Mr Lance Simpson v Patrick Stevedoring Holdings Pty Ltd T/A Patrick Auto Bulk and General
[2010] FWA 5056
•8 JULY 2010
[2010] FWA 5056 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Lance Simpson
v
Patrick Stevedoring Holdings Pty Ltd T/A Patrick Auto Bulk and General
(U2010/5670)
COMMISSIONER ASBURY | BRISBANE, 8 JULY 2010 |
Termination of employment - extension of time on papers.
Background
[1] On 29 January 2010, the Maritime Services Union of Australia (MUA), on behalf of Mr Lance Simpson, filed an application for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act). The respondent, Patrick Stevedoring Holdings Pty Ltd T/A Patrick Auto Bulk and General (Patricks) filed a Form 3 – Employer Response, objecting to the application inter alia on the ground that it was lodged outside the time allowed in s. 394(2) of the Act.
[2] On 17 February 2010, Mr William Giddins, National Industrial Officer of the Maritime Union of Australia (MUA), wrote to Fair Work Australia (FWA) requesting an extension of the time for filing the unfair dismissal application, pursuant to s. 394(3) of the Act. Patricks accepted this correspondence as an application for an extension of time. A Directions Order was issued by consent in relation to the extension of time application, on the basis that the parties would file and serve statements of evidence, exchange written submissions, and FWA would determine the matter relying upon the material provided by the parties. The Directions Order also indicated that upon the request of either party, the matter would be listed for hearing on 6 May 2010. No party requested a hearing.
Evidence and Submissions
[3] The MUA filed an affidavit deposed by Mr Giddins in support of the application for an extension of time. It is not in dispute that Mr Simpson was dismissed on 14 January 2010, and that his dismissal was effective from that date. Mr Giddins states in his affidavit that:
• On 21 January 2010 the MUA’s Assistant National Secretary requested that Mr Giddins take action in relation Mr Simpson’s dismissal;
• Mr Giddins contacted Mr Simpson and told him that:
• The matter had been referred to the national office of the MUA;
• Mr Giddins would prepare and file an unfair dismissal application on behalf of Mr Simpson; and
• Mr Simpson would not need to do anything about the application.
[4] Mr Giddins further states that on or around 25 January 2010 he requested his assistant to commence drafting the application and indicated that he intended to settle the draft. Acting on his recollection of the Acts Interpretation Act 1901, Mr Giddins calculated that he had until 29 January 2010 to file the application. This calculation was based on a view that the 14 day limitation period began to run on 15 June 2010, and that 14 days should be added to that date. Due to work pressure, Mr Giddins did not file the application until 29 January 2010. At the time the application was filed, Mr Giddins was not aware that it was beyond the 14 day time limit and was unaware that a request for an extension of time should have been made as part of the application. Mr Giddins maintained that he was ignorant of the application being filed outside the required time, until the Form F3 – Employer Response was received from Patricks.
[5] It was submitted on behalf of Mr Simpson that the late application was solely the result of representative error and the consequences of that error should not be visited upon Mr Simpson. There was no material filed by Patricks identifying any prejudice that would arise if the extension of time was granted, and inconvenience associated with having to defend an application if an extension of time is granted, is not a substantive prejudice. 1 Further, it was submitted that the merits of the application turn on contested evidence in relation to the conduct of Mr Simpson, the procedure adopted by Patricks to investigate the matters in issue and the information provided to Patricks by Mr Simpson during that process. It was submitted that in the absence of sworn evidence in relation to these matters, the merits of the application cannot be assessed.
[6] In relation to the term “exceptional circumstances”, it was submitted that the ordinary meaning applies – that is a circumstance that is unusual, special or uncommon or for which it is just and equitable to grant relief – will be sufficient for the discretion to extend time to be exercised.
[7] Patricks submitted that Mr Simpson bears the onus of satisfying FWA that there are exceptional circumstances warranting an extension of time. The test was said to be stricter than that contained in the previous Workplace Relations Act 1996 2. The only reason given by Mr Simpson for the delay is representative error. The mere existence of representative error does not make it an exceptional circumstance, and the specifics of the error must be looked at. In the present case, Mr Giddins assertion is simply that he misunderstood the law. It is not suggested that Mr Giddins was unaware of the time limit for filing. The method of calculating the time for filing an unfair dismissal application has not altered between the previous and the current legislation, and there is no evidence that a change in the legislation caused any confusion on the part of Mr Giddins. Further, the calculation was straightforward and involved nothing exceptional or unusual such as a dispute over the date on which the dismissal took effect. Section 394 of the Act is simple as is the Acts Interpretation Act 1901. In any event that Act did not apply because the time limit did not end on a weekend or public holiday. The calculation simply required 14 days to be added to the termination date.
[8] Mr Giddins’ error is a simple clerical error. In relation to the contention about the pressure of Mr Giddins’ other responsibilities, there was no evidence that Mr Giddins was the only officer of the MUA capable of filing the application. Further there is no evidence that such pressure impacted on Mr Giddins’ ability to calculate 14 days and it is not unusual for union officials or other professional representatives, to have pressures associated with the responsibilities of their positions.
[9] The applicant was notified on 14 January 2010 that Patricks had decided to terminate his employment and there is nothing unusual about providing advice of termination on the day it takes effect. The applicant took no action to contest his termination other than to instruct his representative to file an unfair dismissal application and did not tell Patricks either directly or through a representative, of the intention to contest the dismissal. The cost and inconvenience of Patricks defending an application lodged out of time causes financial prejudice, and Patricks should not lightly be put to cost and inconvenience of defending such an application unless the interests of justice so dictate. 3 Patricks has a right to rely on time limits under the Act, and the absence of prejudice is not a factor which can necessarily have an influence in favouring an extension of time.4 The mere absence of any prejudice to Patricks is an insufficient basis upon which to grant an extension of time.5
Legislation
[10] By virtue of s. 394 (2) of the Act an application for an unfair dismissal remedy must be made within 14 days after the dismissal took effect, or within such further period as FWA allows under s. 394(3). That sub-section provides as follows:
(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.
[11] In Parker v Department of Human Services 6Commissioner Whelan reviewed a number of decisions of the Full Court of the Federal Court dealing with the term “exceptional circumstances”, and noted that the following interpretation of the term had been endorsed as providing assistance:
“We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is out of the ordinary course, or unusual or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly or routinely, or normally encountered.” 7
Conclusions
[12] In my view, a dismissed employee who entrusts an officer of a Union, of which he or she is a member, to lodge an unfair dismissal claim has a legitimate and reasonable expectation that the necessary steps will be taken in the time and the manner required under the Act. Regardless of whether the error in filing the application was a clerical error or an error of law, it is not a regular or routine circumstance or a circumstance that is routinely or normally encountered, that there is an error on the part of an officer of a Union in calculating the time in which an application for an unfair dismissal remedy should be filed.
[13] There is nothing to suggest that the reason for the delay is other than that which was deposed to by Mr Giddins. The issue of when Mr Simpson first became aware of the dismissal is not relevant in this case. The uncontested evidence of Mr Giddins is that Mr Simpson’s dismissal was contested through representations made to Patricks during the investigative process which lead to the dismissal. There is nothing in the Act to suggest that consideration of whether action was taken to contest the dismissal is limited to action taken after the dismissal took effect. In the present case, Mr Simpson was represented by the MUA in the investigative meetings which resulted in Patricks determining to dismiss him. Those meetings were held on 29 December 2009 and 10 January 2010. At very least, Patricks would reasonably have known that the MUA on behalf of Mr Simpson was contesting the allegations which lead to the dismissal of Mr Simpson, before the dismissal took effect. In those circumstances I doubt that it came as any surprise to Patricks that the application for a remedy for unfair dismissal was filed on behalf of Mr Simpson, even if that application was filed outside the required time.
[14] The absence of prejudice to Patricks is not determinative of whether time should be extended, but it is a factor that is relevant to the overall consideration of whether the discretion of FWA to extend time should be exercised. There is no evidence of prejudice to Patricks as a result of the application for an unfair dismissal remedy being lodged outside the time required in s. 394(2) of the Act, other than that which would result from having to defend the application. The application was filed one day outside the required time. There is no evidence that Patricks has acted in reliance on the failure of Mr Simpson to file an application within the required time. Mr Simpson has not emerged from left field to contest his dismissal after a considerable period of time has elapsed, and the delay of one day is not extensive.
[15] Patricks properly concedes that there are factual issues in dispute between the parties, that cannot be determined without proper consideration of evidence. In these circumstances, the merits of the application are not a factor which weighs against the exercise of the discretion to extend time. Patricks also concedes that there are no other employees in similar circumstances, and this is not an applicable consideration in this matter.
[16] In all of the circumstances, I am satisfied that this is a case where the discretion in s. 394 of the Act should be exercised in favour of Mr Simpson. I order that the time for filing U2010/5670 be extended to 29 January 2010.
COMMISSIONER
1 Wilson v Woolworths [2010] FWA 2480 at [22] per Richards SDP.
2 Lim v Downer EDI Mining [2009] FWA 457 per Williams C; Shields v Warringarri Aboriginal Corporation [2009] per Kaufman SDP; Parker v Department of Human Services, Southern Metropolitan Region [2010] FWA 1638.
3 Brodie-Hanns v MTV Publishing Pty Ltd (1995) 67 IR 298 at 300.
4 Tunicliff v Craft Brooks Pty Ltd ATF the Howard Family Trust T/A Central Hotel [PR 986092] 12 March 2009, per Harrison C
5 Brodie-Hanns op. cit. at p. 300.
6 [2009] FWA 1638 per Whelan C.
7 R v Kelly, Edward [2000] 1 QB 198 at 208 per Lord Bingham Cornwall CJ in Mann v Minister for Immigration and Citizenship (2009) FCAFC 180.
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