Mr Greg Chalker v Melbourne Bus Link

[2012] FWA 3399

[2012] FWA 3399

FAIR WORK AUSTRALIA

DECISION

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

Mr Greg Chalker
v
Melbourne Bus Link
(U2011/14349)

COMMISSIONER JONES MELBOURNE, 27 APRIL 2012

Application for Relief of Unfair Dismissal - Jurisdictional Objection

Background

[1] On 6 December 2011, an application pursuant to s.394 of the Fair Work Act2009 (the Act) for remedy from unfair dismissal was lodged by Mr Greg Chalker (the Applicant).

[2] The Applicant commenced employment with Melbourne Bus Link (the Respondent) on 20 September 2010 as a bus driver. In his application for Unfair Dismissal Remedy (Form F2), the Applicant recorded that he was summarily dismissed on 23 November 2011 for damaging company property and breach of company policy.

[3] In its preliminary material (Form F3), the Respondent raised a jurisdictional objection; namely that the Applicant failed to lodge his application within the 14 day time limit specified in s.394(2) of the Act. The Respondent requested that the jurisdictional objections be determined by Fair Work Australia (FWA) prior to the matter proceeding to arbitration.

[4] The matter was listed for a jurisdictional hearing on 16 April 2012. Directions were issued to the parties for the filing and serving of written submissions. The Respondent filed and served its written submissions whilst the Applicant did not comply with directions. The Applicant did not attend the hearing having advised my Associate that he did not intend to appear at the hearing. Mr Richard Lambert, Solicitor, represented the Respondent.

[5] The relevant factual material in relation to this jurisdictional objection is as follows:

● An application was made by telephone by the Applicant on 6 December 2011;

● By letter dated 8 December 2011, the Respondent was advised by FWA that an application for unfair dismissal remedy had been made by the Applicant by telephone and that, pursuant to Rule 14 of the Fair Work Australia Rules 2010 (FWA Rules), the Applicant was required, amongst other things to sign and return a completed application.A copy of application dated 6 December 2011 was attached to this letter;

● On 27 December 2011, the Applicant filed a completed and signed application (Form F2 - Application for Unfair Dismissal Remedy);

● A copy of the completed application was sent by FWA to the Respondent on 11 January 2012.

Legislation and Statutory Rules

[6] The Objects of Part 3-2, Unfair Dismissal relevantly provide:

381 Object of this Part

(1) The object of this Part is:
……………………………………..

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and

……………………………………
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

[7] Section 394 of the Act provides:

Division 5—Procedural matters

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a 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.

[8] The FWA Rules relevantly provide:

6 Forms
6.1 Schedule 1 is a table of the forms contained in Schedule 2.
6.2 Subject to these Rules:

(a) an application to FWA must be made using the form in Schedule 2 that is specified for the purpose in Schedule 1; and

................................

Part 3 Unfair dismissal
14 Applications may be made by telephone
Despite rule 6, an application for an unfair dismissal remedy may be made by telephone at a telephone number approved for that purpose, provided that:

(a) the applicant pays the application fee prescribed in the Regulations by credit card, or applies for a waiver of the fee at the time the telephone application is made; and
(b) the applicant signsand returns to FWA a copy of the written application generated by FWA (amended as necessary to correct any errors) together with a completed application for waiver if a waiver of the fee has been sought.

..........................................................

Respondent’s Submission

[9] The Respondent’s submission regarding its jurisdictional objection is, in summary, that the word “application” in s.394 of the Act is a reference to an application which is completed in all relevant respects. 1 Construing the provisions of s.394 of the Act in this manner has the consequence that the application in this matter was lodged 34 days after the effective date of dismissal.

[10] The Respondent further submits that there are no exceptional circumstances which would warrant FWA exercising its discretion to extend the time within which an application for relief can be made under subsection 394(3) of the Act.

[11] In relation to its argument that the word “application” in s.394 of the Act is a reference to a completed application, the Applicant referred to Rule 14 of the FWA Rules, which it submitted:

....

is silent in relation to its relationship to section 394 and is silent in relation to any time period. And I suppose to get to the hub of it, it's to see what processes Fair Work and the tribunal consider to be reasonable duration between the lodgement of a telephone application and the completion of the rest of the application form to the point where it would then generate a conciliation hearing and whether 14 days, which becomes the benchmark under 394, whether (a) that applies, (b) whether 21 days applies, or in the case of Mr Chalker some 34 from the termination, or whether indeed this matter could well have gone on for some months. If there is no relationship between the lodgement under 394 through telephone, and then the provision of additional information that triggers an application, we'd be arguing that - or in fact are arguing that the respondent could be significantly disadvantaged and suggest that it's probably a matter that needs some degree of consideration at a different level. 2

Consideration

[12] FWA is unable to deal with matters which in essence are concerns with the timeliness of administrative processes and this fact was accepted by the Respondent at the hearing. 3.

The issue to be determined is a narrow one, namely whether, as argued by the Respondent, the word “application” in s.394(2) of the Act is a reference to an application which is completed in all relevant respects.

[13] It is trite to observe that the task of statutory construction commences with a consideration of the text in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 4. It is to be noted that the provisions of s.394(2) do not specify that an application for relief from unfair dismissal is required to be a completed application. On its ordinary meaning the subsection simply requires an application be made without any qualification.

[14] The task of statutory construction was described by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority 5 in the following terms:

‘The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (see Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble’s [1985] AC 609 at 617, per Lord Scarman, "in the context of the legislation read as a whole".). In Commissioner for Railways (NSW) v Agalianos ((1955) 92 CLR 390 at 397), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed (Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J)".’

[15] The Objects of Part 2-3 of the Act provide that procedures shall be established relating to unfair dismissal which are quick, flexible and informal and address the needs of employees and employers. Subsection 394(2) of the Act imposes a time limit on the filing of applications, being 14 days from the effective date of dismissal subject to the discretion of FWA to extend the application period in exceptional circumstances. These provisions clearly facilitate objects s.381(2)(b) of the Act.

[16] The Rules promote the Objects of Part 3-2 of the Act by waiving the requirement for applications to be filed in written form (Rule 6 of the FWA Rules) and enabling applicants for relief from unfair dismissal to make applications by telephone first (Rule 14 of the FWA Rules). Applicants are required, except in exceptional circumstances to make an application for relief from unfair dismissal within 14 days, however, the needs of employees are addressed and, in accordance with the dictates of fairness, meeting this strict timeline is facilitated by the provision of filing applications by telephone in the first instance. Applicants availing themselves of this mode of application are required to file in FWA completed and signed written applications. No time period is specified for the filing of the written application under Rule 6. By its nature, telephone applications cannot be complete as there can never be a signed application.

[17] Although I am not satisfied that the provisions of s.392(2) are ambiguous, it is appropriate to refer to the Fair Work Bill 2008 Explanatory Memorandum which states in relation to Division 5 of Part 3-2:

“1570. This Division balances the need for a faster, less costly and less complex process of resolving unfair dismissal claims with the need to provide fairness for both employers and employees. In addition to the rules set out in these provisions, the rules of natural justice will apply”

[18] In my opinion, construing s.394 of the Act so as to require a completed application within 14 days would not facilitate informality and flexibility and would operate unfairly as against applicants. I, therefore reject the Respondent’s submissions as to the construction of s.394(2).

Conclusion

[19] Consequently, I find that the application for relief from Unfair Dismissal by the Applicant was made on 6 December 2011, 13 days after the effective date of his dismissal and, hence, within the time specified in s.394(2) of the Act.

[20] The Respondent’s jurisdictional objection is dismissed. An order to this effect will be issued today.

COMMISSIONER

Appearances:

Mr Richard Lambert - Counsel for the Respondent

Hearing details:

2012
Melbourne
April, 16

 1   Transcript 16 April 2012 at paragraphs [5-12]

 2   Transcript 16 April 2012 at paragraph [25]

 3   Transcript 16 April 2012 at paragraphs [26-34]

 4 (2009) 239 CLR 27 at [47]

 5 (1998) 194 CLR 355 at [69]

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