Mr Scott Irvine v Spandex Asia Pacific Pty Ltd T/A Spandex
[2018] FWC 6933
•13 NOVEMBER 2018
| [2018] FWC 6933 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Scott Irvine
v
Spandex Asia Pacific Pty Ltd T/A Spandex
(U2018/7643)
COMMISSIONER JOHNS | SYDNEY, 13 NOVEMBER 2018 |
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] This decision is about whether the Commission should allow Scott Irvine (Applicant) a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged on 25 July 2018, that being 103 days after his employment was terminated by Spandex Asia Pacific Pty Ltd (Respondent) on 13 April 2018 and, consequently, 82 days after the 21 day time limit provided for in the FW Act.
[3] In his application for relief the Applicant conceded that his application was not within 21 days of the dismissal taking effect. He explained the delay as follows,
“I was on a return to work plan with Workcover after being injured in my role…. I had concerns about whether my employer could fire me or not & had the Workcover representative reassure me that they would not be able to, has they had injured me. The company then made me redundant & stated that they were actually making my pre-injury position redundant. Workcover confirmed that this explanation was fine & that I had no case.
Whilst trying to obtain more employment, I stumbled upon a job advertisement on Seek for the same company. I voiced my concerns about this to Workcover once again about this and was only then told that if I disputed by dismissal, then I would need to log a claim with Fair Work, not them. Workcover informed me of this right on the 24th of July 2018. Hence the delay.”
[4] It is to be noted that once WorkCover Qld made the above statement to the Applicant he filed his unfair dismissal application the following day.
The jurisdictional objection
[5] On 3 August 2018 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.
[6] On 11 September 2018 her Honour Deputy President Dean wrote to the Applicant inviting him to explain the delay in filing his application.
[7] On 17 September 2018 the Applicant replied (Exhibit A1). After explaining the background to his employment, how he suffered a workplace injury and how he had feared his employment might be terminated because of his injury, he wrote,
“I was informed by Work Cover, that it was impossible for Spandex to fire me, as they had injured me & that my job was safe.
I returned to Spandex on a recovery plan & was 3 weeks form the end of the plan when I returned from my lunch break on 13th of April & was asked to join the Manager in his office. It was explained to me that I was being made redundant & that I was to collect my belongings & an Uber could be ordered to return me to my home (as I was losing my company car, laptop & phone).
I immediately called Work Cover and asked for an explanation.
I was told that my position prior to my injury had been made redundant & that everything was above board.
I had quite a heated argument with Mr Da Silva, 3 but he continued to try to convince me that the process was followed correctly by Spandex, which I refuted.
….
I tried to get a resolution from Work Cover, but was continually told I didn’t have a case.
Whilst looking for more employment I stumbled across an advertisement for a position as a service tech for Spandex in NSW. 4 This further infuriated me & I again voiced my anger to Workcover, who only then told me that I should approach Fair Work. I did!
As my dismissal was caused by my injury & because I was getting dropped for being a liability, then common sense was telling me that Workcover should have dealt with the unfair dismissal. I was unfortunately incorrect.
I know & believe that I was sacked due to my injury & the fact that I was now a liability to Spandex. I was never hired as an installation technician only & refute the ‘new players in the industry’ excuse for my dismissal. This was confirmed by Daniel Lan’s answer to my question about who else was made redundant from the company at the time. To which the answer was “none”.
My delay in sending the application to Fair Work was directly caused by bad/incorrect advice from Workcover & lack of proof, which only came after seeing an ad for the position…”
Hearing
[8] On 18 September 2018 the matter was allocated to me for determination. On 19 September I issued directions for the filing and service of materials. The matter was listed for hearing on 28 September 2018.
[9] Prior to the hearing the Applicant did not file any additional material.
[10] At the hearing the Application represented himself. The Respondent was represented by Daniel Lara, its Financial Controller.
[11] During the hearing on 28 September 2018 it became apparent that further evidence about the involvement of WorkCover Qld needed to be considered. The Applicant was granted further time to file and serve that evidence. He filed a number of documents.
[12] On 16 October 2018 the matter came back on for hearing.
[13] The following exhibits were received into evidence during the hearing days on 28 September 2018 and 16 October 2018:
EXHIBIT NO. | DESCRIPTION |
A1 | Email dated 17/09/2018 |
A2 | Termination Letter dated 13/04/2018 |
A3 | Email Exchanges Between the Applicant and WorkCover Queensland |
A4 | Email from Eduardo Da Silva dated 24/07/2018 |
A5 | Screenshot of Job Advertisement |
A6 | Email from Applicant dated 30/09/2018 |
A7 | Transcript of Conversation Between Applicant And Eduardo De Silva |
A8 | Email from Mr Quigley Dated 14/04/2018 |
A9 | Email from Applicant Setting Out Timeline dated 15/10/2018 |
R1 | Email From Mr Lara Sent at 10.49 AM On 27/09/2018 |
R2 | Email From Mr Lara Sent at 1.44 PM On 27/09/2018 |
R3 | Mr Lara's Submissions Dated 15/10/2018 |
[14] Following the hearing the Applicant forwarded a range of other documents to my chambers. Although I have read them, they either repeated earlier submissions or were not of assistance to the Applicant. Consequently, I did not ask the Respondent to reply to them.
[15] In coming to this decision I have had regard to all of the evidence received by way of exhibits and the oral evidence on both days of hearing.
Legislative scheme
[16] 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.
[17] 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. 5 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. 6
Facts leading up to and relating to the dismissal
[18] Having regard to the evidence I make the following findings of fact:
a) On 15 August 2016 Scott Irvine commenced employment with Spandex Asia Australia Pty Ltd.
b) The Applicant suffered a workplace injury. He was diagnosed with a prolapsed disc (L3-L4).
c) In January 2018 the Applicant had a full discectomy.
d) Sometime after surgery the Applicant commenced a return to work plan.
e) At some point prior to 13 April 2018 the Respondent decided to abolish the Applicant’s Queensland Service Technician position.
f) On 13 April 2018 the Respondent terminated the employment of the Applicant (Exhibit A2). The Respondent told the Applicant that his position was redundant.
g) At the time of the dismissal the Applicant earned a base salary of $71,260 in addition to superannuation and the provision of a mobile phone, company car for personal use and a laptop.
h) By the end of April 2018 the financial performance of the Respondent as assessed against its budget was poor. The Service Department (in which the Applicant was employed) was running at a loss.
i) On 17 or 18 May 2018 the Applicant had a conversation with Mr Da Silva from WorkCover Qld about the termination of his employment. The Applicant was advised that the Respondent wanted to keep him on as a contractor or on a casual basis. The Applicant alleges that Mr Da Silva also told him that the “redundancy was legit”. However, the records of WorkCover Qld do not support a finding that such advice was given.
j) Approximately 2 months after the dismissal of the Applicant the Respondent advertised a position for a Hardware Technician and Applications Specialist (Exhibit A5) based out of Sydney (North West and Hills District) (Advertised Position). The role paid $50,000 - $64,999.
k) Around 24 July 2018 the Applicant came across the advertisement.
l) At 3.04 pm on 24 July 2018 the Applicant wrote to Mr Da Silva (Exhibit A3) in the following terms,
“…. To my knowledge only the injured me was made redundant & whilst trying to get my life on track & find a job, was very interested/angry to come across the attached advertisement on Seek for a tech to work for Spandex. Not even 3 months later! ….”
m) At 3.15 pm Mr Da Silva replied as follows (Exhibit A4),
“…. Regarding the redundancy my recommendation to you is that should you believe you were unfairly dismissed to make contact with Fair Work Australia to discuss this. This is separate to your Workcover claim.
I do agree with your regarding the advertisement on Seek this would be most frustrating. I believe though the advertisement is in Sydney and you are in Brisbane? ….”
[19] On 25 July 2018 the Applicant filed an application for an unfair dismissal remedy.
Consideration of s.394 criteria
Paragraph 394(3)(a) - The reason for the delay
[20] It is undisputable that there were 103 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission. That means that the application was 82 days late.
[21] I have included above the Applicant’s written explanations and reasons for the delay. They are essentially two-fold; namely that:
1) WorkCover Qld is to blame, and
2) It was not until he saw the Advertised Position that he was in a position to suspect his redundancy was not genuine.
Representative error
[22] Although the Applicant did not articulate it this way I apprehend that the “WorkCover Qld is to blame” argument is akin to the arguments usually advanced when it is alleged that there has been representative error.
[23] However, in order for that to be the case it must be established that WorkCover Qld was the Applicant’s representative in relation to his alleged unfair dismissal and that he was entitled to rely up them to advise him about unfair dismissal rights. The Applicant says it was not until 24 July 2018 that WorkCover Qld advised him to contact “Fair Work”.
[24] In Officeworks Ltd v David Parker 7 the Full Bench held that,
“[18] In circumstances where “representative error” is relied upon in Commission proceedings as an excuse or explanation for the failure to meet time limits, it is appropriate to have regard to the professional qualifications and expertise of the representative concerned. This will enable an assessment to be made as to the extent to which it was reasonable for a party to rely upon the skills and expertise of the representative in acting on their behalf. Clearly where the representative is a lawyer, an experienced industrial advocate, or an officer or employee of an organisation of employers or employees, it might more readily be concluded that representative error provides an acceptable explanation for the delay and such error should not be blamed upon the party concerned. However where the representative chosen has no experience or expertise in the area of legal and employment matters, there might be less justification for reliance on that person and the responsibility for delays or other errors might be attributed to the party concerned.
[19] In general, representative error may be more readily accepted as an explanation or excuse where the person relied upon has professional qualifications or expertise in dealing with legal and employment matters than where reliance is placed on a family member or friend.”
[25] In the present matter the Applicant appears to have relied upon Mr Da Silva to give him advice about whether he could file an unfair dismissal claim. However, even if Mr Da Silva did tell the Applicant that the “redundancy was legit”, I am not satisfied that the Applicant was entitled to rely upon unfair dismissal advice given by an employee of WorkCover Qld.
[26] Nothing is known about Mr Da Silva’s qualifications other than he works for WorkCover Qld. WorkCover Qld is a government owned statutory body, providing workers' compensation insurance. In relying upon one of WorkCover Qld’s employees it seems, more likely than not, that the Applicant has not relied upon a person who has professional qualifications or relevant recent expertise in dealing with legal and employment matters concerning unfair dismissal claims.
[27] Consequently, I am not prepared to accept that the Applicant was entitled to rely upon an employee of WorkCover Qld to provide him with advice about unfair dismissal. WorkCover Qld was not the Applicant’s representative as that concept is properly understood. It is a statutory body charged with responsibility for workers’ compensation claims, not unfair dismissal matters. The Applicant was not entitled to look to WorkCover Qld or Mr Da Silva as a source of information or advice.
[28] This is particular so in circumstances where:
a) prior to his dismissal the Applicant raised with Mr Da Silva his concern that the company would sack him because of his injury,
b) Mr Da Silva assured him this could not occur,
c) in any case the Respondent dismissed the Applicant.
[29] The Applicant had already received incorrect advice that the Respondent could not terminate his employment. Consequently, once the termination occurred, the Applicant was on notice that he probably should not rely upon WorkCover Qld about matters related to termination of employment. He was not entitled to rely upon what WorkCover Qld said about the lawfulness of the termination that was (allegedly) for redundancy. Further, he knew that WorkCover Qld was not taking any action in respect of the termination of his employment. He knew this for the 103 days that expired since the dismissal was effected.
[30] It is also apparent that the Applicant sought legal advice about the workers’ compensation matter. In late May/early June he made contact with Derek Legal. The Applicant complains that these lawyers “still never mentioned anything about a Fair Work claim for my dismissal.”
[31] A late lodgment of an application due to representative error may be grounds for an extension of time. There is a distinction between a delay caused by the representative where the employee is blameless and when the employee has contributed to the delay. The actions of the employee are the central consideration in deciding whether the explanation of representative error is acceptable. Where an application is delayed because the employee has left the matter in the hands of their representative and has not followed up their claim, the extension may be refused. Where an employee has given clear instructions to lodge an application and the representative has failed to do so, the extension may be granted. 8
[32] However, in the present matter there is no evidence about what actions the Applicant took. For example there is no evidence that he expressly asked for advice about unfair dismissal, received advice and issued instructions for proceedings to be commenced. Based on the material before (and I have provided the Applicant with two opportunities to file relevant material), I cannot draw a conclusion that the Applicant is entirely blameless.
[33] To the extent that the Applicant did not know about the 21 day time limit and relied upon others it is to be noted that ignorance of the timeframe for lodgment is not an exceptional circumstance. 9 In any case the Applicant conceded that he had heard about unfair dismissal before he was dismissed.10
Discovery of position vacant
[34] In so far as the reason for the delay was caused by the Applicant not being in a position to question the genuineness of the dismissal until he thought he saw an advertisement for a similar position to the one he held prior to his dismissal there is authority for the proposition that such circumstances can found an exceptional circumstance. 11
[35] It seems to me that, in the present matter, I should apprehend that the Applicant says the reason for the delay was:
a) he was lead to believe that his dismissal was due to a genuine redundancy;
b) he only found out that (he contends) a job similar to his was being advertised on about 24 July 2018; and
c) he then acted promptly in filing his unfair dismissal application on 25 July 2018.
[36] It is obvious in cases like this that an applicant may not become aware of the non-genuine nature of their redundancy until a period of time after their dismissal when they later discover that, in their view, someone took over their previous position or their previous position is now being advertised. This is an exceptional circumstance. This reason advanced by the Applicant was out of the ordinary, unusual or uncommon.
[37] Therefore this factor weighs in favour of granting the Applicant a further period to make his application.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[38] It is uncontested that the Applicant first became aware of the dismissal on 13 April 2018.
[39] Therefore this factor weighs against of granting the Applicant a further period to make his application.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[40] The Applicant took the following action to dispute the dismissal:
a) On 18 April 2018 he complained to WorkCover Qld,
b) In late May/early June he attended an appointment with a solicitor.
[41] The lack of action taken by the Applicant weighs against granting him a further period to make his application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[42] Having considered all the circumstances of this matter I am satisfied that, other than the usual prejudice associated with delay, the Respondent would not be the subject of any exceptional prejudice.
[43] The prejudice in this matter is neutral in relation to granting the Applicant a further period to make his application.
Paragraph 394(3)(e) - The merits of the application
[44] In the matter of Kornicki v Telstra-Network Technology Group 12the 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.” 13
[45] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
[46] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
[47] The substantive factual contest between the Applicant and the Respondent is whether there was a redundancy. The Respondent in its submission wrote (Exhibit R1),
“The dismissal was a case of genuine redundancy.
a. Service department continues to run an operating loss.
b. Role is not replaced in Queensland or any State of Australia.
c. Stronger competition due to new appointed distributors will impact service demand in Queensland.
d. It was explained to Mr Irvine that no suitable role exist, however we talked about an opportunity of contracting work should that suit.”
[48] The Respondent further submitted (Exhibit R2) that,
“….
- Spandex decision for redundancy is business based and we reject the reason due to injury. This was explained to Mr Irvine at the date of redundancy.
- Workcover provide a certificate to almost full capacity except limited to lift capacity at the time of redundancy.
- The advertisement in Sydney for [a] Hardware and Software Application Specialist is beyond the scope of Mr Irvine. This advertisement was 57 days after the redundancy date and based in Sydney. After further business consideration, Spandex has withdrawn the employment advertisement and offer.
- Spandex has hired a third party organisation to service our customers in Queensland. Over a 14 week period, the average hours worked are 6 hours per week.”
[49] The Applicant contends that the fact that a same or similar role was advertised approximately 2 months after his dismissal (albeit in a different State) is evidence that the termination of his employment was not a genuine redundancy. He contends that the substantive and operative factor for the termination of his employment was that he had been injured at work and was on a return to work plan. If he is correct it would not be the first time that an employer has tossed an injured worker on to the scrap heap in a dismissal disguised as a redundancy. However, this is not a factual dispute that can be resolved at a jurisdictional hearing.
[50] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.
[51] If the Applicant can establish to the satisfaction of the Commission that the redundancy was not genuine, but motivated by a prohibited reason associated with his injury at work and return to work then he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.
[52] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs 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
[53] This factor is not a relevant factor.
Conclusion
[54] For the reasons set out above, on balance, in the exercise of its discretion, and consistent with like cases where the alleged non-genuine redundancy is discovered later in time, the Commission, as presently constituted, is 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).
[55] An Order to this effect will be issued with this decision and the matter will now be referred back to the Panel Head responsible for unfair dismissal matters in Queensland for further programming.
COMMISSIONER
Appearances:
The Applicant for himself
D Lara for the Respondent
Hearing details:
By Telephone
28 September 2018
16 October 2018
Printed by authority of the Commonwealth Government Printer
<PR702234>
1 Section 394(2)(a) FW Act. Note that the 21 days for lodgment 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 i.e. the Work Cover officer dealing with the Applicant’s claim.
4 Note: the Applicant worked in Queensland.
5 [2011] 203 IR 1.
6 Ibid [13].
7 [2014] FWCFB 5779
8 Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony's Plumbing Service (2011) 202 IR 59 [35].
9 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Lawler VP, Sams DP, Williams DP, 16 February 2011) at para. 14, [(2011) 203 IR 1].
10 Transcript PN215.
11 Peter McMechan v National Roads and Motorists’ Association T/A NRMA Motoring & Services[2016] FWC 5826; John Byrnes v Rexel Electrical Supplies Pty Ltd [2015] FWC 5776; Jodi Williams v The Building Connection Group Pty Ltd[2017] FWC 30; Steve Sinclair v BlueScope Distribution Pty Ltd t/a BlueScope Steel[2015] FWC 5849; Jacqueline Schneider v Apollo Motorhome Holidays Pty Ltd[2015] FWC 482.
12 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
13 Ibid.
0
9
0