Michael Robinson v Interstate Transport Pty Ltd T/A Fred's Interstate Transport
[2011] FWA 696
•2 MARCH 2011
Note: An appeal pursuant to s.604 (C2011/3739) was lodged against this decision - refer to Full Bench decision dated 17 May 2011 [[2011] FWAFB 2728] for result of appeal.
[2011] FWA 696 |
|
DECISION |
Fair Work Act 2009
s.365—General protections
Michael Robinson
v
Interstate Transport Pty Ltd T/A Fred’s Interstate Transport and anor
(C2010/4106)
COMMISSIONER SIMPSON | BRISBANE, 2 MARCH 2011 |
Alleged contravention of general protections provision - whether to grant extension of time for application - representative error - application refused.
[1] An application under Section 365 was filed by Mr Michael Robinson (“the applicant”) on 21 June 2010. The applicant was represented by Mr Adam Tayler of Workers First Australia Pty Ltd. The application named the first respondent to the application as Fred’s Transport Pty Ltd, and the second respondent as Roads Corporation of Victoria trading as VicRoads.
[2] The application states that the applicant was dismissed on 19 April 2010.
[3] The application was listed for conference on 15 July 2010.
[4] On 13 July 2010 I received correspondence from Sofra Solicitors 1 acting on behalf of a group of companies trading as “Fred’s Interstate Transport” advising that the first respondent to the proceedings is a company based in Prairiewood, New South Wales and that the entity was not part of their client’s group of companies. Further that as their client was not properly a party to the proceedings they would not be appearing in the conference.
[5] I was subsequently carbon copied correspondence from the applicant’s representative Mr Tayler 2 to Sofra Solicitors requesting that they identify the company within the group of companies which employed the applicant. The applicant’s representative Mr Tayler foreshadowed in that correspondence an application to amend the application accordingly.
[6] On 14 July 2010 Mr Tayler on behalf of the applicant sent an email to Fair Work Australia (FWA) requesting an adjournment of the conference listed for 15 July 2010 in view of the correspondence from Sofra Solicitors. The request was granted.
[7] On the 22 July 2010 an application was received from the applicant seeking leave to amend the application filed on 21 June 2010, pursuant to section 586 of the Fair Work Act 2009 (the Act) by substituting the name of the first respondent with Interstate Transport Pty Ltd ACN 124 185 575 because the original application had erroneously named the employer as Fred’s Transport Pty Ltd.
[8] An affidavit of Mr Adam Tayler was filed with the application seeking leave to amend which explained that the applicant had now provided him the correct name of his employer by reference to his 2010 PAYG payment summary received from his former employer.
[9] I decided to grant leave to amend the original application in the form sought and listed the matter for a further conference on 22 November 2010. The conference was not successful in resolving the matter and the respondents pressed an objection to the application on the basis that it was filed out of time.
[10] I issued directions on 22 November for the filing of submissions and any other material from the applicant by 10 December, the respondent by 17 December and the applicant’s reply material by 20 December. The directions order stated that the matter would be determined on the papers unless a party requested a hearing by Friday 26 November. No request was received.
APPLICANT’S CASE
[11] On 10 December 2010 the applicant filed an outline of submissions, with an affidavit of Mr Tayler. Mr Tayler is a Legal Practitioner.
[12] The submission of the applicant relies on representative error as the explanation for the delay, and that there was no contribution from the applicant for the delay.
[13] The Affidavit of Mr Tayler states that the applicant first made contact with Mr Tayler on 22 April 2010. Mr Tayler when he first received instruction from the applicant calculated the time limit to file the claim was by on or before 18 June 2010.
[14] Mr Tayler states that he set a computerised bring up reminder for that date in his firm’s case management system. As a result of inadvertence Mr Tayler said he overlooked this bring up and did not file the application on or before 18 June 2010 which was a Friday.
[15] Mr Tayler said in his affidavit that he realised his error on Sunday 21 June, 2010 and on that day filed the application by fax to FWA. As 21 June 2010 was a Monday Mr Tayler may have intended to refer to Monday and not Sunday as he has in paragraph 11 of his affidavit. In any event the application file contains a Form 8 Application which was received by fax transmission at the office of FWA in Brisbane at 3.44pm on 21 June 2010 which was a Monday.
[16] The applicant also relies upon the decisions in Trudgett v Training Aids Australia Pty Ltd 3 and Lane v Kangaroo Island Dive & Adventures Pty Ltd4 as being similar circumstances to this matter where an extension of time was granted.
[17] The applicant argued the employer has not suffered prejudice by the delay as it was only brief. The applicant states that as the allegations of coercion and misrepresentation against the respondent are serious allegations they should not be dismissed lightly.
RESPONDENT’S CASE
[18] The first respondent referred to the decision of Senior Deputy President Kaufman in Shields v Warringarri Aboriginal Corporation 5 where the view was expressed that the word “exceptional” meant that the hurdle for extensions of time was higher under the Act than it was under the Workplace Relations Act 1996.
[19] The first respondent also referred to Parker v Department of Human Services, South Metropolitan Region 6 where it was held that while there may be circumstances in which an employee who is ignorant of time frames can establish special circumstances, most employees would be able to access the information needed to lodge an application within the 60 days allowed.
[20] Reference was made to paragraph 39 of Commissioner Whelan’s decision in Parker where it was found that a short out of time period was a factor in favour of granting an extension however this would be relevant where an employee could show substantive reasons for the delay. The only reason offered in this case has been representative error.
[21] The first respondent argues that the present case can be distinguished from Trudgett and that there was no justification for Mr Taylor’s failure to file the application within the time frame as he had received instructions on 22 April 2010. 7
[22] The respondent referred to the case of Vasil Kiriacos Agriropoulos v Electricity Networks Corporation trading as Western Power 8 as support for the proposition that applications grounded on representative error, in the absence of other explanation, is not to be considered as exceptional circumstances to justify an extension of time.
[23] The first respondent also argued that it has suffered prejudice on the basis that it was not afforded an opportunity to make submissions on the application of the applicant to substitute the first respondent as a party to the proceedings. The first respondent has argued that the most appropriate course would have been for FWA to dismiss the application issued against the incorrect Respondent and for the applicant to issue a “fresh application” which would have been out of time.
[24] The first respondent argued that on the question of the merits of the case the applicant has committed three substantial breaches of his employment that had exposed the first Respondent to prosecution, conviction and penalty within a period of one month of commencing his probationary period.
CONSIDERATION
The relevant legislative provision is set out as follows:
366 Time for application
(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.
The reason for the delay
[25] The applicant has referred to Lane’s case and Trudgett’s case as a basis for granting an extension of time on the basis of representative error.
[26] I agree with the first respondent that the present case can be distinguished from both of these cases in that the circumstances are different. Both of those cases involved representative error occurring because of the recent commencement of legislative provisions that prevent applications being made under section 773 where an application was available under section 365. In those cases applications were filed within time but under the wrong section. That circumstance does not exist in this case.
[27] A recent Full Bench decision in Patrick Morgan McConnell v A & PM Fornataro t/a Tony’s Plumbing Service 9 at paragraph 35 adopted the approach summarised in Davidson v Aboriginal and Islander Child Care Agency10 regarding matters involving representative error as follows;
“(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 carryout 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.”
[28] I am mindful of the language in point (iii) above which indicates some expectation that the applicant make some effort to ensure the claim is lodged.
[29] Mr Tayler in his affidavit refers to his ‘inadvertence’ in overlooking a bring up reminder to file the application by 18 June 2010. Is such ‘inadvertence’ on the part of a representative an exceptional circumstance? I am inclined to believe it is more likely to be in a situation where there is evidence of active preparation underway but less so where a matter is simply left for an extended period with little or no activity in preparation for filing by either the applicant or his representative as appears to be the case in this instance.
Action taken to dispute dismissal
[30] The applicant took prompt action to seek legal advice within two days of termination. However there is little further evidence to suggest that the applicant took an active interest in pursuing the application.
[31] Following the initial meeting with Mr Tayler on 22 April the applicant attended a further meeting with Mr Tayler on 13 May 2010 where a client agreement was signed and instructions to proceed were given. From the material provided there is no further evidence of any steps taken by the applicant between 13 May 2010 and the 18 June 2010 when the application was required to be filed.
Prejudice to the employer
[32] The delay in filing was of short duration, however the application when filed did not correctly identify the employer of the applicant and this caused some further delay. It is not my view that this error caused significant further prejudice to the employer than they would ordinarily otherwise have suffered if an extension was granted.
The merits of the application
[33] The information before me is necessarily limited. From the affidavit material filed by both Mr Borg for the first respondent and Mr Tayler for the applicant I note the following:
(1) The employee’s tenure was very brief. According to the affidavit of Mr Borg the applicant commenced a three month probationary period of employment on 12 March 2010 and was dismissed on 19 April 2010.
(2) The affidavit of Mr Borg refers to a written warning for speeding issued to the applicant on 5 April 2010. A copy of a document attached to the affidavit of Mr Borg as exhibit DB3 is said to be a warning issued to the applicant.
(3) The respondent alleges the applicant committed a breach of company policy regarding overloading of his vehicle on 7 April 2010 which resulted in a Substantial Breach - Overload charge by Roads and Traffic Authority (RTA) issued on 7 April 2010 against Eezee Nominees Pty Ltd, a related company which owns a number of vehicles being driven by the applicant for the first respondent on 7 April 2010. Mr Borg’s affidavit attached at exhibit DB4 a copy of the Breach report/penalty Notice.
(4) On 14 April 2010 the first respondent alleges the applicant committed a further breach of company policy by speeding and failing to comply with a lawful request or direction of a Roads Corporation Officer. The first respondent made reference to the affidavit of Mr Tayler dated 10 December 2010 and exhibit ANT5 attached to that affidavit which is a charge sheet and summons detailing 10 charges against the applicant. Mr Tayler advised that the applicant will plead not guilty to all charges and the matter has been set down for trial in the Broadmeadows Magistrates Court on 8 April 2011.
(5) Documents attached to the affidavit of Mr Borg and marked as exhibit ‘DB5’ are said to be a second and third warning. The matters set out above appear to have been within the knowledge of the first respondent at the time of termination. I particularly refer to the Substantial Breach - Overload charge issue by the RTA on 7 April 2010, and the events of the 14 April 2010 that are now the subject of other proceedings.
[34] The first respondent states through the affidavit of Mr Borg that the applicant committed three substantial breaches that had exposed the first respondent to prosecution, conviction and penalty within a period of one month of commencing probationary employment.
[35] On the basis of the limited material before me I am persuaded that the first respondent has a strong prima facie case to argue that the applicant’s employment was terminated during the probationary period on just and lawful grounds connected to matters set out above.
Fairness as between the person and other persons in a like position.
[36] The applicant referred to the cases of Trudgett and Lane where extensions were granted in cases of representative error and argued their similarity to this case. For the reasons set out above I believe they can be distinguished.
CONCLUSION
[37] Having considered the facts of this application. I am not persuaded that exceptional circumstances exist that warrant the granting of an extension of time.
[38] I adopt the views expressed by Senior Deputy President Kaufman in Shields v Warringarri Aboriginal Corporation 11regarding the distinction between the current Act and its predecessor in such cases. There appears to have been little or no activity in progressing the application between 13 May 2010 and 18 June 2010. There is a lack of evidence that the applicant was active in pursuing the claim following the finalisation of a client agreement with Mr Tayler on 13 May 2010. I do not accept that the respondents would suffer any significant degree of prejudice if the claim was granted. I have however formed a view that the applicant’s case appears weak, although I cannot say it has no possibility of success. For the combination of reasons set out above I am persuaded not to grant the application for an extension of time. On that basis I dismiss the application under section 365 on jurisdictional grounds.
COMMISSIONER
1 Exhibit 1
2 Exhibit 2
3 [2010] FWA 2235
4 [2010] FWA 3939
5 [2009] FWA 860
6 [2009] FWA 1638 at paragraph 33 Whelan C
7 Respondent submissions page 3
8 [2010] FWA 8332
9 [2011] FWAFB 466
10 Q0784
11 [2009] FWA 860
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