Mr Jonathan Legros v David Morris Pty Ltd as the Trustee for the Gustose Unit Trust t/as the Pantry Door
[2010] FWA 4417
•16 JUNE 2010
[2010] FWA 4417 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jonathan Legros
v
David Morris Pty Ltd as the Trustee for the Gustose Unit Trust t/as The Pantry Door
(U2010/6066)
DEPUTY PRESIDENT MCCARTHY | PERTH, 16 JUNE 2010 |
Termination of employment – extension of time – exceptional circumstances.
[1] Mr Jonathan Legros (the Applicant) lodged an application for an unfair dismissal remedy (the Application) asserting that he had been unfairly dismissed from his employment with David Morris Pty Ltd as the Trustee for the Gustose Unit Trust t/as The Pantry Door (the Respondent).
[2] The Application was lodged on 16 February 2010. The Fair Work Act 2009 (the FW Act) requires that an application must be made within 14 days after the dismissal took effect or within such further period as Fair Work Australia (FWA) allows. The Application states that termination was notified on 16 January 2010 and took effect on 5 February 2010.
[3] The Respondent lodged an Employer’s Response to Application for Unfair Dismissal Remedy on 3 March 2010. In that response the Respondent stated that the last date that the Applicant attended work was 22 January 2010, inferring that was the date that any termination took effect. The Respondent objected to the Application asserting that the Application was lodged outside the time allowed. The Respondent also raised other jurisdictional objections to the Application.
[4] Following a conciliation conference conducted where the Application was not resolved the matter was referred to me. On 19 March 2010 I wrote to the Applicant requesting that he provide me with information regarding a number of initial matters. 1
[5] The Applicant responded to that request by providing an outline of submissions and further information in support of his application for an extension of time. The reasons he gave can be summarised as follows:
- His last day of work was 22 January 2010;
- He sought advice from a free telephone advice line;
- That advice informed him of the right to lodge unfair dismissal applications with the Western Australian Industrial Relations Commission (the WAIRC);
- He lodged an application with the WAIRC on 5 February 2010;
- After 10 days of no response he phoned the WAIRC who advised him to lodge an application with FWA;
- There is no prejudice to the Respondent if the application were allowed;
- The merits of the Application warrant an extension (grounds supporting that contention were given); and
- Fairness favours an extension of time.
[6] The Applicant attached a copy of the application he lodged with the WAIRC.
[7] The Respondent also lodged an outline of submissions in which the basis of the objection to an extension of time was explained made emphasis on the differences between the dates of dismissal on the WAIRC application and when termination is asserted to have taken effect as stated on the FWA Application without explanation. Further, the Respondent asserted that the Applicant had initially stated that he was constructively dismissed whereas his submissions do not appear to make that assertion.
[8] On 30 April 2010 the Applicant responded to the Respondent’s submissions but it dealt with other matters raised by the Respondent and not directly related to the issue regarding whether an extension of time should be granted.
[9] On 7 May 2010 I wrote to the Registrar of the WAIRC requesting that he provide me with any documents or file notes regarding any application lodged, or endeavoured to be lodged, by the Applicant on or around 5 February 2010.
[10] The Registrar responded on 10 May 2010 and provided copies of various documents and internal memorandums. In a memorandum of 5 February 2010 the WAIRC officer noted that:
“A courtesy call was made to Mr Legros, and I advised him that no lodgement fee of fifty dollars was received regarding the online lodgement application and that payment should be made within 7 days.
In relation to the application the following was raised with Mr Legros:
The jurisdiction the employer falls under whether state or federal and if federal jurisdiction to follow this with Fair Work Australia.. The following phone numbers were provided, Department of Commerce, Employment Law Centre and Fair Work Australia.”
[11] On 10 May 2010 I wrote to the Applicant and attached a copy of the documentation provided by the WAIRC and invited comment. The Applicant responded and advised that:
- An officer of the WAIRC did telephone him on 5 February 2010 and asked some general questions;
- He did not receive an email meant for him on 12 February 2010 as it was incorrectly addressed;
- He travelled to the South West around this time;
- He rang the WAIRC on 16 February 2010 as he had not heard anything and amongst other things advised that he would proceed by lodging an application with FWA.
[12] On 25 May 2010 I listed the matter for hearing. I conducted a hearing on 8 June 2010.
[13] The Applicant gave evidence. He stated that he sought legal advice about unfair dismissal on 28 or 29 January 2010 and was advised to go online and lodge an application but that nothing was explained to him about the differences between the federal and state jurisdictions. The Applicant also says that he found out on 16 February 2010 when he returned from the South West after he rang “a free line” that he should have lodged in FWA and not the WAIRC.
[14] The Applicant in cross-examination stated that he lodged an application online and he was contacted by phone by an officer of the WAIRC within minutes. He acknowledged that he was advised by the WAIRC officer to contact a number of other agencies to obtain advice about disputing a termination of employment but that he did not write anything down. He suggested that a reason that he did not write down the names and telephone numbers that the officer advised him was because the officer stated that he would confirm matters in an email.
[15] The Registrar of the WAIRC, Mr John Spurling, was also called to give evidence. He stated amongst other things that the normal response to applications lodged in the WAIRC is to advise about the potential for jurisdictional problems and that his officer’s notes reflect that practice.
[16] This Application shows the date the termination took effect was 5 February 2010, which would have brought it within the allowable time to lodge. It was not contested that the actual date of termination was 22 January 2010. It was left unexplained as to why 5 February 2010 was the date stated on this Application.
[17] The WAIRC officer that called the Applicant not only alerted him to the potential for a jurisdictional issue but also provided him with contact details to get advice. It was at that juncture that he was advised of the likelihood that he would need to lodge an application with FWA and not as his submissions would have had me believe some 10 days later.
[18] I consider that the Applicant’s evidence cannot be relied on as an accurate account of actions he took to contest his termination of employment. I find that he was alerted to the likelihood that he would need to lodge an application in FWA and not the WAIRC on 5 February 2010 but decided not to act by either getting further advice or taking any other action until he had returned from a trip to the South West.
[19] I do not consider that the employer would be unduly prejudiced by the delay other than the normal issues associated with any application of this nature.
[20] The merits of the Application are strongly contested. I am unable to form a view about the merits of the Application.
[21] I also consider that it would not be fair to other persons in a like position if the Application were allowed particularly as other persons in a like position would be expected to act expeditiously once informed of the likelihood that an application was wrongly lodged in the WAIRC.
[22] Having taken the matters referred to in s394(3)(a) to (f) into account I am obliged to be satisfied that there are exceptional circumstances before exercising a discretion to allow or not allow the application.
[23] Exceptional circumstances in the FW Act are not defined. Guidance on its meaning and application might be obtained from other statutes which require exceptional circumstances to exist before powers can be exercised. For example the Migration Regulations 1994 (Cth) provides for consideration of whether a breach of a visa condition was due to “exceptional circumstances beyond the visa holder’s control.” 2 There is no condition at all attached to the phrase in s.394(3) here.
[24] The Health Insurance Act 1973 (Cth) at s.106KA(2) refers to exceptional circumstances may have existed “that affected the rendering or initiating of services provided by the person.” That provision was considered by Rares J in Ho v Professional Services Review Committee 3. However there, as Rares J finds, s.106KA(2) is directed to the circumstances of the actual practitioner4. Again there is no condition let alone a similar condition in s.394(3) of the FW Act.
[25] Exceptional circumstances was also a phrase that existed in several sections of the Workplace Relations Act 1996 (the WR Act). For example in s.463(5) of the WR Act there was a capacity to require the extending of the time for the written notice of the taking of industrial action from a mandatory 3 days for to up to 7 days if there were exceptional circumstances justifying the extension. Lawler VP found in CEPU & Australian Postal Corporation exceptional circumstances had to be those ‘“justifying” the specification of a longer notice period” and that “The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441.” 5 Here although the subsection does include the word “justifies” it is probably because it is not necessary.
[26] Guidance might also be gained from other statutes that provide a capacity to extend the time allowed for the lodgement of claims or instituting proceedings although it is of dubious assistance where the statute itself does not refer to exceptional circumstances. For example the Corporations Act 2001 (Cth)provides in s.266(4) that time can be extended in circumstances where accidentally or inadvertently the time requirement has not been met or on other grounds where it is just and equitable to grant relief. 6
[27] In Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd Branson J considered the application of s.266(4) of the Corporations Act 2001 (Cth) and specifically the statutory test of whether it was just and equitable to grant relief. There the Court was not dealing with the meaning of exceptional circumstances. Yet some decisions of FWA appear, wrongly in my view, to have relied on his observations there. 7
[28] Thus I am reluctant to adopt approaches applied for other statutes as the phrase exceptional circumstances in those statutes is often conditioned and always for a specific purpose. Here the phrase is not conditioned at all even though there are matters that must be given consideration.
[29] Therefore I am of the view that the approach decided in Baker v The Queen 8 in the application of terms such as special reasons or special circumstances to be the approach to be taken. There Gleeson CJ stated:
“There is nothing unusual about legislation that requires courts to find "special reasons" or "special circumstances" as a condition of the exercise of a 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.” 9
[30] I therefore consider that it is a matter of judgement for me to make based on the facts whether exceptional circumstances exist or not. 10 I add that I consider I am obliged to start from the basis that the FW Act mandates that claims for unfair dismissal be lodged within 14 days although that mandate is not absolute.11
[31] The facts here are that the Applicant attempted to lodge an application in the WAIRC. I do not consider that to be an exceptional circumstance. It is certainly not an uncommon occurrence and one that I regularly encounter it in matters of this type.
[32] The Applicant also asserted that that he had lodged and then waited either confirmation or further written advice. However that was in the context of the WAIRC having advised him immediately that he might need to lodge in FWA. Rather than take that advice he chose to leave Perth for a short but critical period. I do not consider his awaiting advice from the WAIRC to be an exceptional circumstance.
[33] The Applicant also asserted that he had gained advice prior to his lodging the application. The advice he infers was to lodge an application with the WAIRC. Regardless of who provided that advice I do not consider that to be an exceptional circumstance.
[34] Nor do I consider that a combination of those facts and the matters I must take account of are such that the circumstances are exceptional.
[35] Thus I do not consider exceptional circumstances exist here and therefore I cannot allow the application.
DEPUTY PRESIDENT
Appearances:
Ms M Saraceni for the Applicant.
Mr D Paton for the Respondent.
Hearing details:
2010.
Perth:
June, 8.
1 See s.396
2 See Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 (23 October 2009)
3 Ho v Professional Services Review Committee No 295 [2007] FCA 388 (26 March 2007)
4 Ibid at para 27
5 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Australian Postal Corporation [2007] AIRC 848 at para 11
6 See Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 (21 November 2003)
7 See Parker v Department of Human Services, Southern Metropolitan Region [2009] FWA 1638 at para 30 ; and Johnson v Joy Manufacturing [2010] FWA 1394 at paras 27 & 28
8 See Baker v The Queen [2004] HCA 45
9 Ibid per Gleeson CJ
10 See Maan at para 52
11 See R v Kelly (Edward) [2000] 1 QB 198
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