Mr Paul Bidinost v Orica Australia Pty Ltd

[2013] FWC 2089

[2013] FWC 2089

FAIR WORK COMMISSION

DECISION

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

Mr Paul Bidinost
v
Orica Australia Pty Ltd
(U2012/14640)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 9 APRIL 2013

Whether to extend time - conduct of paid agent - Employee Assist - only one of 22 phone calls returned in effect - whether representative error by paid agent - whether Applicant bears responsibility for conduct of matter - register of paid agents - amending legislation and paid agents - explanatory memorandum.

[1] On 30 October 2012 Mr Paul Bidinost (“the Applicant”) applied under s.394 of the Fair Work Act 2009 (“the Act”) for an unfair dismissal remedy in respect of the termination of his employment by Orica Australia Pty Ltd (“the Respondent”) on 2 October 2012.

[2] The Applicant had performed duties for the Respondent as a shot firer since May 2008.

[3] In the course of conducting detonations, regulatory requirements stipulate that the resultant explosions are to occur within a particular sound range. To ensure that these regulatory requirements are met sound monitors are set up around the explosion parameter. These monitors record the sound volume emanating from the explosion for the purposes of ensuring the manner in which the detonation took place accorded with the regulatory requirements.

[4] The Applicant’s dismissal was said by the Respondent, inter alia, to be for reasons that he had admitted that he had previously tampered with sound monitors by placing adhesive duct tape over the recording device so that the sound volume emanating from the explosion was artificially muted.

[5] The Applicant contends that the Respondent also accused him of conduct in relation to interfering with the sound monitors for which he was not responsible; that there was a culture of interfering with the monitors, and that the manner of his dismissal was harsh in that other employees in similar circumstances had been treated differently. The Respondent does not concur with this defence.

[6] Such is the broad brushed background to this matter in relation to the substantive merit.

[7] The issue that has arisen as a precursor to a consideration of the merit of the application is whether the application can be allowed given that it was made some 14 days outside of the requirements of s.394(2)(a) of the Act (as they applied to this pre-January 2013 application).

Legislative provisions

[8] 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)

[9] 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.

The reason for the delay

[10] The Applicant contends that on 3 October 2012, one day after his dismissal, he commenced researching on the internet matters relevant to an unfair dismissal.

[11] In the course of his research the Applicant states that he “found out that I had 14 days to lodge a complaint, and was determined to find a representative who would represent me well and meet all deadlines.”

[12] To this end, on 5 October 2012 the Applicant states that he contacted a Mr Amnon Kelemen, the Principal from Employee Assist. The Applicant states that he provided Mr Kelemen with the required information to enable Mr Kelemen to make an application for unfair dismissal remedy on his behalf within the requisite time frame.

[13] The Applicant relied on his discussion with Mr Kelemen and the Employee Assist website for reaching a view that Mr Kelemen could competently assist him.

[14] After a week had passed the Applicant states that he was “slightly surprised that I haven’t had any feedback from Mr Kelemen.” The Applicant forwarded a text message two days prior to the expiry of the 14 day period and enquired as to whether there were any problems in lodging the unfair dismissal claim.

[15] Mr Kelemen forwarded a text reply to the Applicant stating:

“No problems. All done.”

[16] The Applicant assumed his application was being progressed on the basis of this information.

[17] The Applicant thereafter waited a further seven days on the expectation that he would at that time receive a copy of the employer’s response to his application.

[18] After that period of time had elapsed, the Applicant states that he attempted to contact Mr Kelemen to gain access to the Respondent’s response to his application.

[19] The Applicant made a number of phone calls to Mr Kelemen but without success. He eventually reached Mr Kelemen on his landline and Mr Kelemen said that he would ring him back shortly and that he had encountered computer difficulties. Mr Kelemen is said not to have called the Applicant back.

[20] Further attempts were made to contact Mr Kelemen and messages were left that the business premises for him to return the Applicant’s call. Mr Kelemen is said not to have returned the Applicant’s call or responded to his messages.

[21] The Applicant tended his phone records in regards to these efforts to communicate with Mr Kelemen.

[22] Apart from two calls made to Mr Kelemen on Friday, 5 October 2012, the Applicant made two calls to Mr Kelemen on 8 October 2012, five calls to Mr Kelemen on 9 October 2012, two calls to Mr Kelemen on Friday, 12 October 2012, two calls to Mr Kelemen on Thursday, 18 October 2012, one call on Tuesday, 23 October 2012, a call on each of the 24 and 27 October 2012, a call on Sunday, 28 October 2012 and six calls on Monday, 29 October 2012.

[23] These calls were variously to Mr Kelemen’s mobile telephone but also to the 1800 number for Employee Assist itself.

[24] The only time Mr Kelemen contacted the Applicant in respect of these calls was his response by text message (confirming there were no problems and the application had been made on the Applicant’s behalf) on Friday, 12 October 2012.

[25] Apart from the two calls made on 5 October 2012, the Applicant made efforts to contact Mr Kelemen on some 22 further occasions by telephone and text message (and had been successful on only one of those occasions in achieving a substantive response - by text message).

[26] The Applicant discovered on or about 28 or 29 October 2012 that Mr Kelemen had made no application on his behalf to the Fair Work Commission (“the Commission”). He discovered this when the HR manager for the Respondent - Mr Moffitt - indicated to him in the course of a telephone conversation that no unfair dismissal claim against the Respondent had been lodged to his knowledge.

[27] Having been apprised of this information, the Applicant contacted the Commission on 29 October 2012. Mr Moffitt’s information was corroborated: Mr Kelemen had not lodged an application under s.394 of the Act on the Applicant’s behalf.

[28] The Applicant thereafter telephoned his current representative and explained his situation. An application was lodged the following day, 30 October 2012.

[29] The Applicant contends that his application is late not for reason of his own dilatory conduct but for reasons of representative error on behalf of the paid agent he had engaged to represent his interests: Mr Kelemen of Employee Assist.

[30] The Respondent contends that the Applicant is not blameless for the delay and cannot be shielded from responsibility for the late application by relying solely on his paid agent’s errors.

[31] The Respondent’s principal argument in this regard is that the Applicant ought to have reasonably been aware that Mr Kelemen was an unreliable agent to pursue his interest in relation to the dismissal.

[32] More specifically, the Respondent contends that the Applicant ought to have been aware by Friday, 12 October 2012 that Mr Kelemen was unreliable. This is because the Applicant made some eight attempts to contact Mr Kelemen between 8 October and 9 October 2012 all of which went unacknowledged by Mr Kelemen. He did not manage to get a text response from Mr Kelemen until the phone call of Friday, 12 October 2012, as cited above.

[33] The Respondent further contends that by 23 October 2012, whereupon it ought to have been self-evident to the Applicant that Mr Kelemen was deliberately evading his telephone calls and not fulfilling a term of the terms of engagement into which he had entered with Employee Assist (which included keeping the Applicant informed of the progress of his matter), that there was a problem with the lodgement of his application. The Respondent contends that the Applicant thereafter should have taken steps himself to identify the status of his application and acted to remedy the obvious problem.

[34] Instead, the Applicant persisted in fruitlessly attempting to contact Mr Kelemen up until 29 October 2012. And the Applicant so persisted despite having direct knowledge of the statutory timeline.

[35] The Respondent contends that the Applicant ought to have utilised e-mail or facsimile messages to Mr Kelemen. Given the above circumstances and the fact that Mr Kelemen had already signalled that he was having problems with his computer, I am not entirely sure the outcome would have been any different.

[36] The Respondent also contended that the Applicant was responsible for engaging the paid agent when there was sufficient public information available that Mr Kelemen had in other matters relating to the Commission that brought into question Mr Kelemen’s reliability as a representative in employment related matters.

[37] To this end the Respondent demonstrated that a cursory search of the Commission’s publicly accessible website - with which the Applicant had admitted some measure of familiarity - would have revealed that there were eight decisions which relate to Mr Kelemen in an adverse way over the period 2010 to 2012. And three other decisions reflecting on Mr Kelemen’s representative capabilities that appear to have misspelled his name (as “Keleman”).

[38] The Respondent argued, some force I should add, an Applicant has some measure of responsibility of ensuring that the representative he chooses to defend his interests is a person who has some demonstrable capabilities in the relevant field.

Any action taken by the person to dispute the dismissal

[39] Apart from seeking to make application in the manner set out above, the Applicant gave evidence that he had had direct contact with Mr Moffitt of the Respondent for the purposes of attempting to resolve the matters that had come into dispute. In so doing the Applicant had demonstrated that he challenged the decision making of the Respondent.

Prejudice to the employer

[40] There is no substantive prejudice for the employer that is likely to arise by allowing the application in a different time than that stipulated at s.394(2)(a) of the Act. The Respondent had been put on notice that the Applicant would challenge his dismissal in the course of his discussions with Mr Moffitt. In any event, the delay is not of a duration that would cause the evidence in some way to be stale, or will give rise to any other demonstrable prejudice to the Respondent.

The merits of the application

[41] Though I am aware of the underlying substantive claims none of the material which I have perused for the purposes of background in this jurisdictional matter has been subject to being tested by the ordinary examination process. The merits of the application are therefore of neutral significance for purposes of the exercise of conditioned discretion that is before me.

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

[42] In respect of this particular jurisdictional objection no issue arises as to the fairness between the Applicant and another person in a similar position. No such other person is identified for the purposes of comparison or otherwise in relation to this jurisdictional concern.

Conclusion

[43] Most of the matters to which I must take account (under.s394(3) of the Act) for the purposes of the exercise of my conditioned discretion under s.394(2)(b) of the Act bear neutrally on that discretion (though they have been taken into account nonetheless). The matter that does bear most directly upon my discretion is the reason for the delay in the making of the application.

[44] The Full Bench decision Clarke v Ringwood Private Hospital of 27 September 1997 considered the nature of representative error in the context of the authorities in various statutory provisions as they then were. Notwithstanding this, the Full Bench did point out that the:

Conduct of the Applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the Applicant left the matter in the hands of his/her representative and took no steps to enquire as to the status of his/her claim. The different situation exists where an Applicant gives clear instructions to hi/\her representative to lodge an application and the representative fails to carry out those instructions, through no fault of the Applicant and despite the Applicant efforts to ensure that the claim is lodged. 1

[45] The reasoning of the Full Bench remains salient for purposes of the exercise of the conditioned discretion at s.394(2)(b) of the Act in relation to the notion of representative error. Though I do add that not all discretionary decisions under the former legislation to allow applications in another period of time will invariably meet the requirements of s.394(2)(b) of the Act. This is because the discretionary test was not conditional under former legislation in the manner it is now.

[46] To return to the matter at hand: in the circumstances now before me, the Applicant despite his concerns about the commitment of his representative to his application nonetheless took steps to agitate his concerns over a period of time. The Applicant did not sit on his hands and leave the matter entirely to Mr Kelemen. He sought to contact him on multiple occasions.

[47] The Applicant placed his trust in Mr Kelemen, so is his evidence, to give effect to his application and to pursue his interests. But when that trust fell into question the Applicant used his best endeavours to ensure Mr Kelemen gave effect to the agreement into which they had entered (which, I add, required the Applicant to pay 30% of his gross settlement as negotiated or compensation as ordered to Mr Kelemen).

[48] Demonstrably, this is not a case where the Applicant idly sat on his hands or simply gave over his affairs to his paid agent and took no further interest in the matter.

[49] The Respondent makes a point with some force in relation to the Applicant as a consumer of representative services. Arguably, there was much the Applicant could have done to have investigated or inquired into the capabilities of Employee Assist before such time as he accepted its prima facie representations (for example, through its website or as asserted by Mr Kelemen). But equally, there are few websites (be they for law for law firms or otherwise) to my knowledge that demonstrate proven competencies or which provide testimonials, let alone set out successes and failures in relevant proceedings.

[50] I am aware that in some state jurisdictions there have been registers of paid agents. But these were and are no guarantees of quality of representation. Ultimately an applicant must, much as might a wary consumer, investigate the market segment and perhaps enquire of prospective representatives whether they have been exposed to any adverse comment or finding by any organisation, court or tribunal in any jurisdiction (or to otherwise attest to their competencies) before such time as they engage their services.

[51] In my view, there is enough in this case to demonstrate that the Applicant, on the basis of the evidence he has presented, was misled by his paid agent, Mr Kelemen of Employee Assist. I can only accept this evidence on its face as Mr Kelemen was not called to give evidence in these proceedings himself, and some care must be taken in respect of affording Mr Kelemen procedural fairness in relation to the claims made about his conduct.

[52] I do add, however, that the Applicant did tender material relevant to his phone records in relation to efforts to contact Mr Kelemen as well as Mr Kelmen’s text message reply to him confirming lodgement of the application (being a state of affairs which had not come to pass).

[53] Section 401 of the Act - as it has been amended by through the Fair Work Amendment Act 2012 (“the amending legislation”) - may have application in relation to paid agents who cause costs because of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter:

401 Costs orders against lawyers and paid agents

(1) This section applies if:

(a) an application for an unfair dismissal remedy has been made under section 394; and

(b) a person who is a party to the matter has engaged a lawyer or paid agent (the representative) to represent the person in the matter; and

(c) under section 596, the person is required to seek the FWC’s permission to be represented by the representative.

(1A) The FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because:

(a) the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or

(b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under this section only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611.

[54] The amending legislation has removed the prior caveat that the person must have been granted permission for a representative to appear under s.596 of the Act before such time as an application for costs can be made. Section 401 now requires only that the person is required to seek the FWC’s permission to be represented by the representative. The Explanatory Memorandum to the amending legislation explains the policy context for the amendment as follows:

180.     New subsections 401(1) and 401(1A) will provide a stronger deterrent for lawyers and paid agents from encouraging parties to bring or continue speculative unfair dismissal claims, particularly claims they know have no reasonable prospect of success. The provision will also deter lawyers or paid agents from unreasonably encouraging a party to defend a claim or make a jurisdictional argument where there is no prospect of the argument succeeding. It will act as a stronger deterrent than the current provision as it will make lawyers and paid agents subject to the possibility of adverse costs orders even if they are not granted, or do not seek, permission to represent the party in the matter before the FWC. [My emphasis]

[55] Notwithstanding these passing observations, the evidence is sufficient in my view to found a conclusion that there are exceptional circumstances accounting for the delay in filing this particular application, and that these circumstances apply to the totality of the period of the delay. The Applicant could always have done more to ensure his interests were adequately protected, but in the end he was misled (on his evidence). Equally, however, he took quite extensive steps to challenge his dismissal (through his interactions with his previous employer) and to seek to ensure that his representative executed his instructions. Upon the evidence that his application had not been effected in accord with his instructions becoming apparent, the Applicant acted promptly to identify a new representative and lodge an application.

[56] In these circumstances, I will allow the application in a further period that that stipulated at s.394(2)(a) of the Act, such that it is a valid application and can proceed to substantive hearing. The substantive hearing will be listed shortly (unless the parties indicate the matter is subject to settlement discussions).

SENIOR DEPUTY PRESIDENT

Appearances:

Mr G. Pinchen, for the Applicant

Mr P. Copeland, for the Respondent

Hearing details:

2013

5 April

Brisbane

 1 74 IR 1997 page 419-420.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR535441>