Mr Ludwig Cugura v Frankston City Council

[2011] FWA 2455

[2011] FWA 2455

FAIR WORK AUSTRALIA

DECISION

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

Mr Ludwig Cugura
v
Frankston City Council
(C2011/3810) and (C2011/4023)

COMMISSIONER ROE MELBOURNE, 21 APRIL 2011

Decision - general protections dispute- jurisdiction: extension of time.

[1] On 14 April 2011, I issued a decision in the matter C2011/3180 dismissing a jurisdictional objection in respect to Section 725 of the Fair Work Act 2009 (the Act) concerning multiple applications 1. This decision deals with the remaining jurisdictional objection concerning extension of time.

[2] The application C2011/3810 was made 28 March 2011. Mr Ludwig Cugura (the Applicant) made an application pursuant to Section 365 of the Act alleging contravention of Part 3-1 of the Act involving dismissal.

[3] On 6 April 2011, Macpherson and Kelley Lawyers for the Frankston City Council and Melissa King, Steven Dickson, Jane Homewood and George Modrich (the Respondents) wrote to Fair Work Australia raising two jurisdictional objections to a conciliation conference being conducted pursuant to Section 368 of the Act.

[4] The two objections are firstly, that the application is out of time and an extension has not and should not be granted, and secondly, that the application is barred due to the operation of Section 725 in that the Applicant has made an application under the Equal Opportunity Act 1995 (Vic) (the EO Act) in relation to his dismissal.

[5] On 14 April 2011, I dismissed the multiple applications jurisdictional objection.

[6] In that decision, I noted that I had adjourned into conference and conducted a without prejudice conference to explore a resolution to the matter. At the end of that conference, I concluded and the parties had agreed that conciliation of the matter was unlikely to be successful 2.

[7] In that decision I also found:

“Subsequent to the hearing on 12 April 2011, the Applicant has filed a third Application under Section 365 of the Fair Work Act. The third application is in identical terms to the second application save for the facts that:

• the third application has been received by Fair Work Australia on 13 April 2011; and

• it excludes the named individual employees as Respondents; and

• it is accompanied by an email which firstly withdraws and amends the second application (C2011/3810) and secondly attaches an email which was sent by the Applicant to Ms Wu of the VEOHRC on 7 April 2011 “to confirm that VEOHRC File Number 3086157 regarding my complaint against Frankston City Council is withdrawn, cancelled and terminated”.

I am satisfied that the Applicant took the action of filing a third Application under Section 365 in response to the strongly put submissions of Mr Eichenbaum for the Respondent at the hearing on 12 April 2011 that the Application was barred due to Section 725 because the Applicant has still not clearly withdrawn his VEOHRC application prior to the date of making the second Application under Section 365.

I am therefore satisfied that if I am wrong that the second application is not barred by reason of Section 725 then I am satisfied that the third application is not barred by reason of Section 725.”  3

[8] The third Application referred to above is C2011/4023. The parties to this application pursuant to Section 365 of the Fair Work Act 2009 (the Act) alleging contravention of Part 3-1 of the Act involving dismissal, are Mr Cugura and Frankston City Council.

[9] To avoid any doubt I am satisfied, given that the amending of (C2011/3810) or the filing of a revised application (C2011/4023) was extensively canvassed in the conference and hearing of 12 April 2011, that the conclusions reached in respect to C2011/3810 in the decision of 14 April 2011 are equally applicable to the revised application C2011/4023. Following the issuing of my decision on 14 April 2011, I consulted the parties who agreed with this approach. I am satisfied and the parties concur that there is no utility in further conciliation of this matter before Fair Work Australia.

[10] In my decision of 14 April 2011, I summarised the sequence of events relevant to this matter as follows  4:

• The Applicant was dismissed by the Frankston City Council on 3 September 2010 for gross misconduct.



• On or about 14 September 2010 the applicant filed a complaint with the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) alleging that in terminating his employment, the respondent had discriminated against him on the basis of impairment, carer and parental status in the area of employment. The Applicant sought relief relating to the termination of his employment.



• On 30 September 2010 the Respondent employer provided a response to the complaint to the VEOHRC.



• On 8 November 2010 the Applicant filed a Section 365 General Protections dispute application with Fair Work Australia in almost identical terms to the present application.



• On 9 November 2010 VEOHRC advised the Respondent employer that it had closed its file on the basis that conciliation was unlikely to be successful. Pursuant to Section 113(2) of the EO Act the Applicant had 60 days to advise that he wished to proceed with the matter in the Victorian Civil and Administrative Tribunal (VCAT).



• On 30 November 2010 Deputy President Hamilton at Fair Work Australia conciliated the Section 365 General Protections Application and issued a certificate that the matter was not resolved through conciliation which enabled the matter to proceed in the court.



• On 13 December 2010 the Applicant commenced proceedings in the Federal Magistrates Court in respect to the general protections application.



• On 14 January 2011 the VEOHRC issued a Notice of Dismissal of Complaint with respect to the VEOHRC Complaint.



• On 10 March 2011 the matter was heard by Federal Magistrate O’Sullivan.



• In the proceedings before his Honour the Applicant claimed that he had in fact withdrawn the VEOHRC complaint prior to filing the general protections application with the Federal Magistrates Court. The Applicant claimed that on 15 October 2010 he informed an employee of VEOHRC, Ms Karin Wu, that he was not pursing his complaint with the VEOHRC. A handwritten note was submitted as evidence supporting this contention.



• The parties and the Federal Magistrate proceeded on the basis that the VEOHRC complaint and the general protections dispute are both in relation to the dismissal. Therefore, the general protections dispute is statute barred unless the VEOHRC complaint was either withdrawn or failed for want of jurisdiction prior to the commencement of the Federal Magistrates Court proceedings.



• The Federal Magistrate O’Sullivan found in his decision of 25 March 2011 5 that the withdrawal of the complaint probably needed to be in writing. His Honour found that the evidence of documents from the VEOHRC supported a finding that the application was still on foot. His Honour was not convinced by the evidence produced by the Applicant of withdrawal. His Honour found that “I am not satisfied that the complaint had been withdrawn before this application was filed”.6



• His Honour also noted that the Applicant “can apply again to Fair Work Australia” pursuant to Section 366 of the Fair Work Act 2009. 7 Section 366 provides for the granting of an extension of time in exceptional circumstances. The Applicant referred to this comment of the Federal Magistrate in his new application which I am currently considering.

[11] It should be noted that I make a correction to the date referred to in my decision of 14 April 2011 in relation to when the Applicant lodged his first application with Fair Work Australia. The first application was in fact filed with Fair Work Australia on 22 October 2010 and served on the Respondent on 8 November 2010. 8 November 2010 was the date upon which the Applicant provided the Respondent with a copy of the first application.

[12] At the hearing of the jurisdictional objections on 12 April 2011, the Applicant appeared for himself. The Respondent was represented by lawyers Mr Sam Eichenbaum and Ms Michelle Dawson. The Applicant did not object and I granted leave for them to appear in this matter. The submissions at that time mainly related to the multiple applications objection. I provided the parties with the opportunity for a further hearing in respect to the extension of time matter in the event that I dismissed the multiple applications objection. On 20 April 2011, Frankston City Council advised that they did not wish to make any submissions in respect to extension of time and that they “neither consent to nor oppose the sought extension of time”.

[13] The Act provides:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

[14] I adopt the approach to the question of exceptional circumstances for the extension of time taken by Vice President Lawler:

“In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”  8

[15] The Applicant signed and dated the second application (C2011/3810) on the same day as Federal Magistrate O’Sullivan issued his decision. The application was received by Fair Work Australia three days later on 28 March 2011. I am satisfied that the Applicant made his application has soon as possible after the decision of Federal Magistrate O’Sullivan. The period between the issuing of the certificate by Deputy President Hamilton on 30 November 2010 and the 25 March 2011 was completely taken up by the proceedings before Federal Magistrate O’Sullivan. The Applicant is not responsible for this period of delay. Hence the delay is purely attributable to the process of dealing with the earlier jurisdictional proceeding brought by the Respondent.

[16] The period between 25 March 2011 and the hearing on 12 April 2011 was completely taken up by proceedings before Fair Work Australia and the jurisdictional objections of the Respondent in particular. The Applicant made the third application (C2011/4023) and withdrew the second application on 14 April 2011. This was two days after the hearing on 12 April 2011 where the Applicant, having heard the submissions of Mr Eichenbaum for Frankston City Council, agreed his application should be amended to remove the individual Respondents. I had also commented during this process that it would be difficult for Mr Cugura to justify an extension of time in respect to the named Respondents, given that they had not been included in the original application which had been the subject to proceedings before DP Hamilton and Federal Magistrate O’Sullivan. The delay is purely attributable to the processes before Fair Work Australia.

[17] There is no doubt that the Applicant has vigorously pursued a remedy in respect of his dismissal throughout the period since the dismissal.

[18] The Applicant submitted that Frankston City Council has made an offer of a negotiable financial resolution of $7000 in respect to the VEOHRC complaint 9. This suggests that the application is not totally without merit. Based upon the materials of which I am aware, I am satisfied that the application is not frivolous or totally without merit. The Respondent has not been required and I am not privy to a detailed defence of the allegations raised by the Applicant. I am therefore unable to make any further findings in respect to the merits of the case.

[19] I am not aware that there are any other persons in a like position.

[20] There is clearly some prejudice to the employer in having to deal with this matter so long after the dismissal event. However, the purpose of the anti-double dipping provisions 10 which caused the delay in this matter, is not to deny the Applicant their day in court but to prevent the Respondent from being twice vexed.

[21] I am satisfied that the delays consequent upon the proceedings before Federal Magistrate O’Sullivan and Fair Work Australia do constitute an exceptional circumstance which justifies the granting of the extension of time. I make this judgment taking into account each and all of the matters set out in Section 366(2). I have found that the prejudice to the employer caused by the delay does not outweigh the other factors associated with the reasons for the delay which stand clearly in favour of granting the extension of time. I have found this noting that the Applicant has vigorously pursued a remedy in respect of his dismissal throughout the period and that the Application is not totally devoid of merit.

[22] The extension of time having been granted and having conducted a conference on 12 April 2011 and being satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful conciliation is exhausted, I will now issue a certificate pursuant to Section 369 of the Act.

COMMISSIONER

 1   Mr Ludwig Cugura v Frankston City Council & Melissa King and others[2011] FWA 2292.

 2   Ibid at para 8.

 3   Ibid at paras 17-19.

 4   Ibid at para 5.

 5   Cugura v Frankston City Council [2011] FMCA 195.

 6   Ibid at para 45.

 7   Ibid at para 44.

 8   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848 at para 10.

 9   Cugura v Frankston City Council [2011] FMCA 195 at para 12.

 10 Section 725 of the Fair Work Act2009.

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