Mr George Knight v Epworth HealthCare T/A Epworth Hospital Richmond

[2015] FWC 510

[2015] FWC 510

FAIR WORK COMMISSION

DECISION

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

Mr George Knight
v
Epworth HealthCare T/A Epworth Hospital Richmond
(C2014/8242)

COMMISSIONER ROE MELBOURNE, 23 JANUARY 2015

Application to deal with contraventions involving dismissal - jurisdiction: extension of time.

[1] Epworth Hospital advised Mr Knight that he was dismissed for reasons of redundancy. The termination letter stated that the dismissal was effective from 25 September 2014. It is agreed that Mr Knight received the termination letter on 26 September 2014. The present application was made on 16 December 2014 which is approximately 59 days beyond the 21 days normally allowed to make a general protections application involving dismissal. Mr Knight is seeking an extension of time and argues that exceptional circumstances exist which justify the extension taking into account the criteria in Section 366(2) of the Fair Work Act 2009 (the Act).

[2] Some of the facts of this complicated matter are not in dispute:

● Mr Knight was advised by Epworth on 22 August 2014 that due to restructuring of operations his role as a painter at the hospital would be redundant. However, redeployment and other options will be discussed prior to the decision about redundancy being made. Mr Knight was provided with a change impact statement which set out the reasons why Epworth was proposing to outsource the painting function. Mr Knight was the only employed painter. Mr Knight was also provided with an estimate of his redundancy and other entitlements.

● Mr Knight through his representatives challenged the validity of the decision pursuant to the redundancy clause of the collective agreement on 27 August 2014. A series of meetings and correspondence was entered into.

● On 3 September 2014 Epworth confirmed that following a consultation process the decision to make the position redundant was confirmed and no redeployment options had been found at that stage. Further redeployment proposals were invited and a further meeting of 8 September was arranged.

● Following the meeting on 8 September agreement was reached to amend the final payments by correcting service increments and adjustments were also made to the calculations.
● On 23 September 2014 Mr Knight advised his representatives that he was not prepared to sign a deed of release and accept the redundancy and he wanted to contest the genuineness of the redundancy. On 24 September Mr Knight’s representatives advised that it would be unprofessional for them to continue to act for him in circumstances where they had negotiated a settlement based on his instructions.

● On 24 September 2014 Mr Knight lodged a general protections application (C2014/1786). This application was pursuant to Section 372 of the Act. Mr Knight indicated on the form that he had not been dismissed and this was in fact the truth at the time he lodged his application. Mr Knight alleged that the reasons why he was being targeted for proposed redundancy were that he and other employees had made a bullying complaint and because of his activities as a health and safety representative.

● The redundancy was confirmed by letter dated 25 September 2014 but received by Mr Knight on 26 September 2014.

● Epworth responded to the Section 372 application with an F8A form on 6 October 2014. In that response, which was also sent to Mr Knight, Epworth stated that Mr Knight had now been dismissed and that it was a genuine redundancy and that the consultation and redeployment requirements had been met.

● On 6 October 2014 the Associate to DP Gostencnik advised the applicant that because he had now been dismissed the current application may not be appropriate and that he may be able to make a new application relating to his dismissal. The Associate advised Mr Knight that if he was to make a further application he should be aware of the 21 day time limit.

● On 9 October 2014 Mr Knight lodged an unfair dismissal application (U2014/9632).

● On 10 October 2014 a pro-forma letter was sent by the Fair Work Commission advising that the Commission had received two applications relating to his dismissal, namely U2014/9632 and C2014/1786. The notice wrongly described C2014/1786 as a section 365 application for general protections involving dismissal. The notice asked Mr Knight to decide which of the applications he wished to proceed with within 14 days.

● Mr Knight had a telephone conversation with a member of the Fair Work Commission registry on 5 November 2014 and Mr Knight indicated that he wished to proceed with the unfair dismissal application. The Fair Work Commission sent a F50 notice of discontinuance to Mr Knight.

● Mr Knight returned a signed notice of discontinuance on 5 or 6 November 2014. Mr Knight ticked the box on the form that he was discontinuing the matter to pursue an alternative application.

● On 11 November 2014 a notice was sent to the parties advising that the conciliation of this matter would occur on 25 November 2014.
● On 17 November 2014 Epworth provided a response to the unfair dismissal application and provided a copy of this to Mr Knight. The F3 response form made clear that the unfair dismissal application was objected to on jurisdictional grounds -namely that the termination was a genuine redundancy and the requirements in respect to consultation and redeployment had been met.

● At the conciliation conference on 25 November 2014 the parties agreed to a seven day cooling off period during which Mr Knight would determine the future of his application.

● On 27 November 2014 Mr Bourke, the conciliator, emailed Mr Knight: “Hi George, Given the issues which arose the other day re the changing from a 365 to the 394, you should check out these two decisions as they may assist you to decide “where to from here”. They are: Ioannou v Northern Belting Services Pty Ltd 1 and Lachlan v Novacare Incorporated.”2

● On 2 December 2014 Mr Knight responded to Mr Bourke’s email and attached a completed F50 form to discontinue his unfair dismissal matter “in order to pursue an alternate application”.

● On the same day Mr Bourke responded by confirming that the F50 form had been received and that he should be able to confirm that the matter was closed before long. He noted that the computer system was being difficult at that moment. The Commission’s file shows that about 30 minutes later Mr Bourke did in fact confirm the withdrawal was now able to be processed and this was sent to Mr Knight and to Epworth. This document was not included in the materials before the parties at the hearing of this matter so I do not rely on it.

● On 10 December 2014 Mr Knight wrote to Mr Bourke and asked “how long should I wait before I can lodge my application, so as not to have a reoccurrence of the previous situation”. He also wrote “I have not received any notifications from fairwork that the previous application has been closed.”

● On the same day Mr Bourke responded: “I confirmed that the F50 had arrived and it went on the system after about a 30 minute delay. There won’t be any other notification and having waited may not have been a good thing if it generates an even longer delay that has to be explained. Perhaps you should have kept in touch with your lawyer to keep on top of things.”

● On 12 December 2014 Mr Knight wrote again to Mr Bourke saying he had been trying to lodge online and had not been successful and that he was therefore posting the matter in and had not included the payment. He also noted that he had forgotten to sign the application he had posted in.

● The unsigned application was received on 16 December 2014 (C2014/8242).

[3] I have considered the evidence of Mr Knight and the submissions of the parties. I am satisfied that Mr Knight was advised that he could make an application to dispute his termination by Epworth. At that time Mr Knight could have made a Section 365 General Protections application or a Section 394 Unfair Dismissal application. Mr Knight acknowledges he was told about the 21 day time limit for making the applications to dispute his dismissal by the Fair Work Commission. Mr Knight acknowledged that he sought some external advice at this point. Mr Knight decided to make an unfair dismissal application. Mr Knight had earlier received the response of the employer to his Section 372 general protections application which clearly flagged that the employer was objecting to the application on the ground that Mr Knight had been made genuinely redundant and the employer had complied with the consultation and redeployment provisions. Mr Knight had that information when he made his decision to lodge an unfair dismissal application. If Mr Knight believed that the facts supported a conclusion that it was not a genuine redundancy and/or that the consultation and redeployment provisions had not been complied with it was not unreasonable for Mr Knight to continue to pursue an unfair dismissal application.

[4] I accept that the notice issued by the Fair Work Commission on 10 October 2014 was in error in two respects. Firstly, it wrongly characterised C2014/1786 as a Section 365 application and, secondly, it required that that matter be discontinued prior to the unfair dismissal matter proceeding. It was not actually necessary for that matter to be discontinued. Mr Knight decided to proceed with his unfair dismissal application and discontinued C2014/1786 on 5 or 6 November 2014. If Mr Knight had not done so it would have made no difference as C2014/1786 was unable to be of assistance to Mr Knight as it was an application under Section 372 not related to dismissal. Mr Knight had been advised of this and he acknowledged that this advice from the Fair Work Commission was the reason why he considered making and eventually decided to make the unfair dismissal application. The unfair dismissal application would have proceeded regardless. I am satisfied that the Fair Work Commission error had no effect on the unfair dismissal application and did not contribute to any of the delay prior to the unfair dismissal conciliation conference on 25 November 2014.

[5] When the conciliation conference occurred on 25 November 2014 there was only one live application, U2014/9632. Epworth, Mr Knight and the Fair Work Commission were all aware of the fact that there was only one live application as C2014/1786 had been discontinued.

[6] The conciliation conference did not resolve the unfair dismissal matter. It was agreed that Mr Knight had seven days in which to consider his position. Mr Knight confirmed that he looked at the two decisions referred to him by Mr Bourke during that seven day period. The decision in Ioannou is about whether it is possible to change an unfair dismissal application into a general protections application or vice versa. The Full Bench found that it was not possible to make the amendment because it fundamentally changes the kind of application made and because it may circumvent the prohibition on multiple actions. The Novacare decision is one where an unfair dismissal matter was dismissed because an earlier general protections matter relating to the dismissal had not been withdrawn at an appropriate time.

[7] Mr Knight gave evidence that he withdrew his unfair dismissal application seven days after the conciliation conference because he had always wanted to pursue a general protections claim and because he understood that there was a technical problem with his unfair dismissal matter proceeding. The discontinuance notice made it clear he was withdrawing the unfair dismissal application in order to pursue an alternate application.

[8] Mr Knight could not clearly explain the perceived technical problem, however, I consider that he may have been referring to the possibility that the unfair dismissal application may not have been valid because a general protections application involving dismissal had been made earlier and had not been withdrawn at the time the unfair dismissal application was made. Of course this was not the reality given that the original application was not a general protections application involving dismissal. I only consider it to be a possibility that this was the nature of the error perceived by Mr Knight, the evidence was insufficient to reach a conclusion. I also note that the decision in Nulty v Blue Star Group Pty Ltd 3allows for the possibility that the time the application is made in the multiple applications section could have two alternative meanings. It is undecided if it relates “to the point in time that an application or complaint is lodged or whether it has an ambulatory operation and is concerned, on its true construction, with the point in time when the operation of s.725 falls to be considered in any given case.”4

[9] When Mr Knight decided to withdraw his unfair dismissal application in order to pursue a general protections application he was well aware that he would have to deal with the extension of time matter.

[10] I accept that Mr Knight may have misunderstood the nature of the problems with his unfair dismissal case. I consider it possible that the error in the information provided by the Fair Work Commission might have contributed to such a confusion. However, this issue only came to Mr Knight’s attention around the time of the conciliation conference on 25 November 2014 or in Mr Bourke’s email two days later. It was only at this point that Mr Knight decided to consider alternatives to continuing with his unfair dismissal application. Any delay to that point cannot be because of an error in information received from the Fair Work Commission.

[11] The decision to make the unfair dismissal application was not a result of poor or incorrect advice from the Fair Work Commission. As stated earlier Mr Knight was correctly advised that his Section 372 application was not going to lead him anywhere now he was dismissed and that he should consider making an application which related to his dismissal. He decided to make an unfair dismissal application in full knowledge of the likely employer response concerning genuine redundancy. The decision to discontinue the Section 372 application did not affect the unfair dismissal application. The decision to discontinue the Section 372 application was further indication that Mr Knight wished to pursue his unfair dismissal application.

[12] Mr Knight withdrew the unfair dismissal application on 2 December 2014 and did not lodge the present application until 14 days later. Mr Knight suggests that there are two reasons for this part of the delay. Firstly, that he says that he did not receive confirmation from the Fair Work Commission that his notice of discontinuance had been processed and, secondly, that he had some difficultly lodging the application online. Each of these matters could potentially provide a reasonable explanation for one or two days delay. However, if it is accepted that Mr Knight thought that he needed to wait for some further confirmation from the Fair Work Commission, I am not satisfied in the circumstances that it was reasonable to wait eight days before making further inquiry. As previously discussed I believe that Mr Knight received the confirmation that his notice of discontinuance had been received and entered on the system (CMS) and this is one way the email of Mr Bourke of 10 December 2014 can be read. However, clear evidence on this point was not before me during the hearing... I accept that Mr Knight was confused and overcautious at this point and the Fair Work Commission had contributed to the confusion. I am therefore prepared to accept that there was an acceptable explanation for a delay of a few days after 27 November 2014. However, there is no acceptable reason for the delay of 14 days.

[13] By 27 November 2014 the application was more than a month out of time. That delay is not explained by any Fair Work Commission error.

[14] The Explanatory Memorandum to the Fair Work Bill 2008 makes the purpose and limits of the provisions about multiple actions in respect to dismissal clear. It provides:

“2710. In all cases the anti-double dipping provisions will not apply where the initial application has:

• been withdrawn; or



• failed for want of jurisdiction.

2711. This is intended to ensure that a person does not miss out on a remedy because they were unable to make a competent application for another remedy or where they have realised another remedy may be more appropriate than the remedy they initially sought.” 5

[15] These important exceptions to the anti-double dipping provisions would be of limited impact and purpose if there could never by an extension of time granted in a circumstance where an applicant was “unable to make a competent application for another remedy or where they have realised another remedy may be more appropriate than the remedy they initially sought.” In my view these situations can properly constitute reasons for delay which when combined with consideration of the other factors required for an extension of time could constitute exceptional circumstances warranting the granting of an extension.

[16] In the particular circumstances of this case the unfair dismissal remedy was a competent application.

[17] I have accepted that part of the reason why Mr Knight decided to discontinue the unfair dismissal application and to make an out of time general protections application concerning his dismissal was because he wrongly perceived that there was a technical problem with his unfair dismissal application. In other words he is effectively submitting that the reason for the delay up to 25 November 2014 was that he wrongly pursued the unfair dismissal case. It is not appropriate to consider what might or might not have been said in the conciliation conference. Given Mr Knight could not clearly articulate the nature of the problem with the unfair dismissal application or the source of that information I cannot determine why the decision was made. On balance, I cannot be satisfied that Mr Knight realized that the general protections remedy was more appropriate than the remedy initially sought.

[18] In the circumstances of this case I am not satisfied that the delay is explained by the need to make a change from unfair dismissal to general protections because that was necessary to make a competent application or achieve a more appropriate remedy. The reasons which led to a decision to discontinue the unfair dismissal application in these circumstances cannot constitute an acceptable reason for the delay up to 25 November 2014. That is, they do not constitute a reason to discount the time during which the unfair dismissal case was pursued by Mr Knight.

[19] It is conceded that Mr Knight has taken consistent and persistent action to dispute the dismissal. This stands in favour of the application.

[20] I am not satisfied that there is prejudice to the employer. The employer has been on notice since the time of the dismissal about the nature of Mr Knight’s grievance. Mr Knight has relied upon essentially the same basic facts and argument for all three applications. The responses to the three applications from the employer have dealt with that same set of facts and similar arguments. The employer would have had to defend the unfair dismissal application had it not been for the withdrawal in favour of this application. This is a neutral factor.

[21] I accept that the defence of the employer to the application will be that the decision to make Mr Knight redundant was for genuine operational reasons and that the structural change has been implemented and that the alleged complaints had nothing to do with the decision. It will be difficult for Mr Knight to shake that defence. Based upon what was before me it is not a strong case. However, I am not in a position to judge the strength of the evidence Mr Knight might finally be able to bring to shake that defence. The merits are a neutral factor in this case.

[22] There would be no general unfairness if the extension was to be granted such that fairness as between Mr Knight and other persons in a like position would be offended. This is a neutral consideration.

[23] Taking all these matters into consideration I am not satisfied that there are exceptional circumstances justifying an extension of time.

[24] I decline to grant an extension of time. The Application is therefore dismissed and an order to that effect will be published.

COMMISSIONER

Appearances:

Mr G Knight represented himself.

Mr M Addison appeared for the Respondent.

Hearing details:

2015

Melbourne

January 14

 1   [2104] FWCFB 6660.

 2   [2013] FWC 971.

 3   [2011] FWAFB 975.

 4   [2011] FWAFB 975 at para 60.

 5   Fair Work Bill 2008 Explanatory Memorandum at [2710] - [2711].

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