Mr Chris Travers v Racing Queensland Limited
[2012] FWA 10120
•29 NOVEMBER 2012
[2012] FWA 10120 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Chris Travers
v
Racing Queensland Limited
(U2012/12486)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 29 NOVEMBER 2012 |
Extension of time.
[1] On 17 August 2012, Mr Christopher Travers made application for an unfair dismissal remedy under s.394 of the Fair Work Act 2012 (“the Act”). The application was subject to an unsuccessful conciliation conference conducted on 6 September 2012, and thereafter allocated to me for determination on 8 November 2012.
[2] The application was the subject of an objection by the Respondent, Racing Queensland Limited. The objection was made on the basis that the application had been made some 154 days after the statutory time an application must be made (as set out below).
[3] The application was subject to a hearing conducted on 20 November 2012. At the conclusion of the hearing I made the following decision in transcript, which I now publish (as follows). There are some changes, but only to affect a number of verbal infelicities, to aid fluency, and to incorporate the reference to the relevant legislative provisions immediately below.
Legislative provisions
[4] Section 394 of the Act relevantly provides:
394 Application for unfair dismissal remedy
...
(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.
[5] The Act requires that an application for an unfair dismissal application under section 394 of the Act must be made within 14 days of the dismissal taking effect or within some other period of time as the tribunal allows. In determining [...] what category of application it can allow in a further period of time, the Act stipulates that [...] the tribunal must take into account the reasons for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer; the merits of the application and the fairness as between the person and any other person in a similar position.
[6] In taking those matters into account the tribunal must then determine whether or not it is satisfied that there are exceptional circumstances relating to the application for extension of time; that is does the evidence as derived from the various matters that I have just [...] enumerated [...] give rise to any exceptional circumstances? That is the [...] the nature of the condition[ed] discretion that the tribunal [may exercise] for purposes of allowing a late application. It is not an open discretion. It is not a question of whether the tribunal should just simply allow an application for extension of time because of some passing concern or consideration. The discretion must be exercised in a particular framework having regard to particular matters, and then only so far as those matters to which regard is given generate exceptional circumstances.
[7] [T]urning from that statutory framework to the evidence in this particular matter, this application was lodged some 154 days after the time which it ordinarily ought to have been lodged, that is after the expiry, the 14 days from the date the dismissal took effect.
Circumstances of dismissal
[8] The Applicant has given [...] evidence in this matter that his own tenure as a steward was controversial in nature. He believed the [Respondent] prior to dismissal, was treating him in an unfair and unreasonable manner and he knew prior to dismissal that he would “not be there much longer”.
[9] [The Applicant also stated that he] also had access to legal advice before such time as the dismissal was given any effect [...]. He said, and I quote, “I knew what was going on,” unquote, in relation to the imminent nature of the pending dismissal. The Applicant was subsequently made redundant. He then [obtained] legal advice in relation to, as he put it, “Where do I stand?”
[10] [According to the Applicant], the view that was articulated, it appears, from his legal representative at the time was that he did not necessarily have a strong case. The Applicant appears to have made a judgment at that time as to the likelihood of success and economic or financial consequences of continuing or challenging the application and reached a decision that he should not do so.
[11] That is, in general [...] the Applicant had concerns at the time and, in fact, prior to the dismissal that the Respondent was acting in an untoward or unfair and unreasonable manner. [...] As an aggrieved person at the time of the application, ordinarily it ought to be expected that the Applicant would act on those concerns and the evidence [...] of the conduct [...] of the employer and act within the requisite time period to make the required application. The Applicant did not do so.
Subsequent events and s.394(3)(a) of the Act
[12] The Applicant states that his information about the nature of the claimed reason for the dismissal - being redundancy - was subsequently exposed [as a sham]. He appears to have observed that the job that he previously performed was being carried out by casuals and this was knowledge that only came to him subsequently.
[13] This knowledge appears to have taken shape and form within the Applicant’s mind in or about very early July of 2012 and at the time at which the Applicant again had access to legal advice. [The Applicant] again elected not to pursue or challenge the dismissal on the basis of again a balance in his view of the likelihood of success and the[...] financial implications of pursuing the matter.
[14] It was not until sometime later, perhaps in later July 2012, that he became increasingly motivated by [media] publicity given to the character and conduct of certain of the Respondent's officials that he finally decided to make the application.
[15] [The Applicant also] appears to have been [...] motivated [...] in around May [2012] to take similar steps but did not act upon them. But in any event after July [2012] and into August [2012] it would appear [the Applicant's] view about the conduct of the employer became sufficiently further heightened that he took the initiative himself in his own name and right to make application for the unfair dismissal.
[16] Making an application for an unfair dismissal is not a complicated affair and, as the Applicant himself has demonstrated in finally making this application in his own name [and under his own hand], he was always able and competent to make that application [...] at [an] early point, that is the point at which the dismissal was first of all given effect.
[17] [...] I should add that at the time of the dismissal itself not only did the Applicant have access to legal advice, he also had knowledge of the jurisdiction [...] and especially so in relation to the requirements of section s.394[(2)](a) of the Act.
[18] Therefore it cannot be said for his judgment to have been exercised within a statutory vacuum, as it were.
s.394(3)(b) of the Act
[19] In relation to the requirements of section 394(3)(b) of the Act I need to take into account whether the Applicant became aware of the dismissal after it had taken effect. [T]here is no evidence about any concerns about that matter being a relevant consideration. The Applicant was, it would appear, advised about the dismissal and no confusion seems to have arisen as to the date of effect.
s.394(3)(c) of the Act
[20] I must also take into account for the purposes of section 394(3)(c) of the Act the actions taken by the Applicant to dispute the dismissal or challenge the dismissal. The Applicant did not challenge the dismissal, though his evidence [was that he was] was motivated to do so out of concerns he held about the conduct and the rationale for the dismissal at the point of the dismissal, [and again] as it was reignited in May 2012 and [...] July 2012. They were all occasions on which his motivation was in place to challenge the dismissal, but that motivation never crystallised into actual conduct until [...] 17 August of 2012.
s.394(3)(d) of the Act
[21] In relation to the requirements of section 394(3)(d) of the Act I need to take into account the prejudice to the employer including prejudice caused by the delay. There is no evidence in this matter from either the Respondent and the employer of any direct kind that establishes any grounds on which I ought to draw any particular judgment from that particular statutory requirement and the matter therefore sits in neutral terms in relation to my overall judgment. Similarly so, the requirements of section 394(3)(e) of the Act require me to consider the merits of the application.
s.394(3)(e) of the Act
[22] As is the case in many of these matters in which extensions of time issues are agitated, the tribunal seldom has opportunity to investigate the substantive nature of the application or the merits of the application. That would require a full hearing in order to deal with all the nuanced material that is generated in proceedings of that kind and [...] to give both sides access to procedural fairness in order to present their case in their appropriate manner. As a consequence in this matter, the Applicant’s argument essentially is that the redundancy was a sham. His claim for doing so is that casuals were subsequently required to perform the work that he carried out.
[23] I make the point only at this juncture that it is not always the case that a position that might disappear means the work disappears. It’s the position that disappears. The work that is related to the position can in many occasions be continued to be performed in a different labour configuration. It can be split amongst other continuing employees [...]. It may be performed by other persons in a more flexible employment arrangement such as a casual arrangement. The upshot of my comments being that I can draw no [....] accurate view about the merits of the application. [A]gain, having not heard all the substantive evidence, [...] as I said earlier in respect of section 394(3)(d), in respect of 394(3)(e), I need to treat the requirements of the Act as affecting the application for extension of time only in a neutral manner.
s.394(3)(f) of the Act
[24] Finally, section 394 3(f) of the Act requires that I should consider the fairness as between the Applicant and any other persons in a similar position. This is not a case where there were a number of dismissals at the same time giving rise to evidence of a similar fact or kind, nor were there any matters of a like nature brought to my attention for some comparative purposes. So again that particular provision of the Act does not have bearing on the judgment which I need to make in these circumstances.
Conclusion
[25] [...] I am left with the Applicant's own evidence in relation to his decision-making. I have stepped through that evidence for the purposes of section 394(3) of the Act. It appears to me in a general sense that the Applicant was always motivated to challenge the application but never actually did so until a very late date. When he did so [he did so] on his own volition without legal representation. [...]
[26] In my view the circumstances the Applicant has mapped out as to the changing nature of his motivation and the reason for that motivation does not give rise to any exceptional circumstances [that justify allowing the application within a period other than that specified in s.394(2) of the Act].
[27] For that reason, I must now therefore dismiss the application under section 394 of the Act. [...]
SENIOR DEPUTY PRESIDENT
Appearances:
Mr C. Travers, for the Applicant
Ms G. Sharp, of HR Business Solutions, for the Respondent
Hearing details:
20 November 2012.
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