Mr Adam Prosser v Acciona Infrastructure Australia Pty Ltd

[2019] FWC 3153

[2019] FWC 3153

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Adam Prosser
v
Acciona Infrastructure Australia Pty Ltd
(C2019/1026)

DEPUTY PRESIDENT CROSS SYDNEY, 6 JUNE 2019

Application to deal with a general protections dispute involving dismissal; application made outside of the time prescribed; whether there are exceptional circumstances; whether discretion to allow a further period within which application may be made should be exercised; extension of time granted.

[1] On 15 February, 2019, Mr. Adam Prosser (“the Applicant”) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant commenced employment with Acciona Infrastructure Australia Pty Ltd (ABN 52 140 915 251) (“the Respondent”) in April, 2012, and his employment was terminated by the Respondent on 24 January, 2019.

[2] General Protections applications involving dismissal must be made within twenty-one (21) days after a dismissal took effect or in such further time as the Fair Work Commission (“the Commission”) may allow.  As the dismissal took effect on 24 January, 2019, an application for a remedy should have been lodged by no later than 14 February, 2019. The application was therefore lodged outside of the time prescribed and was, in effect, lodged one (1) day after the last day on which such an application could have been made.

[3] On 28 March, 2019, I convened a Directions Hearing to decide the manner in which the Applicant’s Application (“the Application”) to be allowed an additional period within which to lodge his application would be determined. By consent, the Applicant and the Respondent agreed to a timetable for the filing of Outlines of Submission addressing the Application, together with any witness statements and other documentary material upon which each party intended to rely. The Applicant and the Respondent also agreed that the Application would be determined upon the materials filed, noting that paragraph 4 of the Directions issued reserved the right for a party to request a hearing of the evidence in the Application. In the Directions Hearing, the Applicant and the Respondent were specifically directed to the five (5) factors that must be taken into account pursuant to paragraphs (a) to (e) of ss.366(2) of the Act as outlined in paragraph [9] of this Decision.

[4] The parties complied with the Directions for the filing of evidence. In particular:

(a) On 4 April, 2019, the Applicant filed an Outline of Submissions (“the Applicant’s Submission”) that included various annexures, including an Affidavit by the Applicant’s representative, Mr. Daniel Chen;

(b) On 15 April, 2019, the Respondent filed an Outline of Submissions (“the Respondent’s Submission”); and

(c) On 23 April, 2019, the Applicant filed an Outline of Submissions in Reply (“the Applicant’s Reply Submission”).

[5] On 26 April, 2019, and beyond the directions for the filing of evidence, the Respondent sent an email to my Chambers that contained further reply Submissions (“the Respondent’s Reply Submission”), and stated:

“The Respondent otherwise reserves the right to respond to the further material that has been submitted on behalf of the Applicant, and in the interests of natural justice, pursuant to Order 4 of the Directions of Deputy President Cross of 28 March 2019, seeks to be afforded the opportunity for a hearing of evidence in respect of the Applicant’s request for an extension of time for the filing of its Application, allowing for inter alia the cross-examination of evidence put forward by the Applicant’s representatives and the requirement of the Applicant’s own attendance at the hearing for cross-examination. In that event, the Respondent repeats its submission that the Commission, in conducting any possible hearing, ought to either refuse to allow the admission of the Affidavit of Daniel Jie Chen (Chen Affidavit) if Mr Chen proposes to appear, or otherwise refuse Mr Chen leave to appear if the Applicant wishes to rely upon the Chen Affidavit.”

[6] On 16 May, 2019, the matter was listed by telephone for further Directions to deal with the Respondent’s request for a hearing of evidence. In that hearing: -

(a) The Respondent’s request that the Applicant be required for cross-examination was denied on the basis that no statement had been filed by the Applicant and no grounds for requiring his attendance had been advanced;

(b) No difficulty was found in Mr. Chen’s appearance in the matter; and

(c) The matter was listed for Hearing at 10:00am on 5 June, 2019, unless the Respondent indicated by 4:00pm on 27 May, 2019, that such hearing was no longer required.

[7] At 8:46am on 28 May, 2019, the Respondent sent a further email to my Chambers. It advised as follows:

“We refer to the above matter, which we confirm is currently listed for Interlocutory Hearing at 10.00am on Wednesday 5 June 2019 by video link.

Further to the indication of Deputy President Cross during the course of the Telephone Mention on 16 May 2019, we advise as follows:

1. We reiterate the contents of our email of 26 April 2019, wherein we indicated that the Respondent refers to and repeats its Outline of Submissions dated 15 April 2019, and says that:

a. Despite clear opportunities and an invitation by the Respondent in its Outline of Submissions that he do so, the Applicant himself has failed to provide a Witness Statement which has the effect that there is either insufficient or no evidence in support of the Applicant’s contention that there are exceptional circumstances for allowing a further period in which to file the Application.

b. The filing of an Outline of Submissions by the Applicant’s representatives is not the same as verifying facts by way of direct evidence from the Applicant, which ought to be readily obtainable.

c. In the absence of evidence, it is open to the Commission to draw the obvious adverse inference from the testimonial inactivity of the Applicant consistent with the principles in Briginshaw v Briginshaw [1938] 60 CLR 336.

d. In the premises, the Respondent respectfully seeks dismissal of the Application on the papers for want of jurisdiction on the basis that the Application has not been made within 21 days after the purported dismissal took effect as required by section 366(1) of the Fair Work Act 2009 (Cth) (the Act), and that the Commission should not allow a further period as it cannot be satisfied that there are exceptional circumstance pursuant to section 366(2) of the Act.

2. In the circumstances, the Respondent no longer presses for a hearing of evidence in respect of the Applicant’s request for an extension of time for the filing of its Application, thereby obviating the need for the Interlocutory Hearing on 5 June 2019.”

[8] The contents of paragraphs (a) to (d) of paragraph 1 in the above email were copies of the first four of the five paragraphs of the Respondent’s Reply Submission, so it was difficult to understand how repeating their contents lead to “circumstances” that obviated the need for the Hearing on 5 June, 2019. Nonetheless, the parties were relieved of the further cost that would be involved in such Hearing and the matter could proceed to be determined.

[9] I have determined that the Applicant should be granted a further period within which to lodge his application. These are the reasons for that decision.

[10] The matters that I am required to take into account in considering whether or not I am satisfied that there are exceptional circumstances are contained in s.366(2) of the Act:

“366 Time for application

…

(2) The FWC may allow a further period if the FWC 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.”

[11] It is clear from the structure of s.366(2) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively, and to ask whether collectively the matters show exceptional circumstances.

[12] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account all the factors in s.366(2) of the Act that there are exceptional circumstances.

The Facts

[13] The factsin this matter can be discerned from the Form F8 filed by the Applicant, the Form F8A filed by the Respondent, and the Affidavit of Mr. Chen. It may be that certain facts regarding the events leading up to the alleged termination on 24 January, 2019, are disputed, however the Respondent did not respond in any detail to the facts as alleged by the Applicant in the Form F8. The facts after 24 January, 2019, are derived from the unchallenged evidence of Mr. Chen. Those facts are:

(a) The Applicant began working for the Respondent on 12 April, 2012, as a Workplace Health and Safety Advisor, in Mackay, North Queensland.

(b) On 18 April, 2016, the Respondent advised the Applicant that he would be assigned to the Toowoomba Second Range Crossing Project (“the TSRC Project”).

(c) The Applicant asserts that the site of the TSRC Project was subject to numerous health and safety incidents that resulted in an almost daily attendance by Work Health Safety Queensland and relevant unions. The applicant submits that due to a combination of these factors he was placed under a high amount of stress that was not alleviated by the Respondent’s managerial team. 1

(c) The Applicant made numerous complaints to managers of the Respondent regarding work health and safety at the TSRC Project. The Applicant asserts that threats were made to him arising from those complaints. The Applicant says he also made a complaint about the hiring of a Safety Adviser in his work area without his consultation or knowledge. 2

(d) A meeting occurred on 11 September, 2018, to discuss the issues regarding the abovementioned complaints and threats, and the hiring of the Safety Adviser. The Applicant claims he was eventually advised in that meeting that “if he did not resign he would be ‘performance managed out’”. 3

(e) Following the meeting on 11 September, 2018, the Applicant was absent on personal leave until 24 January, 2019. The Applicant lodged a WorkCover claim. The Applicant alleges that the Respondent did not pay his personal leave entitlements despite his providing medical certificates, until the Applicant authorised the Respondent to speak with his treating doctor. 4

(f) On 12 December, 2018, the Respondent sent the Applicant correspondence indicating that it had concerns that the Applicant would not be able to return to the workplace without exposing himself to risk. On 20 December, 2018, the Respondent alleged it had obtained a report from the Applicant’s treating doctor and sought a meeting with the Applicant. That meeting did not occur.

(g) On 24 January, 2019, the Respondent wrote to the Applicant stating that the Applicant’s doctor “…believes that you would only currently be fit for part-time, home based work, for 3 days a week”, and that “… while the assessment looks “ultimately” towards a return to full-time on site work, the prognosis suggests that you could not be expected to be able to do so for some time, and only after periods of working at home and part-time”. The Respondent then concluded, “Consequently, the outcome of our review into your ongoing employment is that we can no longer hold your position as a Safety Coordinator open for the reason that you are unable to carry out the inherent requirements of the full-time site-based role for which you were employed and will be unable to do so for the foreseeable future. Your employment with ACCIONA will thereby cease, by way of frustration of your contract of employment, effective today”.

(h) On 7 February, 2019, Mr. Chen conducted a telephone consultation with the Applicant to discuss the circumstances surrounding his termination of employment with the Respondent. Mr Chen sent an email to the Applicant at 1:06pm 7 February, 2019, requesting further documents and confirming that a client agreement would be provided to him. The Applicant promptly provided the requested documents. 5

(i) Mr. Chen then calculated the deadline for filing the general protections claim having regard to the fact that the statutory twenty-one (21) period does not include the date the dismissal took effect pursuant to s.36(1) of the Acts Interpretation Act 1901 (Cth). As the Respondent’s letter specified that the Applicant’s employment ceased effective 24 January, 2019, Mr. Chen calculated the twenty-one (21) days from 25 January 2019 (the day after the dismissal was effective) using a date calculator which produced a result of 15 February, 2019. 6

(j) At 1:19pm on 11 February, 2019, Mr. Chen advised the Applicant (erroneously) that the deadline for filing an application would be 15 February 2019. He requested the Applicant inform him if he wished to proceed by 3:00pm on 13 February 2019. 7

(k) At 2:33pm on 11 February, 2019, the Applicant instructed Mr. Chen that he wished to proceed, but that he might have some more material for use in his application. 8

(l) At 5:57pm on 14 February, 2019, Mr. Chen provided the Applicant with a draft of the Application. He informed the Applicant that once he approved the draft application, he would file it with the Fair Work Commission. 9

(m) At 7:25am on 15 February, 2019, the Applicant indicated that he had read the draft application but had a few comments. The Applicant provided his comments at 8:33am on the same day and made it clear that he trusted Mr. Chen’s judgement as to whether to include his comments in the Application. 10

(n) At 1:09pm on 15 February, 2019, Mr. Chen provided the Applicant with an amended application for his approval. At 6:18pm on 15 February, 2019, Mr. Chen filed the application with the Fair Work Commission in accordance with the Applicant’s instructions. 11

Consideration

(a) Reason for the delay

[14] The reason for the delay in lodging the Application relied upon by the Applicant was that the Applicant’s representative had miscalculated the twenty-one (21) day period in which a General Protections application is to be lodged. This miscalculation occurred as a result of the Applicant’s representative using an online date calculator.

[15] The Respondent submitted that the explanation for the delay was not reasonable, particularly having regard to Mr Chen’s background as both an industrial relations consultant and specialist workplace relations lawyer. The Respondent asserted, without any apparent basis:

“Mr Chen would be expected to have in the normal course of his practice been required to have dealt with the issue of the 21 day period on at least a weekly, if not daily, basis. It begs the question whether he has relied on the same method of calculation in other instances and whether he has miscalculated it then also. If not, why should he have done so in this case?” 12

[16] The Respondentalso sought to impugn the conduct of the Applicant. It submitted that:

“Notwithstanding the position put by the Applicant, that the delay in filing was caused by his representative’s error, no explanation is provided by the Applicant as to why he waited 15 days inclusive from the date of his purported dismissal on 24 January 2019, to speak with Mr Chen on 7 February 2019. This period represents two thirds (2/3) of the 21 day time period allowed for filing an application under Section 365 of the Act. In this regard, there is a distinction between a delay caused by the representative where the employee is blameless and when the employee has contributed to the delay.” 13

[17] The Respondent even went so far as toassert that the failure of the Applicant to explain the reasons for these delays, or to indicate whether he was aware of the statutory time frame for making a general protections claim, resulted in it being open to the Commission to “…draw the obvious adverse inference from the testimonial inactivity of the Applicant consistent with the principles in Briginshaw v Briginshaw [1938] 60 CLR 336, such that representative error alone, and the Applicant’s reliance on it, was not the single cause of the delay in filing”. 14

[18] The Commission must consider the reason for the delay. The delay was only one (1) day, though whether one day or one year, there must be an acceptable explanation for the delay. 15 The reason given for the delay was representative error involving a miscalculation of the required filing date.

[19] The evidence in the matter is clear. There exists clear contemporaneous evidence that between 8 February and the morning of 11 January, 2019, Mr. Chen used an online calculator to determine the requisite filing date. So much is clear because he advised the Applicant at 1:20pm on 11 February, 2019:

“Adam, we appreciate the circumstances may be stressful for you however the deadline for you to commence a claim is 5pm Friday 15 February 2019 (being 21 days from the date of the dismissal.” (Original emphasis).

[20] It is also clear that the reason for the miscalculation was that Mr. Chen applied s.36(1) of the Acts Interpretation Act 1901 (Cth) before entering the necessary details into the online calculator. He entered the date following the dismissal into that calculator, rather than the actual date of the dismissal.

[21] No part of theerror can be attributed to the Applicant. Not taking immediate action within the twenty-one (21) day period cannot be a basis for criticism. The evidence discloses that, while the Applicant did not consult with Mr Chen until 7 February, 2019, thereafter both the Applicant and Mr Chen diligently corresponded and amended, with some care, the Application. They did so all the while under the mistaken belief that the last day for filing was 15 February, 2019, but no part of that mistake can be apportioned to the Applicant. 16

[22] There is a credible explanation for the delay. That weighs in the Applicant’s favour.

(b) Action taken by the person to dispute the dismissal

[23] The Applicant pointed to having engaged his WorkCover lawyer following his dismissal. However, there was no communication with the Respondent, or any other body, disputing the dismissal until the Application was filed, and it could not be said that the Respondent was on notice of a challenge to the dismissal.

[24] The relevance of this consideration, however, is almost nil in the circumstances as the Application was only one (1) day late.

(c) Prejudice to the employer

[25] Similarly, a delay of one (1) day would not likely prejudice the employer. The Respondent referred in their submissions to the conclusion of Deputy President Gostencnik in Ozsoy v Monstamac Industries 17, referred to at paragraph [18] above, that whether a delay was one day or one year did not take the matter further. However, that conclusion related to the need to provide an acceptable reason for delay.

[26] The Respondent would not suffer any prejudice either by reason of the delay or if the Applicant were permitted to make his application outside the prescribed time period. However, the mere absence of prejudice to the Respondent does not mean it is a sufficient basis to grant an extension of time. 18 In the circumstances, I consider this consideration to be essentially neutral.

(d) Merits of application

[27] I have had the opportunity to read the materials filed by each party. I am satisfied based on that material and accepting that the material has not been tested by way of cross examination, the Application is certainly not without merit.

[28] The Applicant submits that he was dismissed having relied on exercising his workplace rights of protection, coercion and temporary absence, namely illness or injury (ss. 340, 343 and 352 of the Act respectively). The Applicant had commenced a period of personal leave until his dismissal on 24 January, 2019, and he had pursued a worker’s compensation claim.

[29] The Respondent maintained that the Applicant was not dismissed, but terminated by way of frustration of contract. The Respondent, in the Form F8A, relies on the alleged frustration as the basis of a submission that the Applicant was not dismissed or otherwise subjected to adverse action, and so that the Applicant “…does not have standing to bring the Application against the Respondent.” 19

[30] While it would seem unlikely that the factual scenario relied upon by the Respondent would fall outside of the bounds of what is defined as adverse action in s.342(1) (Item 1) of the Act, it would also appear that the Respondent’s assertion of frustration is seriously questionable. As Mark Irving observed in “The Contract of Employment”:

“Although illness is probably the most common event to frustrate an employment contract, for the following four reasons it is rare for ill employees to have their contracts frustrated and it is exceedingly rare for temporarily ill employees to have their contracts frustrated.”  20

[31] Of the four reasons that Irving goes on to identify, the two most relevant, which both count against the Respondent’s assertion of frustration, are:

“1. …Further, the operation of the doctrine of frustration must be consistent with the statutory responsibilities of employers to retain in employment, and offer alternative employment to, employees receiving certain workers’ compensation benefits.

2. An illness will not frustrate a contract if it is foreseeable by the parties. It is suggested that almost all temporary illnesses are foreseeable in the relevant sense.”

[32] In the correspondence of 24 January, 2019, the Respondent acknowledged that the Applicant’s illness was temporary. The Respondent put to the Applicant “… while the assessment looks “ultimately” towards a return to full-time on site work, the prognosis suggests that you could not be expected to be able to do so for some time, and only after periods of working at home and part-time”. As such, it would seem highly unlikely that the Respondent’s contention of frustration would be upheld.

[33] In the circumstances, the fact that the Application is certainly not without merit weighs in the Applicant’s favour.

(e) Fairness between the person and other persons in a similar position

[34] As Commissioner Asbury (as she then was) held in Ms Norma Dean-Villalobos v QGC Limited T/A QGC 21 at paragraph [146]:

“As a general rule, persons who provide clear instructions to legal representatives and execute necessary documents in a reasonable time frame to allow them to be filed within time limits under the Act should not be prejudiced because of failure on the part of those legal representatives to comply. It is not unfair to other persons in the same position as the Applicant in this case, to extend the time limit for filing the application.”

[35] The Applicant is such a person. As noted above, no part of that mistake can be apportioned to the Applicant. He executed all documents within the time frame as advised by his representative. This consideration weighs in favour of an extension of time being granted.

Conclusion

[36] As is evident from the analysis above, the matters that were the subject of submission, consideration and apportionment of any significant weight, being acceptable reason for delay, the merits of the application and fairness between similar persons, all weigh in favour of a conclusion there are exceptional circumstances. None of the factors weigh in any substantial way against such a conclusion.

[37] I am persuaded therefore that there are exceptional circumstances. The Respondent did not raise any issue which might persuade me not to exercise my discretion notwithstanding that I have concluded there are exceptional circumstances. Nor am I aware of any persuasive discretionary consideration which would warrant that conclusion.

[38] The Application for extension of time is granted, and the Application is ordered to be lodged by 15 January, 2019. An Order to this effect will be issued.

DEPUTY PRESIDENT

Appearances:

Mr Daniel Chen, for the Applicant

Mr Andrew Ermer, of the Respondent

Hearing details:

2019.

Sydney (by telephone):

28 March, 16 May

Final written submissions:

For the Applicant: 15 April 2019

For the Respondent: 22 April 2019

Printed by authority of the Commonwealth Government Printer

<PR708073>

 1 Form 8, at 3.1, Para [3].

 2   Form 8, at 3.1, Para [9] to [17].

 3   Form 8, at 3.1, Para [18] to [23].

 4   Form 8, at 3.1, Para [24] to [27].

 5   Chen Affidavit at para [4] and Attachment A.

 6   Chen Affidavit at paras [7] and [8], and Attachment C.

 7   Chen Affidavit at para [9] and Attachment D.

 8   Chen Affidavit at para [11] and Attachment E.

 9   Chen Affidavit at para [14] and Attachment G.

 10   Chen Affidavit at para [15] and Attachment H.

 11   Chen Affidavit at paras [16] to [18], and Attachment J.

 12 Respondent’s Submission at [18].

 13 Respondent’s Submission at [21].

 14 Respondent’s Submission at [24].

 15   Cem Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479, at [21]. This decision of Deputy President Gostencnik not disturbed in the subsequent appeal.

 16   Davidson v Aboriginal and Islander Child Care Agency (1998) 105 OR 1 at 6.

 17   [2014] FWC 479.

 18 See Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

 19   At question 2.2.

 20   First Edition, 2012, at 12.18.

 21   [2013] FWC 1537.