with the union. It was argued on behalf of the respondent that “the applicant knew that it was not certain the TWU would represent him at the earliest from the day of the termination given the information provided to Mr Stivens’ (sic) above and was aware of the possibility that the TWU would not represent him on 23 November 2009. In either case the applicant has (sic) sufficient time to file an application in time and any delay in filing the application is not the fault of representative error but the applicants (sic) own conduct”. 5

[13] The applicant did not file material in reply to Mr Stivens’ statement in relation to the conversation he said he had with the TWU site delegate concerning the applicant’s membership status with the TWU. While I accept Mr Stivens’ evidence on his discussion he does not give evidence that the TWU delegate had the same discussion with the applicant. Further, the TWU delegate did not provide a statement in the matter before me in relation to any discussion he had with the applicant in relation to the applicant’s union membership. There is no evidence before me disputing the applicant’s evidence on the chronology of events as he outlines in his statement. There is no evidence before me as to the applicant’s knowledge of a time limit in which to make his application. On the applicant’s evidence he pursued representation for his claim for unfair dismissal from 18 November 2009. The applicant spoke to a solicitor on 30 November 2009 and on 4 December 2009 the applicant signed an application for unfair dismissal. The covering letter to Fair Work Australia from the solicitor, dated 7 December 2009, clearly states that the solicitor understood that there was a 14 day timeframe in which to make the application. Notwithstanding that knowledge the application was forwarded by postal delivery and received by Fair Work Australia on Thursday 10 December 2009. It was submitted on behalf of the applicant that it was not his fault that his application was not filed by the due date of 2 December 2009. I accept that submission. I am persuaded that the delay in making the application was due to his representative’s error and not due to any error on the part of the applicant.

[14] The applicant was aware of his termination of employment in the meeting with the respondent’s representatives on 18 November 2009, which was followed with formal advice by letter dated 19 November 2009. There is no evidence before me that the applicant took any action, other than the filing of his application with Fair Work Australia, to dispute his dismissal with his employer. The respondent submitted that it first became aware that the applicant contested his termination of employment when the application for unfair dismissal was received by the respondent.

[15] I am not persuaded by the respondent’s argument of prejudice. Whether or not the application’s position with the respondent has been filled and/or whether the Orange depot could financially sustain an additional full time employee is not relevant to the matter before me. The submission may be relevant in any substantive hearing of the applicant’s unfair dismissal proceedings but not to the question of extension of time to make the application. I am not persuaded that an extension of time in this matter, given the fact that the application was made eight days outside the time limit, would prejudice the employer.

[16] On the issue of the merit of the application, the letter of termination outlined the reasons as follows:

“Dear Michael

RE: Termination of employment with Linfox Armaguard

I refer to the discussion on Wednesday 18 November 2009 between myself, Cassandra Hann, Workplace Relations Manager, yourself and your support person Andrew Van Elk wherein I raised my concerns regarding you leaving a changemaster tin at Coles Parkes on 9 November 2009 as well as making false accusations against your Branch Manager on 12 November 2009.

Your Branch Manager, Phillip Stivens, previously met with you on 11 November 2009 and after this discussion you were stood down with pay pending a full investigation into the incident.

On 9 November 2009 while replishing (sic) a changemaster at Coles Parkes you negligently left the changemaster tin behind. You did not realize that you had left the tin behind. The Branch Supervisor discovered that the tin was missing when the consignment was being processed later that evening. You have subsequently admitted that you had responsibility for the tin and that it was you that left the tin behind. The tin contained $9,910.00 and loss of the tin could have resulted in significant loss to the company.

As a long serving employee you would also be well aware through your annual refresher training that you are responsible for the consignment and must always maintain a high level of concentration to minimize the risk of mistakes.

You would be aware that recently you have received two previous warnings:

On or around 17 July 2008 you were issued with a warning in regards to failure to load your firearm prior to departing the Branch. You were reminded at the time that this is a breach of Armaguard policy and Firearms legislation.

On or around 14 September 2009 you were issued with a final warning in regards to negligently driving an armoured vehicle on both 9 June and 20 August 2009.

On 9 June 2009 you were driving an armoured vehicle in a southerly direction towards Oberon when the vehicle slipped sideways on the road. It was reported by a witness to the event that you were driving too fast at the time.

On 20 August 209 (sic) while you were driving an armoured vehicle along a dirt road from Condobolin towards Tullamore you entered a bend at a dangerous speed. This resulted in the armoured vehicle sliding off the road into a stand of native trees.

Your final warning letter made clear to you that any further performance issues, not limited to negligent driving, will result in further disciplinary action which may include dismissal.

On or around 12 November 2009 you faxed me a complaint against Mr. Stivens alleging that he had racially vilified you and that the disciplinary action against you was a personal vendetta against you because of your aboriginal descent.

During our meeting on 18 November Ms Hann and I investigated these claims. As discussed with you at this meeting we are unable to substantiate any of your complaints. In fact, the complaints lack substance and could be construed as frivolous and vexatious. You admitted to us that Mr Stivens had not racially vilified you and that the complaint had in fact been written by your wife. You then sought to withdraw the complaint.

Making accusations that reasonable direction, performance management and appropriate disciplinary action constitutes racial vilification is unacceptable. Submitting a formal complaint with false allegations against Armaguard Management is inappropriate behaviour. It could also be construed as defamatory conduct.

Your actions on both 9 November 2009 and 11 November 2009 constitute serious misconduct and your responses during the meeting on 18 November 2009 were inadequate to mitigate the seriousness of your actions.

As such, you leave me no alternative but to terminate your employment effective immediately due to serious misconduct. You will be paid out in lieu of notice and your accrued entitlements will be deposited into your nominated bank account.

If you have any questions please do not hesitate to contact me on…

Yours sincerely,

Trevor Woodward

Eastern Region Operations Manager

Armaguard Pty Ltd” 6

[17] The applicant, in Annexure B to his application, disputed the reason for his termination of employment and maintained that he was treated more harshly than other workers. He stated that he “should not have been dismissed at all. I have given long service to Armaguard and believe that I was treated unfairly”. 7

[18] The facts relevant to the applicant’s application are contested. In proceedings for an unfair dismissal remedy the applicant bears the burden of proof to substantiate his claim. On the material before me I am unable to form a view on the merit or otherwise of the application. The merit of the applicant’s claim requires the leading of all relevant evidence and the testing of that evidence to fairly determine if his termination of employment by the respondent was harsh, unjust or unreasonable in the circumstances of the case. The proceedings before me concern the exercise of discretion to allow a further period for the application to be made and it is not appropriate, in the circumstances, that I form a prima facie view on the merits of the application.

[19] The submissions presented on behalf of the parties, in relation to factors to take into account when considering paragraph (f) of ss.394(3) of the Act, appeared to address the concept of a reasonable explanation for the delay and merit issues. This factor concerns fairness as between the person, being the applicant in this matter, and other persons in a similar position. In Wedesweiller and Others v Cole and Others,Sheppard J stated the following in relation to a consideration of fairness:

“Ordinarily one might regard an application for extension of time made almost 12 months after the expiry of the prescribed time as being too late, particularly where the prescribed period is as short as 28 days. That is the view I think I would have had in relation to these applications were it not for the fact that there are pending for hearing in the court’s list approximately 190 similar applications, all arising out of similar incidents to those complained of by these applicants. It is that circumstance which, according to the submission of senior counsel, makes this case different from others. Furthermore, as a matter of fairness amongst employees in similar situations it is only right, in his submission, that these applicants be allowed to proceed.” 8

[20] On the material there does not appear to be an issue of fairness as between the applicant and other persons in a similar position in the circumstances of this case.

[21] In considering the material before me and having taken into account paragraphs (a) to (f) of ss.394 (3) of the Act, where relevant to the matter, I am satisfied, for the above reasons, that there are exceptional circumstances that persuaded me to allow a further period for the application to be made. I am satisfied that the applicant did all he could to obtain assistance in lodging his application. I am persuaded that the delay in the lodgement of his application was due to representative error. The delay was not a lengthy delay and I am not persuaded that the respondent would suffer a prejudice if the extension of time was allowed. For the reasons I expressed above, I do not form a prima facie view of the merit of the application, albeit I note that the applicant bears the burden of proof in the matter. I am not persuaded that paragraph (f) of ss.394(3) of the Act is relevant in the circumstances of this case. I will, therefore, extend the time for the making of the applicant’s application to 10 December 2009.

[22] An order reflecting this decision will issue separately.

COMMISSIONER

 1   Form F3 – Employer’s Response to Application for Unfair Dismissal Remedy.

 2   Applicant’s statement dated 2 February 2010 at paragraph 25.

 3   Ibid at paragraph 19.

 4   The applicant’s statement at paragraph 21 states the date as 4 November 2009, which obviously should be 4 December 2009.

 5   Respondent’s written submission filed 4 March 2010.

 6   Ibid at Annexure Two.

 7   Form F2 at 11 of Annexure B.

 8 See (1983) 47 ALR 528 at 534.

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