Mr Robert Barton v Qantas Airways Limited
[2023] FWC 970
•24 APRIL 2023
| [2023] FWC 970 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Robert Barton
v
Qantas Airways Limited
(U2023/1415)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 24 APRIL 2023 |
Application for an unfair dismissal remedy – application made outside of the time prescribed – whether there are exceptional circumstances – whether discretion to extend should be exercised – extension of time granted
Mr Robert Barton was dismissed by Qantas Airways Limited (Qantas) with effect on 16 December 2022. Mr Barton contends that his dismissal was unfair. The Australian Workers’ Union (AWU), on Mr Barton’s behalf lodged an unfair dismissal remedy application under s 394 of the Fair Work Act 2009 (Act) on 23 February 2023.
The time within which an application for an unfair dismissal remedy could be made, in Mr Barton’s case, elapsed at the end of 6 January 2023. Mr Barton’s application was lodged 48 days beyond the time prescribed.
The factual chronology which follows is not seriously in contest. Mr Barton commenced employment with Qantas on 17 December 1975. By letter dated 16 December 2022 and given to Mr Barton during a meeting on that day, Qantas notified Mr Barton that his employment was terminated for serious misconduct with immediate effect and that he would be paid 5 weeks wages instead of notice.[1] Mr Barton was employed as an aircraft maintenance engineer at the time of his dismissal.
Qantas maintains an Internal Appeal Procedure which allows a review of the process and decision relating to the termination of an employee’s employment. Mr Barton was informed of his right to appeal during the meeting on 16 December 2022.[2] The letter of termination also alerted Mr Barton to the procedure, how to initiate such an appeal and attached a copy of the procedure.[3] The procedure makes clear that while an appeal is being determined the decision or process against which the appeal is brought is not suspended and continues in force.[4] An appeal must be in writing setting out the appeal grounds and it must be received by the nominated person within 7 calendar days of an employee receiving notice of the decision. Employment termination appeals will, whenever possible, be determined within 10 calendar days of the receipt of the appeal.[5]
Mr Ross Kenna is an AWU organiser and he attended the meeting on 16 December 2022 with Mr Barton as his representative.[6] Immediately after the meeting on 16 December 2022, Mr Barton told Mr Kenna that he wanted Mr Kenna to do “whatever it took” to get his job back, “including making an unfair dismissal application”.[7] Mr Kenna corroborated Mr Barton’s evidence.[8] Mr Kenna also told Mr Barton that an unfair dismissal application could be lodged after the appeal outcome.[9]
On 22 December 2022, Qantas deposited Mr Barton’s final termination pay (five weeks’ pay in lieu of notice) to Mr Barton’s nominated bank account and posted key termination documentation to Mr Barton’s nominated postal address, including a letter from Qantas Payroll enclosing a ‘Final Payment Advice’, a Statement of Service, and a Centrelink Employment Separation Certificate.[10] These all specified 16 December 2022 as the date the dismissal took effect (or as the date the employment ceased or ended).
On 22 December 2022, Mr Kenna sent an email to Qantas attaching a letter from Mr Barton dated 20 December 2022 submitting an appeal under the procedure against the decision to terminate his employment.[11]
By email to Mr Kenna on 4 January 2023, Qantas confirmed receipt of the appeal and advised Mr Kenna that it would not be possible to provide an outcome to the appeal in the 10 days specified in the procedure but that the appeal would be determined as soon as possible in the new year.[12]
On 18 January 2023, Mr Kenna inquired with Qantas about the status of the appeal and on 19 January 2023 Qantas advised Mr Kenna that it anticipated reaching an outcome by the end of the following week.[13]
On 20 January 2023, Mr Kenna sent a further email to Qantas requesting an update on the determination of the appeal.[14]
On 9 February 2023, Qantas sent an email to Mr Barton (copying in Mr Kenna) attaching a letter maintaining its decision to terminate Mr Barton’s employment for serious misconduct and dismissing the appeal.[15] That same day Mr Kenna sent an email to Qantas (copying in Mr Barton and Mr Simon Miller, another AWU official) asserting that if Mr Barton decided to pursue an unfair dismissal case, Mr Kenna would treat the date of termination as 9 February 2023 because of the delay in determining the appeal, which “exceeded the FairWork timeframe for unfair dismissal”.[16]
On or around 9 February 2023 Mr Kenna advised Mr Barton that the AWU would lodge an unfair dismissal remedy application with the Commission.[17] Mr Barton had told Mr Kenna on numerous occasions since 16 December 2022, including on or about 9 February 2023 in conversations with Mr Kenna, to do all they could to get his job back, including making an application for an unfair dismissal remedy at the Commission irrespective of the outcome of any appeal. [18] Once Mr Kenna received notice of the outcome of the appeal he sought advice from the AWU’s industrial department about preparing an unfair dismissal remedy application for Mr Barton, believing that, consistent with the email he sent to Qantas on 9 February 2023, the timeframe for lodging the application would run from the date on which the appeal was determined.[19]
A few days after 9 February 2023, Mr Kenna became aware that his assertion that lodgement time would run from 9 February 2023 was wrong,[20] and he spoke to Mr Barton about the mistake and said words to the effect: “Look, there may be an issue. I need to talk to our legal team because I'm not 100 per cent sure what we do from here”.[21] Mr Kenna said that thereafter there was some discussion (between he and other AWU officials) about whether “we'd have the ability to lodge, whether there was a way we could appeal to the Commission to have an extension of time, and that was being investigated by the industrial officers”.[22] He said that he put his faith into other officials and did not do anything more himself.[23]
On 14 February 2023 Qantas wrote to Mr Kenna and Mr Barton confirming that the date the dismissal took effect was 16 December 2022 and that the invocation of an appeal under the procedure did not alter the date.[24]
On 15 February 2023 Mr Kenna responded stating that “[i]f [Mr Barton] chooses to enforce his legal right to apply to the Fair Work Commission for conciliation for Unfair Dismissal, The AWU will do so on the basis that the Qantas Group have caused a delay.”[25]
As earlier noted, the AWU filed Mr Barton’s application with the Commission on 22 February 2023 at 3.40 pm (AEST). The Form F2 filed identified that the application was not filed within 21 calendar days of the dismissal taking effect and explained the reasons for the late filing as “representative error” and noted that Mr Barton “disputed the dismissal by following [Qantas’] Internal Appeal Procedure”.
The Commission may allow a further period within which an unfair dismissal remedy application may be lodged but the power is only exercisable if the Commission is first satisfied that there are exceptional circumstances, taking into account the various matters that are set out in s 394(3). The expression “exceptional circumstances” is not defined in the Act, but it is well established that the expression describes circumstances that are out of the ordinary or unusual or special or uncommon. Circumstances need not be unique, or unprecedented, or even very rare. Exceptional circumstances might amount to a single event which is exceptional, or a combination of factors which, individually, are unexceptional but which, when combined or viewed together, persuade the Commission that the circumstances are exceptional.
In assessing whether there are exceptional circumstances the following matters must be considered: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer (including prejudice caused by the delay); the merits of the application; and fairness as between the person and other persons in a similar position. Each matter needs to be considered, assessed, and assigned appropriate weight having regard to the evidence about each matter.
Mr Barton contends representative errors made by his representative the AWU explain the reason for the delay. Mr Barton says he was blameless in that he made clear to his representative his intention to contest his dismissal, he gave instructions to the AWU (through Mr Kenna) to make an unfair dismissal remedy application and he followed the procedure to appeal thus disputing the dismissal. Mr Barton challenges the reasons for dismissal and says he did not engage in some of the conduct alleged, and other conduct in which he was found to have engaged did not warrant dismissal. He also contends that he was refused permission to have a support person throughout the investigation. Taking these matters into account and the fact that he has a long period of service, Mr Barton contends that he has strong prospects of succeeding on the merits of his application.
Qantas says that Mr Barton was not blameless in the representative error. It says that Mr Barton contributed to the delay because he did nothing to facilitate the early lodgement of the application once it was clear that the dismissal date was not altered by engaging with Qantas’ appeal process. Qantas also contends that the extreme and repeated representative error should not be accepted as explaining the delay because the AWU had access to the procedure which confirmed the date of dismissal was unaffected and further, because by 22 December 2022 when Mr Barton received his final payment advice and statement of service, the fact that the date of dismissal was unaltered ought to have been clear since it is specified in both documents. Qantas contends that in light of the very clear and repeated communication to Mr Barton about the termination of his employment and its date of effect, coupled with the clear wording of clause 2.2 (and clause 5.3(e)) of the procedure, any understanding that the termination was ‘dependent’ on the outcome of the appeal was entirely unreasonable and cannot be maintained.
The Act does not specify what reason or reasons for delay might favour the granting of an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all the circumstances must be considered. The period of the delay with which the explanation is concerned is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect may be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation and may inform the weight that is attached to the reason for the delay.
In short, Mr Barton says that the reason for the delay is representative error. The error is obvious in the recitation of the factual background above. Qantas appears to accept there was representative error but says that Mr Barton was not blameless and that he contributed to the delay. It says that Mr Barton should have been diligent in confirming the status and progress of his application, and that he should have reviewed the procedure, noting the clear wording of clause 2.2 and should have filed or instructed the AWU to file an unfair dismissal remedy application within the statutory time limit. It says similarly, that upon receiving his final termination payment and related paperwork, which clearly indicated that his dismissal had come into effect, Mr Barton ought to have made inquiries with the AWU and taken steps to file, or to instruct the AWU to file, an application prior to 6 January 2023. Qantas also points to its email of 14 February 2023, after which there could be no doubt as to the dismissal date, and says that Mr Barton should immediately have filed, or instructed the AWU to file, an application. Instead, there was a further eight days of delay.
In assessing an explanation of representative error as explaining the delay, the whole of the circumstances in which the representative error was made need to be examined. This includes an examination of the extent to which an applicant might be said to be “blameless” and whether by any act or omission an applicant contributed to or caused the error or the delay or any part of it. An applicant’s conduct may be an important consideration in deciding whether representative error provides an acceptable explanation for the delay in filing an unfair dismissal application.[26] But, as Deputy President Saunders correctly observed, in Walton v DS Opco Pty Ltd:[27]
“It is not necessary for an applicant to demonstrate that they were “blameless” for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion. However, as the Full Bench explained in Long v Keolis Downer, “an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by”.[28] (Endnotes omitted)
I accept there was representative error and that the error explains the delay. Mr Barton is a member of the AWU and sought representation in connection with the investigation into his conduct and ultimately his dismissal. Mr Barton’s instructions to Mr Kenna were clear. On the day of his dismissal, Mr Barton told Mr Kenna that he wanted to challenge his dismissal and he instructed Mr Kenna to, inter alia, lodge an application with the Commission. Mr Kenna told Mr Barton that an unfair dismissal application could be lodged after the appeal outcome. This advice was not plainly wrong when given, because the timeframes within the procedure for a decision would still have allowed an unfair dismissal remedy to be made in time. But when on 4 January 2023, Qantas advised Mr Kenna that it would not be possible to provide an outcome to the appeal in the 10 days specified in the procedure, it ought to have been clear to Mr Kenna that awaiting the appeal outcome, would or would likely mean that the time for lodgement of an unfair dismissal remedy application would pass before the appeal outcome was known.
Mr Barton had instructed Mr Kenna to lodge an application, and he had no reason to believe that Mr Kenna would not do so or that his advice, that such an application could be lodged after the appeal outcome, was or would be incorrect. It is not to the point that Mr Barton knew or ought reasonably to have known that his dismissal took effect on 16 December 2022, or that the date of dismissal was unaffected by his appeal against the decision to dismiss made under the procedure. Mr Barton gave instructions to Mr Kenna to lodge an application with the Commission, and he relied on Mr Kenna’s advice as to the timing of that application. Similarly, on or about 9 February 2023, after the appeal outcome was communicated to Mr Barton, he told Mr Kenna that he wanted to “go to Fair Work to get [his] job back”[29] and Mr Kenna advised Mr Barton that he (Mr Kenna) was going to lodge an application with the Commission.[30] In short, Mr Barton relied on the advice given to him by Mr Kenna,[31] but his instructions to Mr Kenna were clear – that he wanted to pursue an unfair dismissal application. This had been communicated to Mr Kenna by Mr Barton on numerous occasions.[32] And Mr Kenna assured Mr Barton that this would be done.
Once it became clear that Mr Kenna’s advice to Mr Barton was erroneous, Mr Kenna asked members of the AWU’s industrial staff for advice.[33] Mr Kenna was embarrassed that he made a mistake and “that Mr Barton may not be able to appeal for an unfair dismissal based on something that [Mr Kenna had] done”.[34] Mr Kenna had several conversations with AWU industrial officers “to try to rectify this and put forward what [he] hoped would happen”.[35] An application was not lodged until 22 February 2022 which was more than a week after these discussions.[36] It appears the AWU was considering whether to lodge an application and apply for an extension of time. This was also an error. The more prudent course would have been to lodge the application immediately once Mr Kenna had explained the circumstances to the AWU’s industrial staff. This would have stopped the clock running, but Mr Barton was not to know any of this. He had instructed Mr Kenna to lodge the application and was told it would be done. In this period, he had no reason to suppose otherwise. This period of delay is not so lengthy as to justify a conclusion that Mr Barton had simply sat on his hands for an extended period and made no inquiry about his application. Only a few days earlier he had given clear instructions and was told the instructions would be carried out.
Considering the whole of the circumstances, I do not consider Mr Barton to have contributed to the delay and I accept that the whole of the delay is explicable by the errors made by the AWU, Mr Barton’s representatives, described above. This consideration therefore weighs in Mr Barton’s favour.
There is no dispute that Mr Barton became aware of the dismissal on the day that it took effect. Normally, that an applicant did not become aware of the dismissal after it took effect means the applicant had the benefit of the full 21-day period within which to lodge the application, and so might be a factor that weighs against a conclusion that there are exceptional circumstances. However, that Mr Barton had the full period within which to lodge his application needs to be assessed in the context of the representative errors made – particularly the erroneous advice given by Mr Kenna. In effect Mr Barton was deprived of any benefit the full 21-day period might otherwise provide because the AWU so patently failed him. Accordingly, in these circumstances this consideration weighs neutrally.
If an applicant disputes a dismissal with her or his employer or brings the dispute to the employer’s attention, the employer is on notice that there is a controversy about the dismissal, so that in such circumstances this fact might weigh in an applicant’s favour. Conversely the failure to dispute the dismissal and to bring that dispute to the employer’s attention might weigh the other way. Mr Barton plainly took steps to contest his dismissal. He lodged an appeal pursuant to the procedure very promptly after his dismissal took effect. In the circumstances, particularly Mr Kenna’s erroneous advice, this consideration weighs in Mr Barton’s favour.
Qantas does not assert that it will suffer any prejudice generally, or because of any extension of time. This is quite proper. The delay period was short in a numeric sense (although not so short relative to the period within which an application must be lodged), and it would be surprising if an organisation as the size of Qantas with all of its resources would suffer any prejudice because of a delay of 48 days. But the absence of prejudice is not in and of itself an exceptional circumstance, nor does the period of delay justify such a conclusion. In the instant case I consider that this matter weighs neutrally.
Qantas contends that Mr Barton’s application is without merit. It is not the function of the Commission in extension of time proceedings to determine, fully, the merits of the application. It is all the more difficult to do so where, as here there was no evidentiary testing of the parties’ respective positions. Nevertheless, some assessment must be made. I do not consider that a conclusion that Mr Barton’s application is completely lacking in merit is open. He contests some of the findings made by the investigation undertaken by Qantas and he says he was not permitted to have a support person during the investigation. All that may be said for present purposes is that if Qantas is able to establish by admissible evidence that Mr Barton engaged in the conduct alleged, this may amount to a valid reason for dismissal, but if it cannot, then the absence of a valid reason will be a significant factor in assessing whether the dismissal was unfair. Therefore, there is much to explore. But as I am unable to do more than to note the obvious, this consideration weighs neutrally.
I accept Qantas’ contention that the fairness consideration in s 394(3)(f) of the Act weighs neutrally.
In the circumstances described above the reason for the delay in my assessment weighs heavily in Mr Barton’s favour. Mr Barton expressed a clear intention to Mr Kenna to contest the dismissal, including instructing Mr Kenna, on more than one occasion, to lodge an unfair dismissal application. Mr Barton had a reasonable expectation that the necessary steps to file the unfair dismissal application within any specified timeframe would be taken by Mr Kenna and he had no reason to suppose that Mr Kenna’s advice of erroneous. Nor did Mr Barton have reason to believe there was a further delay caused by the inaction of the industrial officers with whom Mr Kenna consulted after learning that his advice to Mr Barton was wrong.
It must be said for a well-resourced and frequent participant in Commission proceedings, the representative errors here made by the AWU are particularly egregious. It should take immediate steps to ensure that its officials are properly trained, instructed, and equipped to provide a professional level of representation to members of the organisation.
As I have indicated, the application cannot be assessed as lacking merit. None of the other considerations weigh against Mr Barton – they weigh in favour or are neutral. Taken together, I am satisfied that there are exceptional circumstances in the instant case. I also consider that my discretion should be exercised in Mr Barton’s favour because it is in the interests of justice to do so and there are no discretionary considerations identified which would tend the other way. Accordingly, I will allow Mr Barton a further period within which to make his unfair dismissal remedy application. Directions for the preparation and hearing of the application will separately issue.
Order
I order that:
1. Mr Barton’s application to be allowed a further period to make an application for an unfair dismissal remedy is granted;
2. Pursuant to s 393(3) of the Fair Work Act 2009 Mr Barton may make an application for an unfair dismissal remedy by 22 February 2023.
DEPUTY PRESIDENT
Appearances:
S Miller for the Appellant
R Jones for the Respondent
Hearing details:
14 April 2023
Melbourne
Final written submissions:
Applicant, 13 April 2023
Respondent, 5 April 2023
[1] Exhibit 2 at [19]; Annexure RK-2
[2] Exhibit 2 at [20]
[3] Exhibit 2, Annexures RK-2, RK-3
[4] Exhibit 2, Annexure RK-3 at cl 2.2
[5] Exhibit 2, Annexure RK-3 at cls 4.1(b), (e)(i)
[6] Exhibit 2 at [18]
[7] Exhibit 1 at [29]
[8] Exhibit 2 at [26]
[9] Exhibit 2 at [27]
[10] Exhibit 3 at [21], attachment CH-14
[11] Exhibit 2 at [29], Annexure RK-4.
[12] Exhibit 2 at [30], Annexure RK-5
[13] Exhibit 2 at [31] – [32], Annexure RK-6
[14] Exhibit 2 at [33]
[15] Exhibit 2 at [34], Annexure RK-7
[16] Exhibit 2 at [35], Annexure RK-8
[17] Exhibit 1 at [34]
[18] Ibid at [29]-[30]
[19] Exhibit 2 at [36]
[20] Transcript PN257
[21] Transcript PN251
[22] Transcript PN259
[23] Ibid
[24] Exhibit 3 at [24], attachment CH-18
[25] Ibid
[26] See Clark v Ringwood Private Hospital (1997) 74 IR 413 at 418-9
[27] [2020] FWC 3031
[28] Ibid at [12]
[29] Transcript PN158
[30] Transcript PN160-PN161
[31] Transcript PN190; PN255
[32] Transcript PN218
[33] Transcript PN256
[34] Transcript PN257
[35] Ibid
[36] Transcript PN259
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