Mr Adrian Rebeiro v Serco Australia Pty Ltd
[2012] FWA 6081
•19 JULY 2012
[2012] FWA 6081 |
|
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Adrian Rebeiro
v
Serco Australia Pty Ltd
(C2012/660)
COMMISSIONER CLOGHAN | PERTH, 19 JULY 2012 |
Application to deal with contraventions involving dismissal.
[1] On 10 June 2012, Mr Adrian Rebeiro (“the Applicant”) made application to Fair Work Australia (FWA) to deal with a general protections dispute in which he alleged that he had been dismissed by Serco Australia Pty Ltd (“the Employer”) in contravention of Part 3-1 General Protections of the Fair Work Act 2009 (“the FW Act).
[2] The application was made pursuant to s.365 of the FW Act.
[3] Mr Rebeiro states in his application that he was dismissed by the Employer on 11 February 2011.
[4] The Applicant has not filed his application within the standard statutory time of 60 days as required in paragraph 366(1)(a) of the FW Act.
[5] FWA may allow a further period in which the application can be filed, pursuant to paragraph 366(1)(b) of the FW Act, if it is satisfied 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.
[6] On 22 June 2012, I issued procedural directions providing Mr Rebeiro with the opportunity to satisfy the Tribunal that exceptional circumstances existed to allow the application to be filed on 10 June 2012. The procedural directions enabled the Employer to respond to Mr Rebeiro’s submissions that exceptional circumstances existed.
THE APPLICANT’S SUBMISSION
The reason for the delay
[7] Mr Rebeiro’s reason is relatively short and reproduced in its entirety:
“I appointed an industrial agent (whom I believed to be a lawyer) to represent my case to FWA as outlined in his initial strategy. The agent did not lodge papers as he was trying to obtain confidential documents he believed necessary to further the case. I did not know the legal reasons for this, especially as I furnished him with documents and emails that were regarded by my union as cogent and admissible as evidence. Despite numerous attempts to contact the agent I only received two calls, some initial emails, and a final email where he suggested a possible avenue of making an appeal to a Supreme Court and the likely expensive cost of such an approach. I lacked the means to do this let alone engage an ordinary lawyer when I noticed the lack of response and case progress feedback from the appointed agent. As such I stayed with the appointed agent as my best option.”
Any action taken by the person to dispute the dismissal
[8] Mr Rebeiro states that he:
• engaged an agent whom he believed to be a lawyer;
• contacted his former manager, Mr Michael Chesi indicating that he believed his dismissal was unfair;
• experienced difficulties with his agent regarding the progress of his claim despite providing material from his union which assisted his claim;
• telephoned FWA to be advised that he had missed the primary statutory deadline;
• spoke to an unnamed state legal practitioner regulatory agency who referred him to the Western Australia Industrial Relations Commission (WAIRC); and
• received suggestion from the WAIRC that he make a late application to FWA on the lack of progress by his agent.
Prejudice to the Employer (including prejudice caused by the delay)
[9] Mr Rebeiro states that he does not seek to cause any adverse impact on the Employer and apologises for the delay in filing the application, however, this was “out of my control as I trusted my agent to represent me”.
The merits of the application
[10] Mr Rebeiro addresses this issue more extensively in his reasons for the delay. Mr Rebeiro refers to “Gate” incident, his lack of formal warnings and the unfairness of the dismissal.
Fairness as between the person and other persons in a like position
[11] Mr Rebeiro states that he lacks the means and acumen to exhaustively research legal similarities, however, refers to comments by Ryan C dated 30 December 2010 in a decision which is not cited concerning warnings and the consequences of those warnings.
THE EMPLOYER’S SUBMISSION
[12] It is not necessary to set out in detail the Employer’s response to the Applicant’s submission, save to say, that it emphasised that the Applicant failed to discharge the onus upon him of demonstrating exceptional circumstances, the considerable delay and that the application be dismissed.
RELEVANT LEGISLATIVE FRAMEWORK
[13] Sections 365 and 366 of the FWA Act provide:
• 365 Application for FWA to deal with a dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to FWA for FWA to deal with the dispute.
• 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.
(my emphasis)
CONSIDERATION
[14] It is not in dispute that Mr Rebeiro was dismissed on 11 February 2011.
[15] It is self evident that, as Mr Rebeiro’s application was received on 10 June 2012, he did not meet the primary statutory deadline of 60 days as required by paragraph 366(1)(a) of the FW Act.
[16] Consequently, it is necessary for me to be satisfied, for the reasons outlined above in paragraphs [7] to [11], that there are exceptional circumstances, taking into account the criteria in subsection 366(2) of the FW Act to allow Mr Rebeiro to file his application on 10 June 2012.
[17] As a reminder, Mr Rebeiro filed his application 1 year, 3 months and 28 days after his dismissal or 1 year and approximately 2 months after the statutory timeline for lodging the application.
[18] Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd [2010] FWA 1394 adopted the analysis concerning exceptional circumstances endorsed by Commissioner Whelan in Parker v Department of Human Services[2009] FWA 1638. In summary, the analysis is described as:
“...exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief” 1;
and
“...a circumstance which is such as to form an exception, which is out of the ordinary, 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.” 2
[19] Similar statements were expressed in Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.
[20] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. In my view, the nature of “exceptional” cannot be judged by the Applicant alone, or the provisions of paragraph 366(1)(b) would be self defining. While each individual person’s circumstances are unique, the Tribunal is able to determine whether, following a qualitative examination of the person’s circumstance, exceptional circumstances existed.
[21] Further, and finally, I do not think it unreasonable that the longer the delay in filing the application, the greater the extent of verification of exceptional circumstances that should be established by an applicant.
[22] I now turn to the criteria in subsection 366(2) of the FW Act which must be taken into account to determine whether there were exceptional circumstances.
[23] Simply, and shortly put, Mr Rebeiro asserts that the reasons for the delay was the inaction or inattentiveness of his agent.
[24] The manner in which Mr Rebeiro has treated the inaction or inattentiveness of his agent is unusual in these circumstances. The Applicant, perhaps for good reason, does not name his agent. However, I was not provided with the date the agent was first approached by the Applicant or a single date of any interaction between Mr Rebeiro and his agent. Although, the Applicant states he made numerous telephone calls to his agent, I have no dates. In concluding, Mr Rebeiro states he received a “final email” which suggested recourse to the Supreme Court; again, I have received no date or a copy of the email.
[25] I note that, at some stage, it appears that Mr Rebeiro was a member of the Community and Public Sector Union (CPSU). Mr Rebeiro received advice from the CPSU organiser on 11 February 2011. While that email refers to “constructive dismissal”, its tone is one of urgency, “...please do this immediately and we can discuss the ramifications in due course, and once we have their response”.
[26] While Mr Rebeiro explains that he was unable to bear the expense of going to the Supreme Court or engage a “ordinary lawyer”, at some unspecified time, he “noticed the lack of response [from his agent], however stayed with the appointed agent as my best option”. The nature of Mr Rebeiro’s circumstances could be variously described, but I am not satisfied that they can be defined as exceptional.
[27] I now turn to the action taken by Mr Rebeiro to dispute the dismissal.
[28] I have evidence that Mr Rebeiro contacted the CPSU on the day of his dismissal. I also have evidence that Mr Rebeiro received an email from Mr Hartley, the Employer’s Assistant Director of Human Resources on 15 February 2011 which, in relation to his termination of employment, concludes “if you have any questions regarding this matter please contact me”. I have no further evidence to indicate that Mr Rebeiro contacted Mr Hartley.
[29] Beyond this immediate documentary material, Mr Rebeiro repeats the same narrative made in his originating application that, “during 2011 and 2012” he experienced difficulty in getting information from his agent and had contacted an unnamed legal practitioner regulatory agency, the WAIRC and FWA. Apart from this early documentary evidence and the undated contact with various government agencies, I am unable to conclude that there is a compelling relationship between these actions and Mr Rebeiro disputing his dismissal, especially during a total period of approximately 16 months.
[30] I now turn to any prejudice, including any prejudice caused to the Employer by the delay in filing the application.
[31] The Employer asserts that it suffers the prejudice of Mr Hartley having left its employment in September 2011 but does not press this issue. The Employer submits that the criterion in paragraph 366(2)(c) of the FW Act should be considered in a “neutral” way; I have determined to adopt that course.
[32] With respect to the criterion of the merits of the alleged contravention of Part 3-1 of the FW Act, the matter has been the subject of an untested originating application and a response from the Employer which predominantly focussed on the fact that the application was out of time. However, the Employer states that Mr Rebeiro’s employment was terminated during his probationary period as he was deemed unsuitable for the position he was employed for. Similar to the “prejudice” criterion, I intend to adopt a neutral position concerning this element of subsection 366(2) of the FW Act.
[33] Finally, I have had regard to fairness between persons in a like position. Apart from the general proposition, the criterion in paragraph 366(2) of the FW Act is not directly relevant and similar to the criterion in paragraphs 366(2)(c) and (d) of the FW Act, I intend to adopt an impartial position as to this factor.
CONCLUSION
[34] Having considered the material provided by Mr Rebeiro and his submissions, I am unable to attribute to his circumstances the descriptor of exceptional. It is wholly understandable for Mr Rebeiro to be disappointed with his agent, however, that does not excuse his almost total inaction for a substantial period of approximately 14 months since the application was out of the preliminary timeframe of 60 days.
[35] Taking into account the criteria in paragraph 366(1)(b) of the FW Act and for the reasons above, I am not satisfied that exceptional circumstances exist to allow the application to be filed on 10 June 2012. Accordingly, the application will be dismissed and an order issued to this effect.
COMMISSIONER
Final written submissions:
Applicant: 26 June 2012.
Employer: 13 July 2012.
1 Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256
2 R v Kelly (Edward) [2000] 1 QB 198 at 208
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