Mr Carl Jaques v Rail Corporation New South Wales T/A Railcorp

[2012] FWA 8282

[2012] FWA 8282

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment

Mr Carl Jaques
v
Rail Corporation New South Wales T/A Railcorp
(U2012/10691 and U2012/11933)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 28 SEPTEMBER 2012

Termination of employment - harsh, unjust or unreasonable - Workplace Relations Act 1996 - extension of time - exceptional circumstances.

[1] Mr Jaques has sought an extension of time for lodgement of two applications for relief, pursuant to s.643(1)(a) of the Workplace Relations Act 1996 (the Act), in relation to the termination of his employment on the grounds that the termination was harsh, unjust or unreasonable.

[2] I heard this application by way of transcribed telephone link on 24 August 2012. Mr Jaques appeared for himself. Ms Belinda Henry, in-house solicitor, appeared for the Rail Corporation of New South Wales (Railcorp).

[3] Mr Jaques has made two applications. The first application was received in the Sydney Registry of Fair Work Australia (FWA) on 19 June 2012 (U2012/10691). The second application was received on 30 July 2012 (U2012/11933).

[4] In his first application, Mr Jaques identified 12 June 2008 as the date on which the termination of his employment took effect. In his second application he identified 20 January 2009 as that date.

[5] In its Form F3 Employer’s Response to the first application, Railcorp identified 20 January 2009 as the date the dismissal took effect. That is Railcorp’s position in relation to both applications. In either event, Mr Jaques lodged both applications more than three years after the 21 day statutory time limit expired.

[6] Mr Jaques outlined his reasons for seeking an extension of time in his second application. I have summarised them as follows:

• “A formal decision was not determined by the Transport Appeals Board on my dismissal effective 20th january 2009 as the matter was struck out as I did not attend hearing on the 20th march 2009...”



• “...RTBU failed to advise me of my required attendance [at the abovementioned hearing]...”



• “The RTBU failed to on my behalf to request an adjournment [for the abovementioned hearing]...”



• “I believe I had a reasonable expectation of success in gaining reinstatement of my employment...”



• “Railcorp should not benefit from the attempt they made in not allowing me recourse through the Transport Appeals Board...”



• “I was unaware of Fair Work Australia and possible remedies...”



• “My employment options were unfairly limited due to Railcorps actions...”

[7] Railcorp objects to any grant of extension of time on the following grounds:

• “The reason for the delay given by the Applicant is not adequate”



• “The Applicant was aware of the termination on 20 January 2009”



• “The Applicant disputed the termination by making an application to the TAB”



• “The Respondent would be prejudiced if Fair Work Australia allows the Applicant another approximately three and half years to make the application”



• “The application is without merit”



• “There are no other persons in a similar position to the Applicant”

[8] The background to these applications is that Mr Jaques was employed by Railcorp (or its predecessor) from 1996, initially as a carriage cleaner and later as a train guard. From 2005 until 20 January 2009, Mr Jaques had been on modified duties due to an injury sustained at work. The nature of these modified duties was not disclosed. In or about April 2008, Mr Jaques was due to return to work following approved leave. It is Railcorp’s contention that he failed to do so. Around this time Mr Jaques submitted a further request for leave of approximately six months so that he could return to Thailand with his pregnant Thai partner, who was experiencing health problems during pregnancy. This request was refused by Railcorp and Mr Jaques was instructed to return to work. Mr Jaques failed to do so. At this stage it appears that Mr Jaques had left Australia for Thailand, where he is still a resident.

[9] In or about May 2008 Railcorp advised Mr Jaques by letter that his contract of employment had ended for reasons of abandonment. Mr Jaques disputed that he had abandoned his employment and he, or a union representative on his behalf, lodged a complaint with the Transport Appeals Board (TAB). Mr Jaques attended the hearing of this application and in a decision dated 28 August 2008, the TAB made a finding that Mr Jaques had not abandoned his employment and that it had jurisdiction to hear his substantive appeal. In or around the time of this decision Railcorp began contending that Mr Jaques had breached its code of conduct by not obeying a reasonable request to return to work, amongst other things.

[10] In directions issued on 16 October 2008, and in light of the misconduct issues raised by Railcorp, the TAB ordered that Mr Jaques be reinstated, subject to him being placed on leave without pay. In subsequent directions issued on 4 December 2008, the TAB amended its order to read “...that immediately upon reinstatement, the appellant [Mr Jaques] is to be placed on leave without pay to 2 December 2008” and that “...the appellant will be suspended from work with pay from 3 December 2008 until a final outcome is reached by the Disciplinary Review Committee in this case”.

[11] On 20 January 2009, Railcorp purportedly terminated Mr Jaques employment for misconduct. In response, Mr Jaques or a union representative acting on his behalf, lodged a second complaint with the TAB. Mr Jaques did not attend the hearing of this application and, in a decision dated 20 March 2009, the TAB struck out Mr Jaques complaint.

[12] Other matters raised by Mr Jaques in his first application included the contention that he was dismissed because he was unable to return to normal duties and had long periods of time absent from work caused by family, financial and health problems.

[13] I have to decide whether or not an extension of time should be granted in accordance with the statutory criteria. The relevant principles for the exercise of FWA’s discretion in relation to applications of this kind can be found in the decision of Brodie-Hanns v MTV Publishing Ltd (1996) 67 IR 298, and are set out below:

“1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”

[14] I am not persuaded that the explanations provided by Mr Jaques for his failure to lodge his application within the time limits prescribed by the Act are acceptable. Mr Jaques removed himself from Australia to attend to personal matters. He has had health issues and family responsibilities to attend to. Those are matters for him, and I make no remark about the appropriateness of those decisions. However, despite those matters, Mr Jaques had an obligation, if he wished to proceed with an application for unfair dismissal, to lodge it within time, or if there was an acceptable explanation, as soon as possible. Even allowing for the confusing circumstances that existed at the time of his move overseas, Mr Jaques has made no attempt to lodge proceedings to dispute the termination of his employment and his explanations are not acceptable.

[15] Mr Jaques disputed his termination by way of a complaint to the TAB, however he has not actively contested his termination of employment since then.

[16] I am satisfied that if an extension of time is granted Railcorp would be significantly prejudiced. The period of time that has elapsed since the termination of Mr Jaques employment is substantial. I am satisfied and find that the obligation to defend these applications would be an unreasonable burden to Railcorp.

[17] The merits of the substantive applications are difficult to resolve in any application for an extension of time, but especially so in these circumstances. Merit was a neutral matter in my consideration of the application for an extension of time.

[18] There are no other persons affected by Mr Jaques application whose circumstances I am required to consider.

[19] The applications for an extension of time are refused in relation to both applications.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr C. Jaques the Applicant (via video-link in Thailand)

Ms B. Henry on behalf of the Rail Corporation New South Wales

Hearing details:

24 August, 2012.

Sydney.

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