Mr Peter Evan John Morris v Crown Equipment Pty Ltd
[2010] FWA 2292
•19 MARCH 2010
[2010] FWA 2292 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment
Mr Peter Evan John Morris
v
Crown Equipment Pty Ltd
(U2009/10291)
COMMISSIONER CLOGHAN | PERTH, 19 MARCH 2010 |
Notice of Election lodged out of time.
[1] On 13 July 2009, Mr Peter Morris (“the Applicant”) sought relief in U2009/10291 with respect to his termination of employment, on the grounds that the termination was:
- harsh, unjust or unreasonable; and
- in contravention of s.659 of the Act; and
- in contravention of s.661 of the Act.
[2] On 19 January 2010, Commissioner Williams issued, pursuant to s.650 of the Workplace Relations Act 1996 (“the Act”), a Certificate in matter U2009/10291. The Certificate essentially states that conciliation was unsuccessful.
[3] Accompanying the Certificate is an “Important Note” which states as follows:
“The applicant has 7 days from the date of this certificate within which to lodge a Notice of Election (or 28 days if a contravention of s.659 is a ground in the application). The application for relief in respect of termination of employment will be taken to have been discontinued if the Notice of Election is not lodged within that period. In most cases the Commission is not permitted to extend the time for lodging the Notice of Election unless a contravention of s.659 is a ground in the application: see s.651(8).”
[4] On 16 February 2010, the Applicant forwarded to Commissioner Williams’ Chambers a long email which, for my purposes, the relevant part is:
“Sir/Madam
I have conflicting advice as to where this case is at the moment, I am also instructed that I only have today to notify you if I wish to procide (sic) with this case, and I do, be it to trial or a hearing.”
[5] On 17 February 2010, Commissioner Williams responded to the Applicant advising that if he wished to proceed with the application, he must lodge Form R33 detailing the options, advised of the relevant timelines and where to lodge the form. The Commissioner concluded by stating that he could not advise any further on the matter, and “you may wish to obtain legal advice”.
[6] On 25 February 2010, Commissioner Williams Associate took a telephone call from the Applicant who had spoken to a solicitor and was still confused. The Associate advised the Applicant to further discuss the matter with his solicitor.
[7] On 26 February 2010, the Applicant provided Fair Work Australia with a completed Form R33 and “Reasons for late application to lodge Notice of Election in the Industrial Registry”.
[8] On 10 March 2010, I forwarded to Mr Morris correspondence (with a copy to the Respondent). For the purpose of this Decision, the relevant parts of my correspondence are:
“The Notice of Election forwarded to you on 19 January 2010 required that you make an election not later than 28 days after the day of the issue of the certificate, that is, 16 February 2010. The election was received, as you know, on 26 February 2010.”
“The purpose of this correspondence is to invite you, should you wish, for the matter to be considered for arbitration in the commission, to provide any further information on why it would be unfair not to accept your Notice of Election dated 26 February 2010. In particular, I need you to address what are the essential elements of why you allege you were dismissed contrary to the provisions of s.659(2) of the Act.”
[9] The Applicant has not significantly added to his “Reasons for late application” and contends that it would be “unfair” not to accept his notice of election dated 26 February 2010.
[10] The Employer’s response, while direct, could have addressed the matter differently. The relevant parts of the response are as follows:
“We do understand the requirement for Fair Work Australia to give Mr Peter Morris an opportunity to provide further information as to why it would be unfair not to accept a late Notice of Election.
“However, we do believe that Commissioner Williams has already given Mr Peter Morris a fair hearing at the phone and face to face conciliation conferences. Any concessions to Mr Morris’s late Notice of Election would prolong the process and would be unfair on the Company.
“Mr Morris resigned from the services of the company over 8 months ago after multiple safety breaches endangering himself and other employees at our Perth branch. A prompt closure of this matter will enable Mr Morris to focus on gaining new employment instead of persisting with these vexatious claims.
“In view of the above, we strongly request Fair Work Australia not agree to accept the late Notice of Election and close the matter at the earliest.”
[11] It should be noted that Commissioner Williams, on 21 September 2009, issued a decision dismissing the Respondent Employer’s contention that Mr Morris’ application was frivolous, vexatious or lacking in substance.
[12] In determining whether an extension of time should be granted, I have applied the principles set down by the Industrial Relations Court in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300:
(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
(2) Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(3 Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
(4) The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(6) Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.
[13] Mr Morris had until 16 February 2010 to provide a Notice of Election to proceed to arbitration. Mr Morris states in relation to the delay:
- that he opened the email from Commissioner Williams on 19 January 2010 regarding the Certificate, and for particular reasons, set aside that part relating to the lodging of Form R33;
- that notwithstanding the Certificate, he thought his application was still alive, “and a decision pending”;
- that having heard “nothing”, emailed Commissioner Williams’ Chambers on 16 February 2010 (coincidentally the last day for lodgement of Notice of Election); and
- after receiving Commissioner Williams’ correspondence on 24 February 2010, consulted a solicitor, made further telephone contact with Commissioner Williams Chambers and subsequently lodged the Notice of Election with reasons for late application.
[14] I consider Mr Morris’ explanation, while he could have been more diligent, as reasonable for a person who appears to be unfamiliar with the processes and procedures of an industrial tribunal. It is unreasonable to apply rigidly the standards expected of an industrial relations/human resources practitioner, who would be expected to know better in such circumstances. In expressing this view, I am not giving the “green light” to any explanation for not meeting the statutory deadline. I am simply acknowledging the policy position of Parliament that it is better to fix a specific time in which something should be done, rather than use such timeframes as “reasonable”. However, having adopted this policy position, our parliamentary legislators understand, more than most, the weaknesses of human nature, and provided a “safety valve” for those cases which deserve consideration when specific time lines have not been met.
[15] In these particular circumstances, the Applicant, notwithstanding the Certificate, assumed the matter was still proceeding and was awaiting a decision. After a period of time, “he became concerned” and contacted Commissioner Williams. Further, he expressed the view by email, on the last day for filing the Notice of Election, that he wished to proceed with the “case”. All these actions, and those prior to the Certificate being issued, indicate to me that the Applicant has, at all times, sought to prosecute his claim for relief in respect to his termination of employment.
[16] Further, and importantly, when advised to seek legal advice on 24 February 2010 regarding the Notice of Election, he did so expeditiously and responded to the Registry on 26 February 2010.
[17] Finally, I need to address the issue of prejudice to the Employer by the delay. In this case, the delay is approximately 10 calendar days. I consider such a delay immaterial when taking into account the fact that the Applicant made application for a relief on 13 July 2009 and the filing of the Notice of Election was not due until 16 February 2010.
[18] In conclusion, having considered all the information submitted by the Applicant, the statutory provisions, the Respondent Employer’s position and the principles set out by the Industrial Relations Court when considering these matters, I consider it appropriate, pursuant to s.651(9) of the Act, to accept the Applicant’s election of 26 February 2010 as it would be unfair not to do so. Further, and consequently, the “deeming” provision in s.651(7) is not applicable to the application.
[19] While it should go without saying, I emphasise to both parties that this Decision has no relevance to the merits, or otherwise, of the Applicant’s claim for relief in respect to his termination of employment.
[20] I shall now proceed to arbitrate on the matters and, in the first instance, will hold a Directions Conference at a date and time on which the parties will be notified.
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