Mr Russell Titmarsh v Queensland Bulk Water Authority T/A Seqwater
[2015] FWC 8122
•25 NOVEMBER 2015
| [2015] FWC 8122 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Russell Titmarsh
v
Queensland Bulk Water Authority T/A Seqwater
(U2015/12775)
COMMISSIONER JOHNS | MELBOURNE, 25 NOVEMBER 2015 |
Application for relief from unfair dismissal - whether to extend time for lodging the application.
Introduction
[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2
[2] Yesterday at the conclusion of a jurisdictional hearing the Commission, as presently constituted, ordered that an extension of time be granted to allow Russell Titmarsh (applicant) a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his application was lodged on 11 September 2015; that being 35 days after his employment was terminated by Queensland Bulk Water Authority (respondent) on 7 August 2015.
[3] These are the reasons for that decision.
The jurisdictional objection
[4] On 18 September 2015 the respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect.
[5] Accordingly, the matter proceeded by way of a jurisdictional hearing because the application was 14 days late.
[6] On 26 October 2015 the Commission issued directions for the parties to provide submissions and witness statements in relation to the jurisdictional objection.
[7] The applicant file submissions3 and a Statutory Declaration from Gregory Heuston4, the applicant’s representative at the time the application from unfair dismissal remedy was lodged. In short Mr Heuston said the applicant, through no fault of his own, was a victim of representative error. Mr Heuston went into some detail to explain that there were two instances of representative error as follows:
a) First, that he had advised the applicant to lodge in the wrong jurisdiction, namely the Queensland Industrial Relations Commission (QIRC); and
b) Secondly, that he had prematurely filed in this Commission before he had properly discontinued the matter in the QIRC.
[8] The respondent also filed submissions5 and a Statutory Declaration from Zita Beuth (a solicitor employed by the respondent’s representative).6 In short, the respondent submitted that although the claim of representative error seemed plausible, the applicant had not provided a credible reason for the whole of the period that the application was delayed.
[9] The Commission, as presently constituted, noted that a full explanation for the period of the delay is required (citing Thiess Services Pty Ltd v Stephens.7)
The jurisdictional hearing
[10] A jurisdictional hearing occurred on 24 November 2015.
[11] With permission, pursuant to section 596(2)(a) of the FW Act, the:
a) applicant was represented by Mr J Franken from Employment Advocacy Solutions Pty Ltd; and
b) respondent was represented by Mr J Wells from King & Wood Mallesons.
[12] Neither Mr Heuston nor Ms Beuth were required for cross-examination.
[13] In addition to the witness statements that had been filed in the matter the applicant gave evidence on his own behalf. The respondent’s representative elected not to cross-examine the applicant.
Legislative scheme
[14] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.
[15] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group.8 In that matter the Full Bench held the following in relation to “exceptional circumstances”:
[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. 9
The comedy of errors performed by the applicant’s representative
[16] The following facts where either admitted or not contested:
a) On 4 March 2014 the applicant commenced employment with the respondent.
b) On 7 August 2015 the respondent terminated the applicant’s employment.
c) On 25 August 2015 the applicant filed an Application for Reinstatement in the QIRC (i.e within 21 days after the termination of employment effect) (QIRC application).
d) On 3 September 2015 the respondent notified the applicant of its objection to the QIRC exercising jurisdiction in relation to the QIRC application.
e) On 4 September 2015 the applicant’s representative concluded that the QIRC application was made in error and, on instructions, lodged an application with this Commission for an unfair dismissal remedy (1st FWC application);
f) On 9 September 2015 the applicant discontinued the QIRC application.
g) On or around 10 September 2015 the applicant’s representative advised the applicant that, because the 1st FWC application had been lodged prior to the discontinuance of the QIRC application, the 1st FWC application had been lodged prematurely.
h) The applicant instructed his representative to discontinue the 1st FWC application and to lodge a new application.
i) On 11 September 2015 the applicant commenced the current application (2nd FWC application).
Consideration
Paragraph 394(3)(a) - The reason for the delay
[17] It is undisputable that there were 35 days between when the termination of the applicant’s employment took effect and when the 2nd FWC application was filed with the Commission.
[18] The applicant says he is blameless in relation to the delay and that it was caused entirely by representative error. The late lodgement of an application due to representative error may be grounds for an extension of time.10
[19] The respondent says that, even if the representative error reason is plausible, there is an unexplained delay between when the 1st FWC application was lodged and the 2nd FWC application was lodged (i.e. a period of seven days). The respondent says that having concluded (on 4 September 2015) that the QIRC application was lodged in error, it took until 9 September 2015 before the Notice of Discontinuance was filed in the QIRC and a further two days before the 2nd FWC application was lodged. The respondent submits that this unexplained delay should weigh against granting the applicant an extension of time.
[20] In the applicant’s submissions and in the Statutory Declaration of Mr Heuston it was claimed that there was no such delay in the filing of the Notice of Discontinuance in the QIRC. Mr Heuston attested to having attempted to file the Notice of Discontinuance in the QIRC on 7 September 2015, but (again in error) failed to send the original notice to the QIRC as required by its rules.
[21] There was an inconsistency between Mr Heuston’s evidence before the Commission and an email that he had sent to Ms Beuth on 7 September 2015, about when the Notice of Discontinuance in the QIRC was filed. In his evidence before the Commission Mr Heuston said it was filed “on or about 11 am”. However, in an email sent to Ms Beuth on 7 September 2015 at 9.06 am, he says it has already been filed. The respondent, noting this inconsistency invited the Commission, as presently constituted, to find that no Notice of Discontinuance was filed in the QIRC on 7 September 2015. However, the respondent’s representative decided not to cross examine Mr Heuston and consequently chose not to put to him any allegation that his claim (that a Notice of Discontinuance was filed in the QIRC on 7 September 2015) was not true.
[22] There was no evidence before me that caused me to doubt the credibility of Mr Heuston (as opposed to there being significant evidence to cause me to doubt his competency as a representative). Accordingly I find that Mr Heuston did file a Notice of Discontinuance in the QIRC on 7 September 2015.
[23] Consequently none of the period between 4 September 2015 and 11 September 2015 is unexplained:
a) On 4 September 2015 the 1st FWC application was lodged;
b) 5 and 6 September 2015 were a weekend;
c) on 7 September 2015 Mr Heuston filed a Notice of Discontinuance in the QIRC;
d) on 8 September 2015 Mr Heuston became concerned that he had not received correspondence in relation to the Notice of Discontinuance filed in the QIRC;
e) on 9 September 2015 Mr Heuston delivered a Notice of Discontinuance in the QIRC;
f) on 10 September 2015 the applicant was advised about the premature filing of the 1st FWC application; and
g) on 11 September 2015 the 2nd FWC application was lodged.
[24] In the face of the above, the respondent withdrew its objection to an extension time being granted to the applicant.
[25] Noting the instances of representative error and the explained period of delay this factor weighed in favour of granting the applicant an extension of time.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[26] It is uncontested that the applicant first became aware of the dismissal on 10 August 2015. Although the termination of the employment occurred on 7 August 2015, the applicant was not advised of the same until 10 August 2015.
[27] This factor weighed against granting the applicant an extension of time.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[28] The applicant took the following action in relation to the dismissal:
a) he filed an application in the QIRC; and
b) he filed two applications in this Commission.
[29] The action taken by the applicant weighed in favour of granting him a further period to make his application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[30] Noting that the delay was only 14 days it is difficult to see how the respondent would suffer any prejudice other than the usual prejudice associated with delay. There would be no exceptional prejudice.
[31] In any case I treated the prejudice to the respondent as a neutral factor in considering whether to grant the extension of time.
Paragraph 394(3)(e) - The merits of the application
[32] In the matter of Kornicki v Telstra-Network Technology Group11 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”12
[33] The Commission, as presently constituted, noted that, for the purpose of determining whether to grant an extension of time to the applicant to file his application, it “should not embark on a detailed consideration of the substantive case.”13
[34] The Commission, as presently constituted, adopted this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
[35] The applicant gave evidence during the hearing. During his evidence he confirmed his period of employment with the respondent and also confirmed that he had given instructions to his representatives to write to the respondent on 9 March 2015 about the allegations made against him. In that correspondence the applicant refuted a number of the allegations made against him. Further, the correspondence noted that in the 10 years of his employment he had never received a formal warning with regard to his work or conduct.
[36] Having regard to the applicant’s evidence the substantive factual contest between the applicant and the respondent is whether there was a valid reason for termination of employment. Further, it is apparent that, even if there was a valid reason for termination, the applicant’s (asserted) unblemished work record might result in the termination of his employment being found to be harsh, unjust or unreasonable.
[37] In this regard the applicant’s case is not without merit or lacking in any substance.
[38] Because the applicant’s case is not without merit or lacking in any substance this factor weighed in favour of granting him a further period to make his application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[39] The Commission, as presently constituted is satisfied that the issue of fairness as between the applicant and other persons in a similar position is not a relevant consideration in this matter.
[40] Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
[41] For the reasons set out above, on balance, the Commission, as presently constituted, in the exercise of its discretion was satisfied that there were exceptional circumstances warranting the applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).
[42] An Order to this effect was issued in transcript.
[43] The matter will now be referred to the Unfair Dismissals Case Management Team for further programming.
COMMISSIONER
Appearances:
J Franken for the applicant
J Wells for the respondent.
Hearing details:
2015.
November, 24
Sydney.
1 Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
2 Section 394(3) FW Act.
3 Exhibit “A1”.
4 Exhibit “A2”.
5 Exhibit “R1”.
6 Exhibit “R2”.
7 [2014] FWCFB 2426 [37].
8 [2011] 203 IR 1
9 Above note at [13].
10 Clark v Ringwood Private Hospital (1997) 74 IR 413.
11 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
12 Ibid.
13 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
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