Mr Michael Harvey v Transpacific Industries Group Pty Ltd T/A Transpacific Industries

[2013] FWC 1629

[2013] FWC 1629

FAIR WORK COMMISSION

DECISION

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

Mr Michael Harvey
v
Transpacific Industries Group Pty Ltd T/A Transpacific Industries
(U2013/5861)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 18 MARCH 2013

Extension of time - role of FWA advice - jurisdictional fact established before discretion to extend time

[1] This matter concerns an application under section 394 of the Fair Work Act 2009 (“the Act”) lodged on 23 January 2013. The application has given rise to two jurisdictional objections raised by the employer (“the Respondent”), which is Transpacific Industries Group T/A Transpacific Industries.

[2] The first of these objections was rostered centrally for determination, and concerned whether the application had been made within the timeframe stipulated at s.394(2) of the Act.

[3] Section 394(2) of the Act (as it was at the time of the dismissal) requires applications for an unfair dismissal remedy made under Division 4 of Part 3-2 of the Act to be made either:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under s.394(3). (my emphasis)

[4] Section 394(3) of the Act confers a discretionary power on the Fair Work Commission to allow a further period for an application to be made 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.

Background

[5] This matter turns on the date on which the Applicant’s dismissal took effect.

[6] The background to this matter is somewhat complicated and must be set out before turning to the particular matters relevant to the determination.

[7] It appears that the Applicant made an application under section 394 of the Act on 23 November 2012, but subsequently lodged a notice of discontinuance in relation to this application. He then lodged a subsequent application on 23 January 2013, which is the application now before me.

[8] The Applicant in this matter contends that he resigned his employment on 8 November 2012, and gave one month’s notice. The last day of his employment with the Respondent was therefore 7 December 2012.

[9] On 23 November 2012 the Applicant contacted Fair Work Australia, as it then was, and sought advice about how to lodge a claim for unfair dismissal as a result of a forced resignation.

[10] The Applicant claims that he was advised by Fair Work Australia (on 23 November 2012) that the termination date that he should put down on his application was the day that he resigned, being 8 November 2012.

[11] The Applicant went on to claim that Fair Work Australia advised him that his claim would be one day late (for purposes of s.394(2)(a) of the Act) but that did not necessarily mean that his application would be dismissed.

[12] The Applicant’s evidence in this regard requires some close attention. Under questioning, the Applicant did not claim that he put a specific question to Fair Work Australia as to what the date of dismissal would in effect be when he had resigned his employment (on 8 November 2012) but given one month’s notice.

[13] The Applicant quite clearly claimed to the contrary that he only enquired as to what the date of dismissal should be for the purposes of the application where he had resigned his employment on a particular date. The Applicant went on to say, however, that the conversation with Fair Work Australia thereafter turned to how he should conduct himself within the notice period following the resignation. In respect of this particular conversation Fair Work Australia directed the Applicant to the Fair Work Ombudsman.

[14] The Applicant’s evidence in this respect is quite compelling, because it is complex in structure. The Applicant did not assert the simple claim that Fair Work Australia misled him by advising him that the effective date of the dismissal should be the date of his resignation as opposed to the date on which his employment ceased with the Respondent. His evidence instead was that Fair Work Australia advised him that the date of the effective dismissal was the date of his resignation (which was his principal enquiry) but perhaps should have reconsidered that advice once it subsequently became aware that the Applicant was performing duties within an extended notice period.

[15] Following that discussion with Fair Work Australia, the Applicant lodged his application (on 23 November 2012).

[16] The Applicant was subsequently put on notice by the Respondent at the conciliation conference (conducted on 12 December 2012) that there may be a jurisdictional objection to his application as he had lodged the application prematurely. There may be sound reasons for this. Section 394(1) of the Act states that only a person who has been dismissed may apply to Fair Work Australia for an order under Division 4 granting a remedy.

[17] The Applicant heard nothing more about this apparent jurisdictional objection until such time as his listing for hearing of the substantive matter was cancelled on 16 January 2013. The application was relisted for a hearing for an extension of time.

[18] In this context, the Applicant sought legal advice about his circumstances.

[19] Because of this jurisdictional difficulty that now affected his application, on 22 January 2012 the Applicant discontinued his application (as made on 23 November 2012) and lodged a new application (the following day).

[20] This application was some 31 days beyond the 14 day period within which an application should be lodged to comply with the requirements of s.394(2)(a) of the Act (given that the actual date the dismissal took effect - as it is alleged to have been - was 7 December 2012).

[21] Given this factual background I must now determine whether or not there are exceptional circumstances, taking into account the matters set out at s.394(3) of the Act that warrant allowing the application notwithstanding its non-compliance with s.394(2)(a) of the Act.

What was the reason for the delay?

[22] The reason the Applicant discontinued his initial application was that he was advised by Fair Work Australia (as it then was) that the date the dismissal took effect was the date of the notification of the Applicant’s resignation. This advice, as the Applicant says was given to him by Fair Work Australia, led the Applicant into error. His application as lodged on 23 November 2012 was prior to the alleged forced resignation/dismissal taking effect (on 7 December 2012).

[23] The Applicant did not put the specific question to Fair Work Australia as to what the effective date of the dismissal would be where he resigned his employment on 8 November 2012 but provided one month’s notice (with the last day of employment being 7 December 2012). But in the context of the conversation as it thereafter developed and which made express reference to the existence of a notice period following the date of resignation, it appears entirely reasonable to expect that Fair Work Australia might have reconsidered its advice. It did not do so.

[24] While the issue of the jurisdictional status of his application came into question at the conciliation conference (of 12 December 2012) at the Respondent’s initiative, the Applicant was unaware that there was a formal jurisdictional objection to his application until the Fair Work Commission cancelled his substantive hearing on 16 January 2013.

[25] The Applicant thereafter sought legal advice on 21 January 2012, some five days later (two days of which were accounted by a weekend) which confirmed the jurisdictional doubt as to the status of his application as he had not been dismissed at the time he made his application on 23 November 2012. The Applicant filled in and signed a new application on 22 January 2012. He filed his notice of discontinuance that same day. However to avoid confusion, he did not make his new application until 23 January 2012 (which is an entirely reasonable step to have taken).

[26] I have no reason not to believe the Applicant is genuine in his recollection of the exchange with a representative of Fair Work Australia. The Applicant was consistent in his evidence and confident in his recall under questioning. As I have stated above, the Applicant’s evidence was structured and his interactions with Fair Work Australia carefully recounted (and importantly not in a way which was in the least self-serving). I have set this out in my earlier discussion of the evidence.

Whether the person first became aware of the dismissal after it had taken effect

[27] There are no relevant considerations for the purposes of section 394(3)(b) of the Act.

Any action taken by the person to dispute the dismissal

[28] In making his prior application in advance of the alleged constructive dismissal taking effect the Applicant did demonstrate, to the extent that it is relevant, that he was motivated to challenge the circumstances that resulted in the employment relationship coming to an end. It does not seem that the Applicant took steps after his resignation to challenge the fact of his resignation (or agitate the constructive dismissal argument). It would probably be unusual to do so.

Prejudice to the employer (including prejudice caused by the delay)

[29] There is no ostensible evidence from the employer’s part of any prejudice of any identifiable substance such that it bears materially upon my considerations. The Respondent contended that the matter might be stale, but there was no concrete evidence to that effect. I also note that the Applicant changed the grounds of his application, perhaps in the way he framed his argument and characterised the Respondent’s conduct. I think that there is some measure of prejudice to the Respondent because the terms of the application have been altered and there are new concerns, in effect, that it now must consider afresh.

Merits of the application

[30] The merits of the application are not matters into which I have enquired and nor have I had an opportunity to do so because of the central rostering system by which this jurisdictional matter has been listed and allocated. As a consequence, the merits of the application as they may be, bear neutrally upon my considerations.

Fairness as between the person and other persons in a similar position

[31] No matter arises in this application that gives rise to any circumstances in which I am required to compare and contrast the fairness of my approach relative to another person in a similar situation, if that is the intended effect of s.394(3)(e) of the Act.

Consideration

[32] Taking into account all the matters arising in s.394(3) of the Act, I am inclined to the view that exceptional circumstances exist that warrant allowing the application in a different period than that stipulated at s.394(2)(a) of the Act.

[33] This is because the application is fundamentally out of time because of the intervention of Fair Work Australia. Absent that intervention, which caused the Applicant to not be aware that his application was jurisdictionally incompetent until 21 January 2013, the Applicant would have complied readily with the lodgement timeframe required by the Act.

[34] I come to this view because the Applicant had been active in agitating his desire to challenge the circumstances of the cessation of his employment with the Respondent. Further, the Applicant acted within three working days after becoming aware that there was indeed an actual jurisdictional objection to his application to obtain formal legal advice as to the jurisdictional competence of his application. Two days after that advice was received he lodged a new application with the Fair Work Commission. It is this application that is now before me.

[35] A person approaching a public organisation vested with responsibilities in relation to the national workplace relations system should have confidence that the advice that is received will have a degree of accuracy in relation to procedural matters. Of course, I have only the evidence of the Applicant to rely upon for the purposes of such a conclusion. But as I have commented earlier, the Applicant’s evidence appeared to me to be genuine and to arise from a sound recollection of the conversations that took place and, because of its very structure, was not self-serving.

[36] The jurisdictional predicament in which the Applicant found himself was because of the advice given to him by Fair Work Australia.

[37] I add that nothing in my view turns on the delay, if it could be so described, in obtaining legal advice at short notice, or the 48-hour delay in lodging a new application following the receipt of the legal advice on 21 January 2013.

[38] No other considerations arising under s.394(3) of the Act bear in any material or substantial way upon my judgement in this regard other than in respect of the prejudice to the employer. But even if I accord weight to this consideration it does not persuade me that in all the circumstances the application should be allowed because there are exceptional circumstances overall.

[39] I will therefore allow the application as lodged on 23 January 2013.

[40] There is a second jurisdictional objection to which I must turn in due course. This current matter was rostered only for the determination of the above jurisdictional objection and the parties were disinclined (upon my enquiries) to combine the two matters given some complexities arising in relation to disclosure in the second jurisdictional objection. The parties will be notified of a new listing in respect of whether or not the Applicant was dismissed at the initiative of the employer/whether the Applicant was forced to resign his position because of the conduct or course of conduct of his employer.

[41] I comment in concluding that there is an arguable case that the determination of the jurisdictional question concerning whether or not there was a dismissal at the initiative of the employer (viz s.394(1) of the Act, s.385(a) of the Act and s.386(1)(a) of the Act) should proceed the determination of a question under s.394(2)(b) of the Act. This is because an application should be capable of identification as a jurisdictionally competent application before such time as it is considered for purposes of being allowed in a different period of time than that stipulated at s.394(2)a of the Act. That is, the Commission should firstly establish the jurisdictional fact as to whether there was a dismissal at the initiative of the employer before it turns to exercise its discretion to allow an application that is predicated on the existence of that very fact.

[42] In short, there can be no application for the purposes of s.394(1) of the Act (in respect of which FWC can exercise its discretion under s.394(2)(b) of the Act) unless, firstly, there has been a dismissal at the initiative of the employer.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr M. Harvey, Applicant

Mr P. Ryan, for the Respondent

Hearing details:

2013

14 March

Brisbane

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