Mr Peter Bajada v Tronox Management Pty Ltd

[2017] FWC 1839

[2017] FWC 1839

FAIR WORK COMMISSION

DECISION

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

Mr Peter Bajada
v
Tronox Management Pty Ltd
(C2017/1118)

COMMISSIONER RYAN MELBOURNE, 3 APRIL 2017

Application to deal with contraventions involving dismissal - extension of time.

[1] The Applicant was dismissed from his employment on 3 May 2016. The dismissal most likely took effect on or about 8 – 10 May 2016 when the Applicant became aware of the dismissal letter and email which had been sent to him on 3 May 2016. The Applicant was not working at the time of the dismissal due to a back injury. The application in this matter was filed with the Commission on 1 March 2017, approximately 9 months past the 21 day time limit specified in s.366(1)(a). The Applicant seeks that the Commission, pursuant to s.366(1)(a) and s.3366(2), allows the application to be filed on 1 March 2017.

[2] The Applicant has represented himself in making the application in this matter and in pursuing an extension of time. The Respondent has been represented by MinterEllison which filed the Form F8A – Response to general protections application on 14 March 2017.

[3] The matter was listed for hearing before the Commission on 30 March 2017 to deal with the Applicant’s request for an extension of time in which to file an application and the Respondent’s objection to a grant of an extension of time. At the hearing on 30 March 2017 the Respondent sought to be represented by MinterEllison. MinterEllison contended, on behalf of the Respondent, that permission should be granted to the Respondent to be represented by a lawyer or paid agent on the basis of both s.596(2)(a) and (b). Having heard from MinterEllison the Commission determined not to grant the Respondent permission to be represented by a lawyer or paid agent. The matter before the Commission is relatively straightforward. The issues raised in this matter are not complex and the efficient conduct of the matter would not be enhanced by having the Respondent represented by a lawyer or paid agent. The Respondent is a large international firm. MinterEllison, on behalf of the Respondent, led no evidence to support the contention that it would be unfair not to allow the Respondent to be represented because the Respondent is unable to represent itself effectively. Nor did MinterEllison, on behalf of the Respondent address the issues raised in King v Patrick Projects P/L. 1

[4] The Applicant contends that when he became aware of his dismissal that he believed “that the only motive which could reasonably account for the actions of all those involved was because of the stance I took at the time concerning serious safety issues as the OHS Rep for my dept.” The Applicant sought advice from Worksafe in WA who referred him to the Western Australian Industrial Relations Commission (WAIRC). On contacting the WAIRC the Applicant was told that he could apply to have the matter heard before the Occupational Safety and Health Tribunal (OSHT).

[5] On 18 May 2016, approximately 10 days after becoming aware of his dismissal, the Applicant initiated a proceeding in the WAIRC sitting as the OSHT of WA. The notice of referral lodged by the Applicant identified that the matter referred was “Discrimination of OHS Representative OS&H act 1984 S35A/1/a”. The notice of referral listed 9 grounds in support as follows:

“The grounds on which the referral is made are:
I) Unfair Dismissal OS&H act 1984. S35A/2/a
2) Denied promotion through conflict of interest. Denied a position that I was recently offered. OS&H act 1984 S35A/2/b
3) Salary incorrectly decreased. Not paid for overtime. Not paid for sick leave OS&H act 1984 S35A/2/d
4) Detrimentally Altered/Changed Position/Shift OS&H act 1984 S35A/2/c
5) Restricted/inhibited work performance
6) Restricted/inhibited from performing duties as OHS representative duties
7) False accusations regarding my work performance and attitude
8) Falsely accused of mistakes made by other electricians (some intentionally made to set me up).
9) Ridiculed/Belittled”

[6] It appears from the Applicant’s material that between the time the Applicant filed his application in the WAIRC and the Easter period in 2016 that he suffered from severe depression and was involuntarily admitted into a mental health facility. The Applicant’s material does not identify the exact period of his involuntary admission into a mental health facility.

[7] The Applicant contends that he filed his application with the WAIRC without having access to legal advice. The Applicant contends that he first obtained some legal assistance on 21 February 2017 from the Employment Law Centre of WA. The Applicant describes that advice as being “very limited”. The Applicant in his Form F8 briefly describes the advice given as:

“On the 21/2/17 I met with a Solicitor at the Employment Law Center who told me that I have lodged my application with the wrong Department and that I should lodge a General Protections application with the FWC.”

The Applicant provides a more expansive description of this advice in material attached to his Form F8 as follows:

“The only advice that I was given was that even though I have a strong case which is well supported by material evidence, I would most likely fail because of the strict conditions set out for jurisdiction within the OSH Act WA 1984. The Solictor questioned why I decided to deal with the Matter through the OSHT WA and when I told him that this was the advice I was given at the time he told me the advice was wrong because I am a National System employee and the rules of the Industrial Relations Commission cannot be applied. I was told that unless I can relate every incident I have mentioned in my application directly to an event where I exercised my obligations as the OSH representative there is no Jurisdiction and my case would be dismissed. And even though the proof of the Adverse Actions is well beyond any reasonable Doubt they have no Jurisdiction because I am a National System Employee”

[8] Given that the application in the present matter was filed with the Commission on 1 March 2017 the Applicant does not appear to have been dilatory in following the advice of the Employment Law Centre solicitor.

[9] As at 1 March 2017 the Applicant had two matters running, his application before the WAIRC sitting as the OSHT and his general protections application before this Commission.

[10] On 10 March 2017 the Applicant contacted the FWC by telephone a spoke to a staff member. The file not of that telephone conversation is as follows:

“T/C from A re concurrent applications with two jurisdictions. A explained the situation and advised he does not know what to do. I confirmed if A's application with OHS commission deals with substantially the same dispute then there may be issues with FWC taking jurisdiction of this application. A inquired which application he should discontinue? I confirmed I could not advise. A inquired about our process? I explained the more informal, conciliatory nature of the conference we will carry this matter towards. A confirmed he would prefer this to the OHS commission's process, A advised he would look into discontinuing his application with OHS. A gave thanks for listening and explaining things in a logical manner”

[11] The Applicant’s application before the WAIRC sitting as the OSHT was listed for hearing on 14 and 15 March 2017 and the Applicant advised the WAIRC late in the afternoon of 13 March 2017 that he wished to discontinue the application before the WAIRC. The WAIRC issued an order on 14 March 2017 discontinuing the application by leave of the WAIRC.

[12] Any consideration of an application for an extension of time must have regard to the requirements of s.366(2) which is as follows:

“(2) The FWC may allow a further period if the FWC 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.

[13] It is appropriate to observe that s.366(2) sets out an exhaustive list of the matters that must be taken into account. The language of s.366(2) (and its unfair dismissal counterpart, s.394(3)) does not require or even permit the Commission to take into account “any other matters that the FWC considers relevant” which is a requirement in both s.387(h) and s.392(2)(g), nor does the language of s.366(2) (and its unfair dismissal counterpart, s.394(3)) require or even permit the Commission to “take into account all the circumstances of the case” which is a requirement in s.392(2).

[14] In the present matter s.366(2)(e) is not a relevant criteria as there are no other persons in a like position to the Applicant. However each of the other criteria in s.366(2) are relevant and must be taken into account. It is important to note that the criteria which must be taken into are for the sole purpose of determining whether exceptional circumstances are present which would then permit the Commission to exercise a discretion to grant an extension of time. I approach the term “exceptional circumstances” having regard to the decision in Nulty v Blue Star Group. 2

Reason for the delay

[15] Whilst the Applicant identifies that he sought legal advice from the Employment Law Centre in February 2017 the Applicant provides no indication as to what triggered him to approach the Employment Law Centre in February 2017. There is no plausible reason why the Applicant could not have sought legal advice at an earlier time. Even accepting the Applicant’s contention that he made his application to the WAIRC in circumstances where he was unaware of the practices and processes of the OSHT and that there was little information publicly available about the OSHT, this is insufficient to explain why the Applicant only sought legal advice in February 2017. The Applicant does not point to any reason why he was unable to seek legal advice at any time earlier than 21 February 2017.

[16] It is clear that the Applicant specifically sought legal advice in relation to the conduct of his case before the WAIRC sitting as the OSHT and that the advice given was that it would be difficult for him to succeed in that jurisdiction. It is also clear from the Applicant’s case that it was the solicitor at the Employment Law Centre who raised the possibility of lodging a general protections application. Whilst the solicitor from the Employment law Centre may have been correct in giving advice as to the difficulty of succeeding before the WAIRC sitting as the OSHT (although this proposition is clearly hearsay and untested) it is clear that the Occupational Safety and Health Act (WA) provides for a similar process and similar remedies in relation to dismissal of a health and safety representative for a reason prohibited by that Act. The scheme of s.35A, 35C and 35D of the Occupational Safety and Health Act (WA) make this clear. The late filing of the application in this matter would appear on its face to be a case of forum shopping rather than moving from a jurisdiction which could not deal with the matter to a jurisdiction that could deal with the matter. Ordinarily, actions of a party after the filing of a general protections application in this Commission would not be useful or helpful in determining whether exceptional circumstances existed in relation to the late filing of the application. However, in the present matter the conversation initiated by the Applicant with the staff of the Commission on 10 March 2017 supports the prima facie position that the Applicant may have been forum shopping in filing his general protections application in this Commission.

[17] There is little in the reasons advanced by the Applicant which would support a finding that exceptional circumstances existed in the present matter.

Any action taken by the person to dispute the dismissal

[18] It is not in dispute that the Applicant acted within 21 days of his dismissal to dispute the grounds for his dismissal and to seek a remedy in relation to his dismissal. The Applicant’s application under the Occupational Safety and Health Act (WA) makes this clear. This criteria supports the Applicant’s case as to the existence of exceptional circumstances.

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

[19] The Respondent contends that it will suffer prejudice if the Applicant is permitted to proceed with the application in this matter. In its written submissions the Respondent’s case on this criteria was put as follows:

“2. The respondent will be required to spend significant resources, both in terms of legal costs and time to be spent by its employees in defending this application in circumstances where a significant amount of time has elapsed since the dismissal took effect.

3. Given the time that has elapsed, it will be difficult for the witnesses, to be called by the respondent to recall the events of the employment and the dismissal, some of whom have ceased being employed by the respondent. The respondent would likely suffer considerable prejudice as a result.

4. Defending this application, which was brought almost 10 months out of time, would be a significant distraction for the respondent from its core business and operational activities. The effect of any extension of time would be a lack of finality in respect of the dismissal which is what the 21 day time limit is designed to achieve.

5. The respondent has already expended significant resources in terms of legal costs and time spent by its employees in defending the OSHT Application.”

[20] In both his written and oral submissions the Applicant contends that because the Respondent had prepared for the hearing on 14 and 15 March 2017 before the WAIRC sitting as the OSHT including having witnesses ready then little additional prejudice would follow if proceedings were moved into the jurisdiction of the Fair Work Act. In the present matter where both the Respondent and the Applicant have addressed this criteria soley through submissions and where the Respondent has led no evidence in relation to this criteria the Commission considers that this criteria has neutral value in the consideration as to the existence of exceptional circumstances.

The merits of the application

[21] The most that can be said of the merits of the case in the present matter is that the Applicant has an arguable case and the Respondent has an arguable defence to that case. Both the Applicant and the Respondent addressed the merits of the case in their submissions but the Commission did not embark on a detailed consideration of the merits of the case and no evidence was led before the Commission by either the Applicant or the Respondent. In the present matter this this criteria has neutral value in the consideration as to the existence of exceptional circumstances.

Exceptional Circumstances not present

[22] Taking into account each of the relevant criteria in s.366(2) the Commission determines that there are no exceptional circumstances in the present matter which could enliven the discretion of the Commission in relation to granting an extension of time to the Applicant. The prompt pursuit of action to challenge his dismissal favours the Applicant as does the prompt action by the Applicant once advised that he should make an application to this Commission. However, the very long delay in the Applicant making a decision to make an application to this Commission, and which remains largely unexplained, weighs very heavily against the Applicant. The balance is very strongly against the existence of exceptional circumstances.

[23] As the application in this matter was not filed within the time specified by s.366(1)(a) the application is outside the jurisdiction of the Commission and the application is dismissed.

COMMISSIONER

 1   [2015] FWCFB 2679 at [18] and [19].

 2   [2011] FWAFB 975.

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