Mitch Tyack v BAE Systems Australia Limited T/A BAE Systems Australia

[2015] FWC 1689

[2015] FWC 1689

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mitch Tyack
v
BAE Systems Australia Limited T/A BAE Systems Australia
(U2015/173)

VICE PRESIDENT WATSON MELBOURNE, 13 MARCH 2015

Application for unfair dismissal remedy - jurisdiction - application for extension of time for lodgment - representative error - whether exceptional circumstances - Fair Work Act 2009 - s.394.

[1] This decision, edited from a decision on transcript on 27 February 2015, concerns an application for unfair dismissal remedy by Mr Mitch Tyack pursuant to s.394 of the Fair Work Act 2009 (the Act). The application concerns the termination of Mr Tyack’s employment with BAE Systems Australia Limited trading as BAE Systems Australia (BAE Systems).

[2] Mr Tyack’s application for unfair dismissal remedy was filed on 13 January 2015 and it relates to a termination of employment that took effect on 18 December 2014. The application was made outside of the statutory time limit prescribed by s.394 of the Act.

[3] The issue I am required to determine is whether to extend the time limit for filing an application under s.394 of the Act by the five days by which the application was late beyond the 21 days that is set in s.394(2) of the Act. The test I am required to apply is set out in s.394(3) of the Act and it requires a consideration of various factors and, having taken those matters into account, the Commission being satisfied that there are exceptional circumstances.

[4] I think the facts are relatively straightforward here and I do not propose to provide a full summary of them.  The key issue that is dealt with in the evidence of the parties concerns the reason for the delay. The reason for the delay in this case is admitted and accepted as representative error by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) in erroneously operating on the basis of the date of termination later than the actual effective date of termination and proceeding on the basis that there was a longer period to file the application, the preparation of which was required to occur over the Christmas/New Year period.

[5] The union has honestly accepted its responsibility for that error and submits that that is the reason for the delay and, given that Mr Tyack was in no way responsible for that delay, submits that those circumstances should be regarded as an acceptable explanation for the delay and, combined with all of the circumstances, satisfies the tests of exceptional circumstances.

[6] As far as the facts are concerned, there is no great dispute. This case really revolves around alternative arguments as to whether the relevant level of satisfaction should be found in those circumstances.

[7] I accept that the representative error of the AMWU is the reason for the delay and, consistent with authorities in relation to that matter where the employee is blameless, that does constitute an acceptable reason for the delay.

[8] Turning to the other factors, I think most all of them are quite neutral in relation to this issue.  It is clear that Mr Tyack became aware of the dismissal on the date it took effect, 18 December.  The union, his representative, also became aware of it on that date.  The union disputed the dismissal at that time and sought a resolution of the dispute over the dismissal so it was clear to the employer that the dismissal was disputed and probably there was a strong chance of a challenge to the dismissal.

[9] As to the question of prejudice, there might be said to be some unavoidable costs and time involved in any unfair dismissal application but I do not think that there is any significantly greater prejudice to the employer if this extension of time is granted compared to the situation of if the application was filed within time.  Obviously, extending the time is going to lead to a need for the employer to be involved in the matter that it would not otherwise be required to do.

[10] As far as the merits of the application are concerned, the parties have not addressed that in a great deal of detail.  It is difficult to form the view that there are strong prospects but it is also difficult to avoid forming the view that the case on the merits is at least arguable.  There might be some basis for the claim and I think the findings that I would make in relation to that matter are really confined to that.  It is not a case that is manifestly hopeless but nor am I persuaded that the case is necessarily strong on the basis of the material that has been filed.

[11] I do not think there is any real issue as to fairness as between Mr Tyack and other persons in a similar situation.  It is a rare incidence and applications lodged out of time are rejected commonly given the application of the test in the Act.  So I think that this is probably a neutral factor as well.

[12] In terms of considering all of those matters and whether all of the circumstances are exceptional circumstances, I think the main considerations revolve around the reason for the delay and the nature of the representative error.  As I said to the parties during the course of the proceedings, I think that it is important that the Commission adopts a consistent approach to these matters and I am mindful of the approach adopted by the Full Bench in Robinson v Interstate Transport 1 which suggests the circumstances that are quite similar are likely to constitute exceptional circumstances.  So the Full Bench said, in paragraph 41:

“In our view, the error by Mr Robinson’s original representative, in circumstances in which Mr Robinson is blameless for the delay, constitutes an exceptional circumstance in which the application should be accepted late.”

[13] That appears to be considering circumstances that are quite similar, though not identical, but elevating representative error and a blameless applicant to circumstances which, depending on all of the other factors, could well constitute an exceptional circumstance.

[14] In that case, there was a longer period for filing the application. That is a point of distinction.  In this case, there was the intervention of the Christmas break where a number of officers of the AMWU were on leave.  That could be said to be a further exceptional nature of the representative error.  The same error occurring at any other time may not have been as exceptional.  I accept what Mr Terzic has said, that if this is an unusual event - and in this case is not unique but it appears to be unusual - that is a factor to be taken into account.  If it was a common event, it may well cease to be an exceptional circumstance.

[15] I have some difficulty in deciding the case but, on balance, I am satisfied that there are exceptional circumstances in this matter for the reasons that I have given.  I propose to extend the time for filing the application to allow for its filing and consideration from the date it was filed.  I will make an order to that effect and I will issue a decision in this matter formally edited from the transcript in this matter.

VICE PRESIDENT WATSON

Appearances:

Mr B Terzic of the AMWU on behalf of Mr Tyack.

Mr L Hillier on behalf of BAE Systems.

Hearing details:

2015.

Melbourne.

27 February.

Final written submissions:

Mr Tyack on 13 February 2015.

BAE Systems on 23 February 2015.

 1   Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728.

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