Mr Brendan Freeman v Litchfield Trading Company
[2010] FWA 1364
•19 FEBRUARY 2010
[2010] FWA 1364 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Litchfield Trading Company
(U2009/11886)
COMMISSIONER THATCHER | SYDNEY, 19 FEBRUARY 2010 |
Extension of time
[1] On 8 September 2009 Brendan Freeman made application to Fair Work Australia (FWA) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 on the basis that he was constructively dismissed from his employment with Litchfield Trading Company (the company) on 5 August 2009.
[2] In respect of applications for a remedy for unfair dismissal, s.394 provides:
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[3] Therefore the unfair dismissal application was lodged 20 days after the 14 day period. The application cannot proceed unless an extension of the 14 day period is allowed.
[4] There are important differences between s.394 and s.643 of the former Workplace Relations Act 1996, in relation to the time for the lodgement of unfair dismissal applications, namely:
(a) The limitation period within which applications must be lodged has been reduced from 21 days (under s.643) to 14 days:
(b) Under s.394 FWA may only exercise its discretion to allow a further period for the lodgement of applications where it is satisfied that there are ‘exceptional circumstances’ (taking into account prescribed considerations). No ‘exceptional circumstances’ limitation existed under s.643;
(c) Whereas under s.643 the principles established by the former Industrial Relations Court in Brodie-Hanns v MTV Publishing Ltd 1 provided guidance for the Commission, s.394 prescribes factors that FWA must take into account;
(d) Whilst the Brodie-Hanns principles were not exhaustive, 2 the factors in s.394(3) are an exhaustive list of the considerations that FWA must take into account.3
[5] The period within which an application under s.394 must be made is a limitation period with which an application must comply. The rationale for limitation periods was reviewed by the High Court in Brisbane South Regional Health Authority v Taylor. 4In that decision McHugh J stated:
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. … The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost[16]. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed[17]. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them[18]. … The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible[24].
In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is ‘to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.’[25] But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension. 5(footnotes omitted)
[6] Section 394(3) requires FWA to be satisfied that there are ‘exceptional circumstances’ to justify extending the 14 day time period. Therefore, for the unfair dismissal application to proceed, Mr Freeman must establish an exceptional case.
[7] In Baker v The Queen, 6the High Court considered the term ‘special reasons’ in the context of a legislative provision that prohibited a court from determining, in respect of prisoners who were serving sentences of life imprisonment and who were the subject of non-release recommendations, a minimum term and an additional term for the sentence unless ‘special reasons’ justified making the determination. In that decision, Gleeson CJ, when referring to the term ‘special reasons’ stated:
There is nothing unusual about legislation that requires courts to find ‘special reasons’ or ‘special circumstances’ as a condition of the exercise of power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors. 7
[8] In Maan v Minister for Immigration and Citizenship 8 the Full Court of the Federal Court considered the expression ‘exceptional circumstances’ in the context of a requirement in the Migration Regulations 1994 that the Minister cancel the visa of a prescribed class of person if the Minister was satisfied that the visa holder had not complied with a prescribed condition and the non-compliance was not due to exceptional circumstances. In their decision Dowsett, Greenwood and Collier JJ stated:
Although the expression ‘exceptional circumstances’ is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham Cornwall CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, 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. 9
[9] It should be clear from the above that the 14 days represents the legislatures judgement that the welfare of society is best served by unfair dismissal applications being lodged within that limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. The limitation period is a relatively short period of 14 days, underlining the legislature’s intention that applications under s.394 are dealt with expeditiously. Further, the discretion to allow an extended period can be exercised where FWA is satisfied there are exceptional circumstances, taking into account the considerations listed only in subparagraphs 394(3)(a) to (f).
Facts
[10] On 6 August 2009 (the day after the alleged constructive dismissal) Mr Freeman applied to the Darwin Magistrates Court for a personal violence order against a director of the company. Mr Freeman’s application included the words:
In the upcoming months I will be asking for monies owed for substantial unpaid overtime and will probably pursue an unfair dismissal claim.
[11] On 18 August 2009 Mr Freeman lodged a complaint electronically with the Fair Work Ombudsman. A copy of the complaint was not provided to FWA in these proceedings. In its written response dated 9 September 2009 to Mr Freeman, the Fair Work Ombudsman referred to his complaint as ‘concerning notice of termination, pro-rata annual leave and overtime.’ Further, in outlining the outcomes of its investigation of Mr Freeman’s complaints, the Fair Work Ombudsman made no reference to any claim of unfair dismissal.
[12] During the course of the Fair Work Ombudsman’s investigation Mr Freeman became aware that an application for unfair dismissal must be lodged with Fair Work Australia and he took action to lodge the application on 8 September 2009.
[13] I will now take account of each of the factors listed in s.394(3), given the evidence before FWA.
Reason for the delay (paragraph (a)
[14] Mr Freemen submits that he mistakenly lodged his unfair dismissal application with the wrong authority (the Fair Work Ombudsman) and that as soon as he realised the error he filed the correct application with FWA. He states:
… when I typed FWO into the google search engine I would expect to arrive at the FWO website only and that website when I read the words unfair dismissal/ unlawful termination I would expect that I was on the right website for that particular claim.
[15] The company submits that:
(a) the home page for the Fair Work Ombudsman does not in any way mention the words ‘unfair dismissal’ or ‘unlawful termination’;
(b) Cursory examination of the Fair Work Online website, the Fair Work Ombudsman website and the Fair Work Australia website reveals that FWA is the appropriate body to deal with unfair dismissal claims;
(c) A telephone call to either FWA or the Fair Work Ombudsman would have disclosed the correct venue for the complaint and the correct form;
(d) Free legal advice sessions are available in person or by phone with the Northern Territory Legal Aid Commission.
[16] As acknowledged by Mr Freeman during these proceedings, 10 there is no evidence to support Mr Freeman’s assertion that his electronic complaint to the Fair Work Ombudsman included a claim for unfair dismissal. Mr Freeman had ample opportunity subsequent to the issuing of the Directions for these proceedings on 30 November 2009 to obtain a copy of his complaint, even though he asserts that he requested a copy from the Fair Work Ombudsman about a week before 24 December 2009.11
When the applicant first became aware of the dismissal (paragraph (b))
[17] Paragraph 394(3)(b) is intended to address situations where the applicant fails to lodge the application within 14 days because they were unaware they had been dismissed until some time after the dismissal occurred. 12 This factor is not relevant to these proceedings which involve an allegation of constructive dismissal.
Action taken to dispute dismissal (paragraph (c))
[18] There is no evidence that prior to 8 September 2009 Mr Freeman took action to inform the company that he was making a claim for constructive dismissal. He lodged the complaint with the Workplace Ombudsman on 18 August 2009, i.e., 13 days after the alleged constructive dismissal.
Prejudice to employer (paragraph (d))
[19] There is no evidence of prejudice to the company and, more particularly, to suggest that the company’s capacity or ability to defend the application has been adversely affected by the delay.
Merits of application (paragraph (e))
[20] This factor is based on one of the Brodie-Hanns principles, 13 namely:
(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
[21] Therefore the Commission’s consideration of that principle remains relevant toFWA’s consideration of this factor.In considering that principle, the Commission considered that it must, without undertaking an in-depth analysis of the merits of the application, endeavour to make some assessment of its merits. In Kyvelos v Champion Socks Pty Limited 14 the Full Bench stated:
In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement. …
It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice ... 15
[22] On the material before FWA, I am not in a position to make findings of fact on this contested issue and therefore not in a position to conclude that the unfair dismissal application is without merit.
Fairness with other persons in similar position (paragraph (f))
[23] This is not a relevant factor in these proceedings.
Conclusion
[24] In my opinion, after taking into account the factors in paragraphs 394(3)(a) to (f), exceptional circumstances have not been established. I am not satisfied that there are exceptional circumstances such as to enable the exercise of the discretion to allow an extension of the timeframe for the making of Mr Freeman’s unfair dismissal application.
[25] The unfair dismissal application is not properly before Fair Work Australia and is dismissed. I order accordingly.
COMMISSIONER
Appearances:
Mr B Freeman on his own behalf
Ms C Emmett, for Litchfield Trading Company
Hearing details:
2010
Darwin
January 21
1 (1995) 67 IR 298.
2 As stated by Marshall J in Jennings v Salvation Army, 24 October 2003, 128 IR 366, 369 at para 10, they ‘were intended to guide the exercise of discretion and were not meant to be exhaustive principles.’
3 Explanatory Memorandum to the Fair Work Bill 2008, paragraph 1573.
4 [1996] 186 CLR at 541.
5 At pages 551, 552 and 553.
6 [2004] HCA 45 (1 October 2004).
7 At para 13.
8 [2009] FCAFC 150 (23 October 2009).
9 At para 51.
10 PN201.
11 PN132.
12 Explanatory Memorandum to Fair Work Bill 2008, paragraph 1574.
13 Explanatory Memorandum to Fair Work Bill 2008, paragraph 1573.
14 Print T2421, 10 November 2000, per Giudice P, Acton SDP and Gay C.
15 At para 14.
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