Mr Anthony Ilardo v Rail Corporation New South Wales T/A RailCorp

[2010] FWA 3892

Note: An appeal pursuant to s.604 (C2010/4042) was lodged against this decision - refer to Full Bench decision dated 13 September 2010 [[2010] FWAFB 6473] for result of appeal.

[2010] FWA 3892

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Anthony Ilardo
v
Rail Corporation New South Wales T/A RailCorp
(U2010/5271)

COMMISSIONER CARGILL SYDNEY, 25 MAY 2010

Extension of time.

[1] This decision arises from an application by Mr Ilardo (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Rail Corporation New South Wales (the respondent or RailCorp). The dismissal occurred on 31 July 2009. The application was lodged with Fair Work Australia (FWA) on 14 January 2010 which is outside the statutory time limit for such applications.

[2] The respondent objects to an extension of time being granted. It also raises an issue of jurisdiction, namely, that the applicant is prevented from bringing his claim by virtue of section 725 of the Act.

[3] The substantive matter was dealt with by an FWA Conciliator but did not settle. It then came before me on 23 April 2010 for the purpose of determining the extension of time issue.

[4] The applicant was represented by Mr Pearce of Counsel and the respondent by Mr Lloyd, solicitor. Both representatives appeared with permission.

[5] A witness statement made by the applicant was tendered and marked Exhibit Applicant 1. He was not required for cross-examination.

SUMMARY OF FACTS AND EVIDENCE

[6] The applicant commenced employment with the respondent in 1980. As at the date of his dismissal he was engaged as a Customer Service Attendant 2 at St Leonards Station.

[7] Allegations were made about the applicant’s conduct on 31 July 2008. A formal investigation was undertaken by the respondent. That investigation resulted in the applicant’s dismissal during a meeting on 31 July 2009. At the conclusion of the meeting the respondent’s representative asked the applicant if he wanted to appeal. Also at the meeting the applicant was provided with a letter of termination which is Attachment A6 to his statement.

[8] The letter informed the applicant that he had a right to appeal the termination decision to the Transport Appeals Board (TAB). The address for lodging the appeal and the time limit within which any such appeal must be lodged was provided. There was no reference to any other avenue of relief.

[9] The applicant’s union representative recommended that he file an appeal. Immediately following the termination meeting the applicant attended the union office for assistance in this regard. He completed the relevant forms and the notice of appeal, Exhibit Respondent 3, was lodged with the TAB that same day.

[10] On or about 10 August 2009 the applicant engaged legal representation for the purposes of the TAB proceedings. Those proceedings took place during October and November 2009.

[11] The applicant raises various issues about the credit-worthiness of one of the respondent’s witnesses and the lack of opportunity to respond to additional allegations about his conduct which had not been raised prior to his dismissal.

[12] At the conclusion of the TAB proceedings on 25 November 2009 the Chairperson announced that the decision was reserved but that the Board would endeavour to have it available from 10am on the following day.

[13] The applicant received the TAB decision by mail on 29 or 30 December 2009. The TAB dismissed his appeal. The applicant immediately attempted to contact his solicitors by phone however the office was closed until 5 January 2010 for the Christmas/New Year break.

[14] The applicant telephoned his solicitors on 5 January and personally delivered a copy of the TAB decision to them on 6 January as they had not received a copy from the TAB. On 7 January the applicant instructed his solicitors to obtain advice in relation to his options in contesting his dismissal.

[15] On 13 January the applicant attended a conference with his solicitor and Mr Pearce. He instructed his solicitor to lodge an unfair dismissal claim. The claim was lodged in this Tribunal on 14 January 2010.

[16] The applicant’s evidence is that, prior to the conference on 13 January, he believed that he could contest his dismissal only through the TAB and had no knowledge that he could make an unfair dismissal claim with FWA. In this he relied on the letter of termination and advice from the union. The applicant’s evidence is that he had no knowledge of employment law and no reason to believe otherwise.

[17] The applicant’s evidence is that, if the letter of termination had not mentioned appeals at all or, alternatively, if it had indicated that there was more than one option available to him, he would have sought appropriate advice. As it was, he sought representation in relation to the TAB proceedings only. Because those proceedings were already underway, that representation was required urgently.

[18] The applicant denies all of the allegations made against him.

SUBMISSIONS - GENERAL

[19] As indicated earlier in this decision there are two matters at issue. The application has been lodged out of time and, in this, the applicant bears the onus of persuading me that an extension of time should be granted. The second matter is that the respondent has raised a jurisdictional issue concerning section 725 of the Act. The respondent has the onus in making good this objection.

[20] Because of this, the submissions on behalf of the applicant in answer to the respondent’s issue were dealt with in reply. The respondent then replied on that point only.

APPLICANT’S SUBMISSIONS

[21] An outline of submissions on behalf of the applicant was provided prior to the hearing. This was marked Exhibit Applicant 2.

[22] Mr Pearce submitted that the phrase “within 14 days” in section 394(2) refers to working days rather than calendar days. In this he relied upon a decision of Vice President Lawler: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848 (CEPU decision).

[23] Mr Pearce submitted that, if the TAB decision had been made on 23 December 2009, the 14 day period would have elapsed on 18 January 2010. If the date of the decision was 30 December 2009 then the period would have elapsed on 20 January 2010. In either case the application was lodged with FWA within 14 working days of the date of the TAB decision.

[24] Mr Pearce submitted that the expression “exceptional circumstances” in section 394(2) required consideration of all of the circumstances. He submitted that, to be exceptional, such circumstances must be out of the ordinary or unusual but need not be unique, unprecedented or very rare. They can include a single exceptional matter, a number of such matters or a combination of ordinary factors which, taken together, are exceptional.

[25] Mr Pearce submitted that the combination of circumstances in this case is unusual and uncommon and, hence, exceptional.

[26] Mr Pearce submitted that the phrase “taking into account” in section 394(2) indicates a less prescriptive approach than the expression “have regard to”. He submitted that the phrase merely requires FWA to pay attention to the matter generally in the course of its intellectual processes. In this Mr Pearce referred to the following decisions: Metropolitan Water Board v St Marlyebone Assessment Committee [1923] 1 KB 86 @99; Ex Parte Yuco Pty Ltd (1978) Qd R 235; Clarke v Howard 42 FCR 369 @ 386; R v Hunt; ex parte Sean Investments Pty Ltd 53 ALJR 552 @ 554; R v Toohey ex parte Meneling Station Pty Ltd (1982) 153 CLR 327 @333; Tobacco Institute v NHMRC 142 ALR1; and, Edwards v Giudice (1999) 94 FCR 561 @ 564/5.

[27] Mr Pearce submitted that the discretion under section 394(2) is wider than under previous legislation.

[28] Mr Pearce submitted that the conduct of the respondent was prima facie misleading and unconscionable. It had directed the applicant to the TAB when it knew there was a right of access to FWA in respect of the dismissal. In this Mr Pearce referred to two decisions: State Transit Authority of New South Wales v Caine [PR945973] (STA decision) and Davies v State Rail Authority of New South Wales [Print T2592] (Davies decision). Mr Pearce submitted that the respondent’s conduct was further unconscionable because of earlier criticism which I made in the STA matter at first instance: Caine v State Transit Authority of New South Wales [PR941069] (Caine’s decision).

[29] Mr Pearce submitted that there was an acceptable and reasonable explanation for the delay in lodgement in this matter. He referred to comments at paragraphs 49 and 50 of Caine’s decision and submitted that those comments applied with even greater force in this matter.

[30] Mr Pearce noted that the applicant had immediately contested his dismissal. He further noted that, although the respondent will suffer some prejudice, this would not be great. Mr Pearce submitted that the applicant’s claim has considerable merit both as a matter of substance and on issues of procedural fairness.

RESPONDENT’S SUBMISSIONS

[31] An outline of submissions on behalf of the respondent was provided prior to the hearing. It was marked Exhibit Respondent 1. Mr Lloyd asked that the outline be read in conjunction with the respondent’s objection to the applicant’s claim which was filed with FWA on 1 February 2010. The objection, which annexes the TAB decision, was marked Exhibit Respondent 2.

[32] Mr Lloyd submitted that the applicant is prevented from bringing his claim by virtue of section 725 of the Act. Reference is made to the Explanatory Memorandum for the Fair Work Bill, at paragraphs 2707 and 2710-2711, which states that the relevant provisions are intended to prevent “double-dipping” when there are multiple potential remedies in respect of a dismissal.

[33] Mr Lloyd submitted that section 732 of the Act applied to the applicant. The applicant’s TAB appeal is “an application or complaint under another law” within the meaning of section 732. The TAB appeal had not been withdrawn and did not fail for want of jurisdiction. It is noted that the TAB’s jurisdiction had not been excluded by Part 1-3 of the Act.

[34] Mr Lloyd provided copies of New South Wales legislation relevant to the TAB, the Transport Appeal Boards Act 1980, an excerpt from the Transport Administration Act 1988 and the Transport Administration (Staff) Regulation 2005. He also referred to the Interpretation Act 1987.

[35] Mr Lloyd submitted that the applicant’s present claim is an application of the kind described in section 729 of the Act. As section 732 also applies to the applicant the present claim is statute barred by section 725.

[36] Mr Lloyd submitted that there was a fundamental difference between the wording of section 732 and section 170HB of the Workplace Relations Act 1996 (WR Act). Section 170HB required that, in order to be statute barred, the “prior proceedings” needed to have alleged that the dismissal was “harsh, unjust or unreasonable” or “unlawful”. Section 732 contained no such prescription.

[37] As a consequence of this fundamental change, decisions such as the STA decision and State Rail Authority of New South Wales v Duckworth [PR920991] (Duckworth decision), which had found that TAB proceedings were not “prior proceedings” of such a nature, were no longer relevant.

[38] In his reply Mr Lloyd noted that section 725 had not followed straight upon section 170HB. Section 672 of the “Workchoices” WR Act came in between and was in different terms to section 170HB. He submitted that, as a consequence, it would be wrong to approach the issue simply on the basis of any difference between the wording of section 170HB and the present provisions.

[39] The respondent submitted that the applicant is also prevented from bringing his claim because of the operation of the principle of res judicata. It is submitted that the TAB proceedings are substantially identical to the applicant’s present claim and judgement has been entered in those proceedings. The applicant is barred from bringing any other proceedings in respect of the same cause of action: Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510 @ 512.

[40] It is submitted that the applicant is attempting to re-agitate matters already dealt with by the TAB including claims of alleged harshness and procedural unfairness. Reference is made to pages 26 and 27 of the Transcript of the TAB proceedings and the findings at paragraph 50, point 13 of the TAB decision that the applicant had been afforded due process and natural justice.

[41] The respondent submitted that issue estoppel also prevented the applicant from proceeding with his present claim as he is bound by the findings and decision of the TAB. Alternatively it is submitted that issue estoppel must operate to prevent FWA from conducting a hearing de novo.

[42] The respondent also submitted that the applicant’s claim amounts to an abuse of process and should be declined on that basis.

[43] The respondent made a number of submissions which directly addressed the extension of time issue. It submitted that, contrary to the position put on behalf of the applicant, the 14 day time limit elapsed on 14 August 2009 not on some date in January 2010. Hence the application had been lodged 152 days out of time.

[44] Mr Lloyd submitted that the reference to “days” in section 394(2) was to calendar days not working days. He noted that there was a definition of “working days” in section 12 and that the phase appeared in various places in the Act. It followed that “days” is different to “working days” and must mean calendar days. Mr Lloyd noted that the CEPU decision dealt with a different context and, further, had been made under the WR Act. In addition Mr Lloyd noted that the Duckworth decision had made it clear that TAB proceedings were not part of the respondent’s internal disciplinary process.

[45] Mr Lloyd submitted that there had been a narrowing of the statutory test for extensions of time under the Act compared with the test under the WR Act. In this he referred to two decisions: Shields v Warringarri Aboriginal Corporation[2009] FWA 860; and Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery[2010] FWA 1394.

[46] The respondent submitted that Caine’s decision should be distinguished as it had been made under earlier legislation where both the time limit and the discretion to extend were wider than under the present Act. In addition it submitted that FWA should be sceptical of any claim of ignorance of the existence of unfair dismissal laws. Reference is made to Wemyss v Mission Australia Employment Services[2010] FWA 1798.

[47] Mr Lloyd submitted that, in any event, the applicant had been represented at the termination meeting by his union and had engaged experienced solicitors within the 14 day time period. It was noted that there is no claim that the delay in lodgement is attributable to representative error.

[48] The respondent rejected any suggestion that it had acted unconscionably or had misled the applicant. It denied directing any appeal action solely to the TAB. It submitted that TAB appeal rights are likely to be less well-known than unfair dismissal rights and, consequently, it was reasonable that the respondent bring them to the attention of relevant employees. Further, there is nothing in the termination letter which indicates that the TAB is the only avenue for redress.

[49] It is submitted that the Davies, STA and Caine decisions do not support the applicant’s case and, in any event, are of limited use in this matter.

[50] It is noted that the applicant became aware of the dismissal on the day it took effect. It is further noted that the applicant took action to contest his dismissal by way of the TAB proceedings. The respondent submitted that this is a factor which should weigh strongly against an extension of time being allowed. The applicant should not be permitted to revert to a different legislative scheme just because he is dissatisfied with the outcome of the earlier proceedings. Further it is submitted that the applicant could have discovered that outcome at a time earlier than when he received the written decision of the TAB. Reference is made to the TAB Chairperson’s closing comments at the hearing.

[51] The respondent submitted that it will be prejudiced by an extension of time. It will suffer additional prejudice as the matter has already been heard and determined by the TAB.

[52] The respondent disputes that the applicant’s claim has merit. In this, regard should be had to the outcome of the TAB proceedings. Further, the claim is jurisdictionally incompetent.

[53] The respondent submitted that allowing the applicant to bring his claim would result in unfairness. Railcorp employees have access to a greater range of dismissal remedies than other employees. It is noted that, if the applicant had been covered by the Industrial Relations Act 1996 (NSW), he would be unable to bring a claim under that legislation if he had already brought TAB proceedings.

APPLICANT’S SUBMISSIONS IN REPLY

[54] Mr Pearce submitted that the context in which the applicant had been asked by Railcorp’s representative if he wanted to appeal the dismissal clearly directed the applicant to the TAB alone.

[55] Mr Pearce noted that, despite the concluding comments in the TAB proceedings, there is no evidence as to whether or not the result was made available any earlier than the Board’s written decision in late December.

[56] Mr Pearce noted that the respondent did not suggest that the proceedings before the TAB had concerned allegations that the applicant’s dismissal was harsh, unjust or unreasonable howsoever described. Nor had it contested the conclusions in the STA or Duckworth decisions in this regard. He submitted that, whatever submissions he may have made to the TAB, the claim was not that the termination was harsh, unjust or unreasonable. Mr Pearce noted that the applicant’s claim with FWA did allege that the termination was harsh, unjust or unreasonable: section 385 of the Act refers.

[57] Mr Pearce referred to section 732 and, in particular, the words “application or complaint” and “in relation to the dismissal”. He submitted that the phrase “in relation to” had to be construed in the context of the legislation and in this regard be referred to Pearce’s Statutory Interpretation in Australia, 6th edition, paragraph 12.7. Mr Pearce submitted that the “application or complaint” in section 732 must be of a type that may be made under the Act. The TAB matter was not of such a nature.

[58] Mr Pearce submitted that such a view was supported by the terms of the Explanatory Memorandum. He noted that the Explanation Memorandum did not suggest that previously existing rights in relation to public transport employees were being removed. Mr Pearce submitted that it could be assumed that Parliament was aware of the STA and Duckworth decisions. Any intention to overturn those decisions would have required explicit reference in either the legislation or the Explanatory Memorandum.

[59] Mr Pearce rejected the respondent’s submission that the principle of res judicata applied to exclude the claim. He submitted that such a principle was only applicable to determinations of courts: Blair v Curran (1932) 62 CLR 464.

[60] Further, in relation to both res judicata and the question of issue estoppel, Mr Pearce submitted that, if such principles did apply, it would only be in relation to the ultimate question before the TAB which was whether or not the applicant was guilty of the charges against him. In this regard he relied on the authority of Commonwealth of Australia v Sciacca (1988) 178 ALR 279 @ 281.

[61] Mr Pearce also submitted that it was doubtful whether issue estoppel arises in relation to administrative tribunals such as the TAB or indeed this tribunal and its predecessors. Mr Pearce referred to the decision of Re Cake and Pastry Employees Association of Australia (1992) 45 IR 107, to various decisions referred to therein, and to the decision of the Federal Court of Australia in Blagojevch v Australian Industrial Relations Commission (2000) 98 IR 32 @ 36.

CONCLUSIONS

[62] As indicated earlier there are two matters at issue which fall to be determined in this decision; one a question of jurisdiction and the other a question of whether to extend time. I intend to deal with the issue of jurisdiction first as, if the applicant’s claim is statute barred, there is no purpose served by me considering whether or not to extend time. I appreciate that, in other circumstances, it may be a better approach to decide the extension of time issue first: Layton v North Goonyella Coal Mines Pty Ltd [2007] AIRCFB 713.

[63] Section 725 of the Act reads as follows:

“General rule

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.”

[64] There is no dispute that the applicant’s present claim is an unfair dismissal application under section 394(1) of the Act and consequently section 729 applies to it. That section is in the following terms:

“Unfair dismissal applications

(1) This section applies if:

(a) an unfair dismissal application has been made by the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) failed because FWA was satisfied that the dismissal was a case of genuine redundancy.

(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.”

[65] The effect of section 725 is that the applicant is unable to bring his present claim if any one of sections 726 to 732 also applies. The only one of those sections which needs to be considered in the present circumstances is section 732. It provides as follows:

“Applications and complaints under other laws

(1) This section applies if:

(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application or complaint has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction.

(2) An application or complaint under another law is an application or complaint made under:

(a) a law of the Commonwealth (other than this Act); or

(b) a law of a State or Territory.

(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.”

[66] It is clear that the applicant’s appeal to the TAB has been made under another law, in this case, of the State of New South Wales. The question is, is it an application or complaint in relation to his dismissal? I note that there is no definition of “application or complaint” in the Act. The phrase is set out in section 12, however, it merely refers back to section 732.

[67] The notice of appeal, Exhibit Respondent 3, does not contain the word “application” or the word “complaint”. However, the definition of “application” in the Macquarie Dictionary, 2^nd edition, relevantly includes “the act of applying” and “a written or spoken request or appeal”.

[68] In my view, on its plain and ordinary meaning, the applicant’s notice of appeal to the TAB should be characterised as an application. It is clearly in relation to his dismissal. The claim was not withdrawn by the applicant nor did it fail for want of jurisdiction. It follows that it is an application to which section 732 applies.

[69] I do not accept that the legislation requires that, in order that a subsequent claim is barred from being made, both claims have to be of the same kind. The reference in section 725 to “of a kind” is not expressed in such a fashion.

[70] As I have found that the applicant’s appeal to the TAB is an application to which section 732 applies, by virtue of the operation of section 725, he is unable to make his present claim under section 394. In the light of this conclusion, there is no requirement for me to consider the other contentions put forward by the respondent in relation to jurisdiction or the extension of time issue.

[71] The applicant’s claim is statute barred and must be dismissed. I order accordingly.

COMMISSIONER

Appearances:

J. Pearce of Counsel, with A. Crabb solicitor, for the applicant.

D. Lloyd, solicitor, with M. Alexander, solicitor, for the respondent

Hearing details:

2010.

Sydney.

April 23.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR997355>