Mr Adrian Wilson v Allworks (WA) Pty Ltd

[2013] FWC 4707

[2013] FWC 4707

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Adrian Wilson
v
Allworks (WA) Pty Ltd
(C2013/702)

COMMISSIONER CLOGHAN PERTH, 5 AUGUST 2013

Application to deal with contraventions involving dismissal.

[1] This matter concerns whether exceptional circumstances existed to allow Mr Wilson to file a general protections disputes application in the Commission four (4) days out of time.

[2] Mr Wilson claims a workplace injury and “representative error” in not filing the application within time. With respect to “representative error”, Mr Wilson claims that his wife, Mrs Wilson, made a genuine mistake about the date he was dismissed in organising a meeting with a lawyer to discuss his dismissal.

PROCEDURAL BACKGROUND

[3] On 14 May 2013, Mr Adrian Wilson (Applicant) made application to the Fair Work Commission (Commission) to deal with a general protections dispute in which he alleged that he had been dismissed in contravention of Part 3-1 General Protections of the Fair Work Act 2009 (FW Act).

[4] The application is made pursuant to s.365 of the FW Act.

[5] Mr Wilson alleges that he was dismissed in contravention of Part 3-1 of the FW Act by Allworks (WA) Pty Ltd (Employer).

[6] In his application, Mr Wilson’s legal representative states that Mr Wilson was dismissed on 19 April 2013.

[7] The Employer denies that Mr Wilson was dismissed in contravention of Part 3-1 General Protections of the FW Act, and furthermore, objects to the application being dealt with by the Commission as it was lodged out of time.

[8] As the application was not made within 21 days after Mr Wilson’s dismissal took effect, it is necessary to determine whether exceptional circumstances existed to allow the application to be filed on 14 May 2013.

[9] In determining whether exceptional circumstances exist, it is necessary to take into account the criteria in subsection 366(2) of the FW Act which are as follows:

(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.

[10] I advised the parties that I would deal with the jurisdictional objection of the application being filed out of time “on the papers” with the opportunity for them to make supplementary oral submissions. Procedural directions were issued on 23 May 2013. Written submissions were received. Both the Applicant and the Employer requested to make oral submissions.

[11] Having considered the written material provided as a result of the procedural directions and oral submissions, this is my decision and reasons for decision on whether exceptional circumstances existed to allow the Applicant to file his application on 14 May 2013.

APPLICANT’S SUBMISSION

[12] In his application, Mr Wilson’s legal representative states:

● on 6 May 2013, Mrs Wilson, the Applicant’s wife, sought an appointment for the Applicant with a lawyer for legal advice relating to his dismissal;

● when making the appointment, “Mrs Wilson was of the mistaken belief that the Applicant’s dismissal was 26 April”;

● an appointment was made for Mr Wilson to meet with the lawyer on 14 May 2013;

● at the meeting with the lawyer on 14 May 2013, it was realised that the application was “out of time”;

● the application was filed on 14 May 2013.

[13] The application also stated that the Applicant “seeks leave to provide further particulars as to exceptional circumstances at a later date”.

[14] Mr Wilson’s written submission included a sworn affidavit from Mrs Wilson in which she states:

“On Monday 6 May 2013, my Husband asked me to contact a lawyer to obtain legal advice regarding his dismissal. He did not do this as he had been seriously injured at work.”

[15] Mrs Wilson contacted the Law Society and was given the name of Mr Peter Nevin of Taylor Smart. Mrs Wilson contacted Taylor Smart and was advised that Mr Nevin was on leave until 13 May 2013 but could be contacted by email. An appointment was made for 14 May 2013. Mrs Wilson emailed Mr Nevin and advised him that her husband was dismissed on 26 April 2013. Mrs Wilson’s affidavit states:

“It was a genuine mistake, and I have no explanation for it.”

EMPLOYER’S CASE

[16] The Employer asserts that this is not a case of representative error as claimed by the Applicant.

[17] The Applicant was responsible for a delay of 17 days prior to Mrs Wilson reportedly communicating to Mr Nevin her mistaken view that her husband had been dismissed on 26 April 2013.

[18] The Applicant took no action to dispute his dismissal for a period of 17 days after the dismissal.

[19] There is no medical evidence to demonstrate that the Applicant was incapable of instructing a legal representative.

[20] There is prejudice to the Employer in relation to cost and inconvenience of defending proceedings which lacks merit.

[21] It would be unfair to allow the Applicant to file the application out of time where others have been denied the discretion in more valid circumstances.

CONSIDERATION

[22] In my view, consideration as to whether there are exceptional circumstances to allow an extension of time to file the application out of time can be simplified as follows.

[23] Mr Wilson commenced employment with the Employer on 18 February 2013.

[24] On 21 March 2013, the Applicant sustained a workplace injury.

[25] On 8 April 2013, Mr Wilson was certified unfit for work for one week.

[26] Following the workplace injury, Mr Wilson was absent from work for one week and then returned to work on light duties.

[27] After being reviewed by his orthopaedic surgeon, Mr Wilson was absent from work from 8 April to 12 April 2013.

[28] Mr Wilson returned to light duties on 15 April 2013.

[29] On 19 April 2013, Mr Wilson was requested to attend a meeting with the Employer’s Plant and Project Manager concerning his performance at the Coogee work site. Ms Casey Sarich was also present at the meeting.

[30] In his application, the Applicant’s representative states:

“The Applicant was advised that his employment was terminated with immediate effect.” [19 April 2013]

[31] On 22 April 2013, the Employer provided Mr Wilson with a letter terminating his employment.

[32] The correspondence is short and straightforward and reads as follows:

“As of 19th of April 2013, 5:30 pm, your employment with Allworks WA Pty Ltd has been terminated.

Your workers compensation pay will be continued until you are fit for work, and are signed off from your doctor.”

[33] On 1 May 2013, Mr Wilson was reviewed by his orthopaedic surgeon and provided with a Workers’ Compensation progress medical certificate. Mr Wilson was certified unfit for work from 1 May to 1 July 2013. The clinical finding is described as:

“EXAMINATION: painful swollen left foot, altered sensation 3x3cm are anterior and distal to medial malleolus at site of impact, limp. DIAGNOSIS: Left intermediate cuneiform avulsion fracture”

[34] On 6 May 2013, Mr Wilson asked his wife to contact a lawyer, “because I was still suffering the effects of my foot injury. At the time, I was spending the majority of my time on the couch with my foot elevated and in a moon boot. I was in a lot of pain when I walked”.

[35] Mrs Wilson was referred to Mr Nevin who was on leave until 13 May 2013 but could be contacted by email. Contact by email was made by Mrs Wilson and an appointment made for 14 May 2013.

[36] Mrs Wilson makes a sworn statement that in email correspondence with Mr Nevin, she mistakenly states that her husband was dismissed on 26 April 2013. This error came to light when Mr Wilson produced his letter of termination to Mr Nevin on 14 May 2013.

[37] The application was filed on 14 May 2013.

[38] I now turn to the criterion in subsection 366(2) of the FW Act.

(a) Reason for the delay

[39] Mr Wilson is required to file his application within 21 days after the dismissal took effect.

[40] I find the date of his dismissal 19 April 2013 for the following reasons:

● the content of his letter of termination of employment is unequivocal;

● the Employer’s submission, which is confirmed in the Applicant’s application, that he was informed on 19 April 2013 that his employment was terminated with immediate effect; and

● in Mr Wilson’s application, it states that he was dismissed on 19 April 2013.

[41] From 19 April 2013, Mr Wilson had until 10 May 2013 to file his application.

[42] There is nothing in the Applicant’s submissions from 20 April to 1 May 2013 which particularises why Mr Wilson was unable to file his application or seek legal advice contesting this dismissal.

[43] On 1 May 2013, Mr Wilson was sufficiently able to attend an appointment with his orthopaedic surgeon. This involved presumably travelling from his home in Quinns Rock to Joondalup Health Campus.

[44] From 1 May until 6 May 2013, I have nothing in the Applicant’s submission why Mr Wilson was unable to file his application or seek legal advice contesting his dismissal.

[45] At this point, I interpose to address the submission that he was “suffering the effects of my foot injury [and] spending the majority of my time on the couch [as I was] in a lot of pain when I walked”.

[46] While I do not dispute that Mr Wilson was in pain, this submission must be contrasted with the fact that:

● for two periods immediately after the workplace injury, Mr Wilson was able to attend work and carry out “light duties”;

● he was at work at the time he was verbally dismissed;

● he was capable, notwithstanding the pain, to attend his orthopaedic surgeon at some distance from his home on 1 May 2013; and

● on 14 May 2013, some four (4) days after he should have filed his application, Mr Wilson was able to attend the premises of his lawyer.

[47] Finally, I have no documentation which clinically demonstrates that Mr Wilson’s foot injury impaired him to such an extent that he was physically or cognitively incapable of making an application to the Commission.

[48] Where applicants rely upon medical conditions as grounds for a delay in filing an application, self reporting is not sufficient. Further, there must be a causal connection between the medical condition and an inability to file a relatively simple application to the Commission. The application to the Commission, stripped of factual details such as name, name of employer etc, requests information on three matters:

● what were the reasons, if any, for your dismissal;

● state which section(s) of the FW Act you think the employer allegedly contravened by dismissing you; and

● describe the alleged contravention(s).

[49] I am not satisfied that the Applicant’s foot injury was so exceptional/unusual or abnormal that it prevented Mr Wilson from taking action to make application to the Commission alleging that his Employer breached Part 3-1 of the FW Act.

[50] I now turn to the second “limb” of Mr Wilson’s submission that of “representative error” as a reason for the delay.

[51] While it is possible that a wife may “represent” a husband, it can be only understood in context.

[52] The context in this particular application as described by Mr Wilson in his affidavit is as follows:

“On Monday 6 May 2013 I was speaking with my wife, Mrs Vicki Jo Wilson, about my dismissal and I asked her to contact a lawyer for me so I could get legal advice.”

[53] What I have before me is one person in a domestic arrangement asking another person to make a telephone call on their behalf. There is nothing unusual in this request and it most probably occurs regularly throughout Australia every day where one partner asks another to make a telephone call, pay a bill or collect something on the way home.

[54] While the Commission is advised, periodically that a family member is representing the applicant, that representation is more akin to what is described as a “support person”.

[55] Section 596 of the FW Act provides the Commission with the discretion to give leave for lawyers and paid agents to represent persons in matters before the Commission. Leave of the Commission is not required for employees of the employer or employees of an employer organisation. Similarly, leave is not required for employees and members of an employee organisation.

[56] This type of representation outlined in paragraph [55] is described in paragraph 2292 of the Explanatory Memorandum to the Fair Work Bill 2008 as “legal and other professional representation” (my emphasis). It is only this group of professional representatives, other than lawyers and paid agents, who have the right to “represent” a party in a matter, such as this, in the Commission.

[57] In my view, the principle of representative error extends to lawyers, paid agents and other professional representatives. It does not extend to persons, be they family, friends or acquaintances who are not, and do not, hold themselves out to be professional representatives with a demonstrable capacity in matters before the Commission.

[58] I do not find that Mrs Wilson was a representative for the Applicant and upon which the Applicant, Mr Wilson, can rely upon in support of his claim of representative error.

[59] The simple facts are that Mr and Mrs Wilson were in a marital relationship and one asked the other to do something. This was not an instance of one party “representing” another in litigation, but a wife making enquiries at the request of her husband.

[60] Notwithstanding my finding immediately above, the Full Bench in Clark v Ringwood Private Hospital [1997] AIRC 344 sets out the necessity of going to the facts when considering the delay in filing the application. Further, if representative error is the reason for the delay, it is only one factor that has been considered pursuant to s.366 of the FW Act.

[61] The facts according to the documentary material I have are that Mr Wilson, for 17 of the 21 days, did not progress his claim that the Employer had contravened Part 3-1 of the FW Act. On the 17th day, he asked his wife “to contact a lawyer so I could get legal advice”.

[62] Mrs Wilson contacted the Law Society and was referred to a lawyer who happened to be on leave. In an email on 6 May 2013, Mrs Wilson states that she advised Mr Nevin that her husband was dismissed on 26 April 2013.

[63] While Mrs Wilson may have made a genuine mistake, the fact is that the letter of termination is unequivocal and unambiguous. Further, the correspondence is addressed to the Applicant and only Mr Wilson could have advised his wife of the date of his termination of employment, either verbally or by showing her the letter.

[64] In summary, I find the reasons for the delay in the Applicant not filing the application within 21 days are that for the first 17 days, on the material I have been given, he did nothing to activate his claim. The second reason was a sequence of events, which included Mr Nevin being on leave and Mrs Wilson, for some unexplained reason, advising the lawyer that her husband was dismissed on 26 April 2013.

[65] Not pursuing a claim that the Employer contravened Part 3-1 of the FW Act for 17 days was not exceptional circumstances but a choice made by the Applicant. For the remaining period, a legal representative on leave, is not exceptional nor is a mistake. Unfortunately, mistakes are an ordinarily occurrence of daily life.

[66] Mr Howlett put to the Commission the proposition that pursuant to ss.117(1) of the FW Act, an employer cannot terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination which cannot be before the day the notice is given. There is no dispute that Mr Wilson was verbally terminated on Friday 19 April 2013 and this was formalised in correspondence terminating his employment on Monday 22 April 2013.

[67] In view of the fact that Mr Wilson was not terminated in accordance ss.117(1) of the FW Act, Mr Howlett constructs the argument that if he had been terminated on 22 April 2013, then his application would need to be filed on 13 May 2013. The application was filed on 14 May 2013, consequently, it was only one (1) day late. As Mr Wilson consulted with Mr Nevin on 14 May 2013 and the application was filed on the same day, “Mr Nevin couldn’t have done any better than that” 1.

[68] Mr Howlett puts two further arguments.

[69] First, if the Employer had given Mr Wilson the opportunity to work out the statutory required one week’s notice on either 19 or 22 April 2013, then Mr Wilson’s employment would have ceased on 26 or 29 April 2013. Accordingly, if this situation had occurred, the application on 14 May 2013 would have been within time. The reality is that the Employer did not require Mr Wilson to “work out” his notice, and consequently, this is not a “live” issue.

[70] Secondly, Mr Howlett puts the argument that, at the time Mr Wilson was terminated, it is a requirement of ss.84AB(1) of the Workers Compensation and Injury Management Act 1981 that:

“an employer must not dismiss a worker to whom section 84AA (1) applies unless the employer has given to the worker and to WorkCover in accordance with subsection (2), a notice of intention to dismiss the worker”.

[71] The notice of intention to dismiss the worker and to WorkCover must be not less than 28 days before the dismissal is to take effect.

[72] Mr Howlett’s arguments raise legitimate questions in relation to the manner in which Mr Wilson was dismissed. However, if there have been deficiencies in the actions of the Employer, these appear to have been accepted by Mr Wilson as he has not been back at work, and asserts in his application, that he was dismissed by the Employer on 19 April 2013. Further, in making the application, Mr Wilson knew it was out of time.

[73] Further, the Full Bench of the Commission in both Kyvelos v Champion Socks Pty Ltd (Print T2421) and Layton v North Goonyella Coal Mines [2007] AIRCFB 713 (Layton) have endorsed the principle that, “when such contested points arise they be dealt with only after the Commission has allowed lodgement” 2.

(b) Any action by the person to dispute the dismissal

[74] Without repeating the details, the first action of the Applicant was after 17 days to ask his wife to contact a lawyer “so I could get legal advice” and “discuss his dismissal”.

[75] One interpretation of the Applicant’s affidavit is that Mr Wilson requested his wife to contact a lawyer for the purposes of making an application alleging that the Employer had breached Part 3-1 of the FW Act. An alternative view is that the Applicant wanted to ‘discuss his dismissal” in the broadest sense with no particular purpose or with multiple purposes in mind. Alternatively, Mr Wilson may have been seeking advice from his lawyer as to what possible courses of action he could pursue.

[76] In the absence of the emails by Mrs Wilson to Mr Nevin, I am unable to form any view on Mr Wilson’s purpose in seeking legal advice. However, I observe that 17 days into the 21 day period for filing the application, the Applicant’s only action was requesting his wife to contact a lawyer to “discuss his dismissal”.

(c) Prejudice to the employer (including prejudice caused by the delay)

[77] It is not uncommon for employers to submit, as this employer has, that it is prejudiced by the filing of the application out of time. The prejudice occurs because of time expended on the application, expenses, disruption to business operation and an application that is without merit.

[78] It is also not uncommon for applicants to submit that, given the short period out of time (in this case four (4) days), no prejudice is suffered by the employer.

[79] While I am inclined to agree with the Applicant’s submission, I have expressed previously my view that a lack of prejudice suffered by the Employer is not a satisfier of exceptional circumstances, rather it does not dissatisfy exceptional circumstances.

[80] For the above reasons, I have adopted a neutral position when considering prejudice to the Employer in the overall context of exceptional circumstances.

(d) Merits of the application

[81] The Applicant was employed for a period of two (2) months and claims that the Employer dismissed him for reasons associated with his workplace injury.

[82] In contrast, the Employer alleges that Mr Wilson was dismissed for reasons relating to his conduct and performance, and denies that it was related to his workplace injury.

[83] Notwithstanding the reverse onus of proof in hearings into such applications, the plain fact is that I have insufficient material, and the lack of tested evidence, to form a view as to the merits of the application.

[84] For the reasons above, I again adopt a neutral view as to the merits of the application in the overall context of whether there are exceptional circumstances to allow an extension of time to lodge the application.

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

[85] The Applicant submits that the circumstances are unusual for a comparison with a person in a like position to be made.

[86] The Respondent submits that to allow an extension of time would put the Applicant in a more advantageous position compared to persons with “more valid reasons”.

[87] I intend to adopt a neutral view with respect to this criterion as it relates to exceptional circumstances.

CONCLUSION

[88] Having considered the written submissions, attached documents, oral submissions and the provisions of the FW Act, I am not satisfied, for the reasons outlined above, that exceptional circumstances existed to allow, pursuant to s.366(2) of the FW Act, Mr Wilson’s application to be filed out of time.

[89] An order dismissing the application is attached to this Decision and Reasons for Decision.

COMMISSIONER

Appearances:

Mr Howlett of counsel for the Applicant.

Ms Cordina of counsel for the Respondent.

Hearing details:

2013:

Perth,

1 July

 1   Transcript PN37

 2   Layton paragraph [45]

Printed by authority of the Commonwealth Government Printer

<Price code C, PR538948>