Mr Robert Lim v Downer EDI Mining

[2009] FWA 457

[2009] FWA 457

FAIR WORK AUSTRALIA

DECISION

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

Mr Robert Lim
v
Downer EDI Mining
(U2009/10560)

COMMISSIONER WILLIAMS PERTH, 2 OCTOBER 2009

Termination of employment.

[1] Mr Robert Lim, the applicant in this case has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Downer EDI Mining.

[2] The respondent objects to the application on the grounds that the applicant is not protected from unfair dismissal under section 382 of the Act and that the application is lodged out of time and so does not comply with section 394 (2) of the Act.

The jurisdictional objection

[3] The relevant section of the Act is s.382.

s. 382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: high income threshold indexed to $108,300 from 1 July 2009

[4] The respondent says the applicant is not covered by a modern award and that no enterprise agreement applies to the applicant and that the sum of the applicant's annual rate of earnings is greater than the specified high income threshold in the Fair Work Regulations 2009.

[5] I have written to the applicant and asked the applicant to provide information in response to this and they have.

[6] I have considered the position of both parties on this matter and the information they have provided.

[7] The respondent says that the applicant was employed pursuant to an Australian Workplace Agreement (AWA) that had been made under the previous legislation the Workplace Relations Act 1996.

[8] The applicant's representatives accept that that is the case.

[9] The applicant's representatives argue that by virtue of Part 2, items 2 (2) and 2 (3), of the Fair Work (Transitional Provisions and Consequential Amendment) Act 2009 (the Transitional Act) an AWA is a “transitional instrument”.

[10] Further, the applicant’s representatives submit that under section 32 of the Transitional Act an employee is not 'award/agreement free' for the purposes of the Act if a transitional instrument applies to the employee, which is the case here. It is therefore submitted that the applicant is not as the respondent claims agreement free and is therefore entitled to press his claim for unfair dismissal.

[11] Whilst the applicant's representatives position is correct, having reviewed the Transitional Act there are other transitional provisions that more directly deal with this issue as follows.

[12] The Transitional Act includes Schedule 3, Part 5 Transitional Instruments and FW Act, Division 3 – Other general provisions about how the FW Act applies in relation to transitional instruments, of which item 36 particularly deals with s. 382 of the Act and is as follows:

36 Application of unfair dismissal provisions

Part 3-2 of the FW Act (which deals with unfair dismissal) applies, on and after the WR Act repeal day, as if:

(a) the reference in subparagraph 382(b)(i) and paragraph 389(1)(b) of that Act to a modern award included a reference to an award-based transitional instrument; and

(b) the reference in subparagraph 382(b)(ii) and paragraph 389(1)(b) of that Act to an enterprise agreement included a reference to an agreement-based transitional instrument.

(Emphasis added)

[13] To determine what is an agreement-based transitional instrument it is necessary to consider the following sections in Schedule 3 of the Transitional Act:

Part 2—Continued existence of WR Act instruments as transitional instruments

2 WR Act instruments that continue in existence as transitional instruments

(1) Each WR Act instrument (see subitem (2)) that becomes a transitional instrument (see subitems (3) and (4)) continues in existence in accordance with this Schedule from when it becomes a transitional instrument, despite the WR Act repeal.

Note: In addition to provisions of this Schedule, the following other provisions affect the continued existence of transitional instruments:

(a) Part 2 of Schedule 5 (which deals with the WR Act award modernisation process);

(b) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process);

(c) Schedule 8 (which deals with workplace agreements and workplace determinations made under the WR Act, including the making of ITEAs during the bridging period);

(d) Schedule 11 (which deals with transfer of business);

(e) Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

(2) Each of the following instruments is a WR Act instrument:

(a) an award;

(b) a notional agreement preserving State awards;

(c) a workplace agreement;

(d) a workplace determination;

(e) a preserved State agreement;

(f) an AWA;

(g) a pre-reform certified agreement;

(h) a pre-reform AWA;

(i) an old IR agreement;

(j) a section 170MX award.

Note 1: Workplace agreements are either collective agreements or ITEAs.

Note 2: Preserved State agreements are either preserved collective State agreements or preserved individual State agreements.

Note 3: For transitional provisions relating to Division 2 of Part 7 of the WR Act (which deals with wages), see Schedule 9.

Note 4: For transitional provisions relating to Schedule 6 to the WR Act (which deals with transitional awards etc.), see Schedule 20.

(3) The following WR Act instruments become transitional instruments on the WR Act repeal day:

(a) each WR Act instrument that was in operation immediately before the WR Act repeal day;

(b) each workplace agreement or workplace determination made before the WR Act repeal day but that had not yet come into operation by that day;

(c) any other WR Act instrument that, although not in operation immediately before the WR Act repeal day, could come into operation after that day because of an instrument interaction rule.

(4) If an ITEA is made during the bridging period under Division 7 of Part 2 of Schedule 8, the ITEA becomes a transitional instrument when it is made.

(5) Transitional instruments are classified as follows:

(a) awards, and notional agreements preserving State awards, are award-based transitional instruments;

(b) all other kinds of transitional instruments are agreement-based transitional instruments;

(c) agreement-based transitional instruments of the following kinds are collective agreement-based transitional instruments:

(i) collective agreements;

(ii) workplace determinations;

(iii) preserved collective State agreements;

(iv) pre-reform certified agreements;

(v) old IR agreements;

(vi) section 170MX awards;

(d) agreement-based transitional instruments of the following kinds are individual agreement-based transitional instruments:

(i) ITEAs;

(ii) preserved individual State agreements;

(iii) AWAs;

(iv) pre-reform AWAs.

[14] In summary, these provisions provide that a pre reform AWA and an AWA are both a “WR Act instrument”, which in each case if operating becomes a “transitional instrument” and is classified as an “agreement based transitional instrument” .

[15] The effect of item 36 of Schedule 3—Continued existence of awards, workplace agreements and certain other WR Act instruments, of the Transitional Act, is that 382(b)(ii) is taken to include a reference to an agreement based transitional instrument. In this case the applicant had completed the minimum employment period and was employed subject to an AWA which is an agreement based transitional instrument. Consequently applying s. 382 the applicant is protected from unfair dismissal.

[16] Accordingly, the respondent’s jurisdictional objection is dismissed.

The out of time objection

[17] The applicant was terminated on 5 July 2009 and advised of the termination that day. The application was lodged on 21 July 2009, 16 days after the dismissal took effect.

[18] s. 394(2) and (3) as below are relevant.

s. 394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

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

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) 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.

[19] The application has been lodged more than 14 days after the dismissal and cannot proceed unless a further period is allowed under s. 394(2)(b).

[20] In support of the application for an extension of time the applicant’s representative submits as follows.

[21] The applicant is from the Philippines engaged on a 457 Visa and was unaware of his rights to make this application until he sought assistance from the Philippines Consulate on 20 July 2009.

[22] The applicant is not a union member and has not previously worked anywhere where he would have had access to remedies for unfair dismissal.

[23] He did not seek legal representation until after he had lodged this application.

[24] After dismissal he had discussions with the respondent's managers over a period of two days to plead his case for re-employment.

[25] The applicant will suffer prejudice compared with other employees in a similar position of greater magnitude because if he cannot press his application he will be deported.

[26] The merit of the application is strong in that the applicant was dismissed for an incident to do with the tag out procedure for which it is said that he was not responsible.

Are there are exceptional circumstances?

[27] Section 394 (3) allows Fair Work Australia to allow a further period for an application such as this to be made by a person only if Fair Work Australia is satisfied that there are exceptional circumstances. The factors to be taken into account are set out in the Act and consideration of them is set out below.

The reason for the delay

[28] The explanation given by the applicant for the delay is an effect that he was unaware of his rights and made this application only after he became aware of his rights the day before the application was lodged.

[29] This is not an unusual situation regardless of an applicant’s place of birth. Many applicants are unaware of their rights or become aware of them only after the statutory time period for lodging applications has passed. In many previous decisions of the former Australian Industrial Relations Commission it has been held that an applicant being ignorant of his legal rights is not an acceptable explanation for a late application having been made, and so it is in this case.

[30] Similarly the fact that the applicant did not seek legal representation nor was a member of a trade union and had not previously worked anywhere where such similar remedies exist do not in my view provide an acceptable explanation for the delayed lodgement. These circumstances are far from unusual.

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

[31] The application indicates that the applicant was made aware of his termination on the day it took effect.

Any action taken by the person to dispute the dismissal

[32] Apparently the applicant contested the dismissal in discussions with the respondent after it took effect but no other actions were taken.

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

[33] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[34] Having reviewed the explanations of both parties regarding the circumstances leading up to the termination it is clear that the merits of the case will only become apparent after a full hearing of the matter and consequently this factor is neutral in deciding whether a further period to apply should be allowed.

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

[35] There is nothing relevant that has been put on this factor. The applicant was one of three employees terminated over the incident and no information has been provided as to whether the other employees have made similar applications and if so in what circumstances.

[36] The particular prejudice the applicant will suffer in terms of being deported is not relevant in regard to this factor nor more broadly in deciding the question of whether a further period to apply should be allowed. As the Explanatory Memorandum 1 explains at 1573, the factors in s. 394(3) provide “… an exhaustive list.” and are based on the principles set down by the Industrial Relations Court of Australia and Brodie Hanns v MTV Publishing Ltd (1995) 67 IR 298. It is clear from that decision and its predecessors that the fairness referred to in s. 394(3)(f) does not relate to the consequences of not being able to pursue an application for a particular applicant.

Conclusion

[37] As had been often observed under the previous Workplace Relations Act 1996 it is to be expected of applicants that they will comply with the statutory timeframes for the lodging of applications. The Fair Work Act 2009 now requires such applications to be lodged within 14 days of the dismissal taking effect. Under the previous legislation, the Workplace Relations Act 1996, the statutory time limit was 21 days. There has been a conscious decision by the Parliament to reduce the statutory time limit by 7 days. At the same time the legislation does not now include a more liberal test for allowing a further period to make an application, indeed arguably the new reference to “exceptional circumstances” in s. 394(3) suggests a stricter test.

[38] The onus is on the applicant to persuade Fair Work Australia that a further period should be allowed for him to make his application beyond the statutory time limit of 14 days. In this case there are no acceptable explanations for the late application and none of the other factors weigh in favour of granting a further period for the making of the application. The situation the applicant finds himself in is not an unusual one. It cannot be said that the circumstances in this case, taking into account the factors above, are exceptional.

[39] Consequently I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before Fair Work Australia and is dismissed.

COMMISSIONER

 1   Fair Work Bill 2008 (Cth) Explanatory Memorandum

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