Mr Matthew Anderson Mr Brendan Neil Mr Trent Johnson Mr Keith Greer Mr Simon West Mr Haydyn Lucasv Theiss Degremont Joint Venture
[2011] FWA 7646
•10 NOVEMBER 2011
[2011] FWA 7646 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Matthew Anderson
Mr Brendan Neil
Mr Trent Johnson
Mr Keith Greer
Mr Simon West
Mr Haydyn Lucas
vTheiss Degremont Joint Venture
(U2011/9569, U2011/9698, U2011/9700, U2011/9708, U2011/9710, U2011/10340)
COMMISSIONER LEWIN | MELBOURNE, 10 NOVEMBER 2011 |
Unfair dismissal - extension of time - exceptional circumstances
[1] On 9 September I issued a decision [PR514277] to allow a further period of time within which each of the applicants in these matters could file an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The applications were all filed by the Construction, Forestry, Mining and Energy Union (CFMEU) on behalf of the applicants. The CFMEU represented the applicants in the proceedings before the Tribunal in relation to the applications.
[2] At the time that decision was made I was about to proceed on a period of leave. In order to facilitate the expeditious determination of the applications and others, arising from what are said by Thiess Degremont to be a large number of cases of genuine redundancy at the Victorian desalination plant project of Theiss Degremont Joint Venture, a summary decision with more extensive reasons to follow was issued. These are those reasons and should be read in conjunction with my earlier decision.
[3] The following is a table showing the delay beyond the statutory time limit for the filing of each of the applications, submitted by Thiess Degremont:
No. | Name | Date Notified | Date Due | Date Lodged | Days Late |
1 | Neil | 23 June | 7 July | 11 July | 4 |
2 | Anderson | 17 June | 1 July | 6 July | 5 |
3 | Johnson | 17 June | 7 July | 11 July | 4 |
4 | Greer | 23 June | 7 July | 11 July | 4 |
5 | West | 23 June | 7 July | 11 July | 4 |
6 | Lucas | 17 June | 1 July | 1 August | 31 |
[4] The CFMEU did not submit that this table was in any way in error.
[5] I consider the delay in filing each of the applications is not great, with the possible exception of Mr Lucas. I note that Thiess Degremont specifically distinguishes the extent of the delay in Mr Lucas’ case. I agree that the extent of that delay is greater than otherwise among the applicants. I will refer to the extent of the delay in the filing of Mr Lucas’ application and take Thiess Degremont’s submission in this particular respect into account at the conclusion what follows.
[6] I must be satisfied that exceptional circumstances exist for the applications to be accepted within a further period of time to that prescribed by s.394(2)(a) of the Act. For the purposes of considering whether or not I should be so satisfied I am required to take into account a number of matters as set out in s.394(3). The relevant statutory provisions are set out below:
“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.
Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(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.”
[7] I summarised the reason for the delay in filing the applications in my decision of 9 September 2011, at paragraph [9] thereof, and made findings and observations in relation to the other statutory considerations. I took all of those matters into account for the purposes of my decision to allow a further period for the filing of the applications.
[8] I now turn to provide more extensive reasons for my conclusions in relation to the reasons for the delay in filing the applications. In particular my conclusion, as stated in paragraph [9] a) of my September 9 decision, that the applicants “apprehended that making an unfair dismissal application would likely cause a disadvantage to their prospects of being rehired at the desalination plant because of statements made by Thiess Degremont.”
[9] In my decision of 9 September I did not refer to the evidence upon which this conclusion was based. Before turning to a discussion of that evidence it is useful to describe the context in which the applications arose.
[10] In May 2011, approximately, Theiss Degremont decided that it would make a significant change to work organisation at the desalination plant construction project. The change was to the rostering of the hours of work of employees on the project. All of the applicants were affected by that decision. It is submitted that the change was made in the interests of efficiency for completion of the project. Thiess Degremont informed its employees and their union that, as a consequence of the new roster arrangement, a number of employees, approximately 160, would no longer be required and were to be made redundant. The applicants’ employment, along with that of many others, was terminated as a result of this, on the basis that either the work they were performing was no longer required or they were surplus to the requirements of Thiess Degremont for the work they performed. It is pertinent to note that a number of the employees among the approximate 160 whose employment was terminated for this reason made applications under s.394, within the statutory time limit prescribed by s.394(2)(a).
[11] An industrial dispute of various dimensions arose around the decision of Thiess Degremont to change the roster of work and terminate the employment of the abovementioned employees. The dispute has been the subject of applications in the Federal Court of Australia and this Tribunal, of different kinds. The CFMEU also sought to have the disputed matters arising from Thiess Degremont’s decision and the notification of termination of employment to the relevant employees dealt with by a dispute resolution body, which is provided for by the Victorian Desalination Project Greenfields Agreement 2009. That enterprise agreement governs the employment relationships between Thiess Degremont and their employees affected by the decision to change the work roster, including the applicants. The dispute resolution body is known as the Project Dispute Panel (the Panel).
[12] On 28 June 2011 the Chairman of the Project Dispute Panel, Mr Simmonds, convened the Panel to deal with an application by the CFMEU in relation to the terminations of employment arising from the roster change. Thiess Degremont submitted to Mr Simmonds that the subject matter of the dispute was not within the jurisdictional boundaries of the Panel’s constitution, in accordance with the terms of the Agreement under which it has been established.
[13] Mr Simmonds decided that Thiess Degremont’s submissions were correct and adjourned the Panel without the Panel dealing with the dispute. However, Thiess Degremont and the CFMEU agreed to seek the assistance of Mr Simmonds in relation to the dispute on a private basis. A meeting was convened immediately following the conclusion of the proceedings of the Panel, to address the dispute by way of an agreed private conciliation conference, chaired by Mr Simmonds.
[14] Persons present at that private conciliation conference were as follows:
● Jim Simmonds, Chairman Dispute Resolution Panel and private conciliation service provider.
● Julian Rzesniowiecki, General Manager People Safety and Environment, Theiss Degremont
● Andrew Ermer, Employee Relations Manager, Thiess Degremont
● Raoul Wainwright, Industrial Officer, CFMEU
● Noel Washington, Senior Vice President, CFMEU
[15] All of those persons gave evidence at the hearing of the application before me on 1 September 2011, in relation to certain aspects of what was said by the participants at the conference.
[16] The attempt at private conciliation of the dispute arising between the CFMEU and Thiess Degremont is of relevance insofar as what was said at the meeting touches upon the circumstances in which the applications in this matter were filed outside the prescribed time for doing so. In addition, whether what occurred at that meeting gave rise to circumstances which might be described as exceptional.
[17] The evidence of the participants establishes that at the private conciliation conference Theiss Degremont informed the CFMEU of a proposal that it would establish a labour pool, which Thiess Degremont would draw upon to fill job vacancies at the desalination plant construction project. Subject to what follows, employees whose employment had been terminated in the circumstances under discussion would be included in the labour pool.
[18] The evidence of Mr Wainwright establishes that the applicants were of the view that their priority was to achieve an outcome to the dispute that would see them resume employment, as soon as practicable, at the desalination plant construction project. There were some reasons advanced for this. Mr Wainwright’s evidence is unchallenged, I consider the applicants were disputing the termination of their employment through their union and were being represented for this purpose by the CFMEU, in an agreed private conciliation conference, with the object of maximising their earliest possible re-employment on the desalination plant construction project.
[19] For the applicants then the possible outcome of their re-employment through the labour pool was a very real consideration in the particular circumstances. I accept Mr Wainwright’s uncontested evidence to the effect that, by whatever means, re-employment on the desalination plant construction project was the first and motivating priority of the applicants. In these circumstances attempts at achieving this objective through an agreed private conciliation conference, is a relevant circumstance. In particular, therefore, the intention of Thiess Degremont to create the labour pool in this context and their policies in relation to how it would be administered was of vital interest to the applicants.
[20] At the meeting between the abovementioned participants on 28 June 2011 statements were made by Thiess Degremont about how the labour pool would operate. The statements are the subject of conflicting evidence. In summary, the conflict concerns what was stated by Mr Ermer and/ or Mr Rzesniowiecki concerning the operation of the labour pool.
[21] The accounts given by Mr Simmonds, Mr Wainwright and Mr Washington are that Mr Ermer said that if an employee made an unfair dismissal application to Fair Work Australia that employee would not be included in the labour pool. The account given by Mr Ermer and Mr Rzesniowiecki is that what was said was not said by Ermer but rather Mr Rzesniowiecki said that an employee who made an unfair dismissal application to Fair Work Australia would not be given “priority rights” 1 in the labour pool to obtain a resumption of employment on the desalination plant construction project
[22] It may be conveniently observed at this point that either consequence would be adverse to the interests of the applicants, all of whom prioritised re-employment on the project at the earliest opportunity as the outcome of the process they were most interested in achieving.
[23] It is submitted by the CFMEU that Theiss Degremont’s statements constitute adverse action within the meaning of the General Protections provisions of the Act, specifically s.342. It is neither legally effective or necessary for the purposes of this decision that I make a finding in relation to this issue.
[24] The reason advanced by Mr Rzesniowiecki for a statement to the effect that employees whose employment was terminated as a result of the roster change who made unfair dismissal applications would not be provided with “priority rights” in the labour pool is as follows:
“Well, what we said is that, you know, if people went through the dispute resolution process before Simmonds that they wouldn't be - well, they would be - you know, that wouldn't affect the fact that we would give them priority to - you know, within the labour pool, but if people took other proceedings against us, say in FWA, then we wouldn't give them the same priority; they would just be treated as all the other employees would be under the (indistinct) so we'd give priority to the people who didn't sort of - you know, there hadn't been sort of a breakdown in the relationship between ourselves and themselves. There was one exception to that. We were having a dispute about a fellow called Frank Brennan. In fact Noel and I had a discussion about that matter, after the meeting, and he was being treated in a different way. We did say that we weren't interested in re-employing him on the project. 2
...
So if they went through the process with Mr Simmonds, the company might consider re-employment as part of the outcome of that process, but if they lodged the unfair dismissal claims, the company would not include them in any priority listing in the labour pool. That's correct?---Yes, that's correct.” 3
[25] In light of this evidence, I think it reasonable to assume that Thiess Degremont viewed employees who made unfair dismissal applications to Fair Work Australia arising from the terminations to be less desirable as future employees than those who refrained from doing so, because, in Thiess Degremont’s view, the employment relationship between Thiess Degremont and those persons had broken down. It would seem that inclusion of such a person in a labour pool from which employees would be employed when vacancies arose would seem contradictory or likely superfluous. On the other hand it may be that those persons would simply come last in an order of re-hiring. This would possibly lead to such persons having little, if any, prospect of re-employment before the completion of the project.
[26] In light of the conflict in the evidence I must determine which account of what was said by whom at the private conciliation conference I will accept. I consider it appropriate to do so for the purposes of determining how the statements made by Thiess Degremont bear on the reason for the delay in the filing of the application and whether there are exceptional circumstances arising in light of those statements.
[27] I have carefully considered the evidence. I have decided to accept the evidence of Mr Simmonds, which evidence is corroborated by Mr Wainwright and Mr Washington. I have done so because Mr Simmonds was neither a protagonist or an antagonist in the dispute. Rather, Mr Simmonds may be reasonably viewed as an agreed independent third party in relation to the dispute, with no stake in the outcome. Mr Simmonds was also an observer of, rather than an active participant in, the relevant verbal interactions between the representatives of the CFMEU and Thiess Degremont at the meeting. In my view, his evidence is to be preferred.
[28] I therefore find that it is more likely than not that at the private conciliation conference on 28 June 2011 Mr Ermer said that employees who made unfair dismissal applications would not be included in the labour pool.
[29] Mr Wainwright communicated this to the applicants. I find that this had a deterrent effect upon the applicants’ consideration of filing an unfair dismissal application that lead to a delay in filing the applications with Fair Work Australia.
[30] Before proceeding to address whether or not there were exceptional circumstances which were applicable to the filing of the applications beyond the statutory period one can consider the alternative to my finding above, in relation to the statements made by Theiss Degremont at the private conciliation conference. If I were to have accepted the evidence of Mr Rzesniowiecki and Mr Ermer, and Mr Wainwright had mistakenly communicated the complete exclusion from the labour pool of persons who filed unfair dismissal applications, rather than denial of “priority rights” through the labour pool, in my judgement, the deterrent effect of communicating the latter intention would have been just as relevant and effective. The message to the applicants would still have been that filing an unfair dismissal claim would significantly prejudice or limit the re-employment prospects of the applicants at the desalinisation plant construction project.
[31] In Christopher Johnson v Joy Manufacturing Co Pty Ltd 4what will constitute exceptional circumstances for the purposes of s.394(3) was dealt with by Lawler VP as follows:
“[25] There have only been a handful of decided cases on extension of time, under the FW Act. In only two of those cases has there been any consideration of what is meant by “exceptional circumstances”.
[26] In Shields v Warringarri Aboriginal Corporation Kaufman SDP said:
“The requirement that there be exceptional circumstances was not found in the Workplace Relations Act 1996 (the WR Act), the Act that preceded and was repealed by this Act. [FW Act]. Time for making an application under the Act [FW Act] is also shorter than it was under the WR Act: 21 days under the WR Act and 14 days under the Act [FW Act]. It seems to me that the alterations between the two acts evince an intention by the parliament that applications for relief should be confined to 14 days, except in rare cases; cases where there are exceptional circumstances. The use of the word "exceptional" also, in my view, evinces an intention that the hurdle for extensions of time is higher under the Act [FW Act] than it was under the WR Act.”
[27] In Parker v Department of Human Services, Whelan C addressed the issue as follows:
“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
[31] Dealing with the expression 'exceptional circumstances' as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:
Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, 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.”
[Mann v Minister for Immigration and Citizenship [2009] FACFC 150]
[28] While I agree with Kaufman SDP that the introduction of the requirement that there be “exceptional circumstances” means that “the hurdle for extensions of time is higher under the [FW Act] than it was under the WR Act.” However, with respect, I prefer the analysis of Whelan C in relation to what constitutes “exceptional circumstances” and I adopt it. The articulation of the meaning of the word “exceptional” relied upon by the Full Court in the judgment cited by Whelan C was directed at the ordinary English meaning of the word and, in the absence of any indication to the contrary in the FW Act, that is the meaning to be given to the word “exceptional” in s. 394(3).” 5
[Original footnotes deleted]
[32] In my view, the circumstances arising from the disputed decision of Thiess Degremont to terminate the employment of the applicants and the context in which that dispute arose and was dealt with were outside of the usual run of circumstances which arise when an employee’s employment is terminated. In particular, the circumstances comprised of, constitution of an agreed private conciliation conference, to deal with the disputed terminations, the potential satisfaction of the applicants interests in early re-employment through that process and the statements by Thiess Degremont to the effect that those prospects would be significantly prejudiced by the filing of an unfair dismissal application are, in my view, relevant and exceptional. The circumstances which gave rise to hesitation and delay of the applicants in filing the applications are not regularly, routinely or normally encountered by persons contemplating the making of an unfair dismissal application under .s394 of the Act, rather they are uncommon and out of the ordinary.
[33] On what was before me, in my view, the findings expressed in my decision of 9 September at paragraph [9] at subparagraphs b), c), d) and e) are uncontroversial and require no further elaboration.
[34] In respect of Mr Lucas’ application, I consider that the exceptional circumstances I have identified above bear the relevant similarity identified in subparagraph f) of paragraph [9] of my decision of 9 September. Notwithstanding the greater delay in the filing of Mr Lucas’ application fairness as between him and the other applicants in a similar position favours the exercise of the discretion to allow further time for Lucas’ application to be filed.
COMMISSIONER
Appearances:
R Wainwright for the Construction, Forestry, Mining and Energy Union
N Campbell of Counsel for the Construction, Forestry, Mining and Energy Union
N Harrington of Counsel for Thiess Degremont Joint Venture
Hearing details:
2011
Melbourne
August, 29
September, 1
1 Transcript, PN 813-815
2 Ibid, PN 820
3 Ibid, PN844
4 [2010] FWA 1394
5 [2010] FWA 1394 at PN [28].
Printed by authority of the Commonwealth Government Printer
<Price code C, PR516467>
0
2
0