Mr Shane Seerden v iiNet Limited T/A iiNet
[2013] FWC 4076
•4 JULY 2013
[2013] FWC 4076 |
FAIR WORK COMMISSION |
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Shane Seerden
v
iiNet Limited T/A iiNet
(C2013/3483)
COMMISSIONER CLOGHAN | PERTH, 4 JULY 2013 |
Application to deal with contraventions involving dismissal.
[1] On 6 March 2013, Mr Shane Seerden (Applicant) made application to the Fair Work Commission (Commission) to deal with a general protections dispute in which he alleged that he had been dismissed in contravention of Part 3-1 General Protections of the Fair Work Act 2009 (FW Act).
[2] The application was made pursuant to s.365 of the FW Act.
[3] Mr Seerden alleges that he was dismissed in contravention of Part 3-1 of the FW Act by iiNet Limited T/A iiNet (Employer).
[4] Mr Seerden was dismissed by the Employer on 8 February 2013.
[5] The Employer denies that Mr Seerden was dismissed in contravention of Part 3-1 of the FW Act. Furthermore, the Employer raises the jurisdictional objection that the application was not lodged within 21 days after the dismissal took effect pursuant to paragraph 366(1)(a) of the FW Act.
[6] As the application was not made within 21 days after Mr Seerden’s dismissal took effect, it is necessary to determine whether exceptional circumstances exist to allow the application to be filed on 6 March 2013 pursuant to paragraph 366(1)(b) of the FW Act.
[7] In determining whether exceptional circumstances exist, it is necessary to take into account the criteria in subsection 366(2) of the FW Act which are as follows:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[8] Following a conference of the parties on 22 April 2013, procedural directions were issued on 23 April 2013.
[9] The Applicant provided his submission and affidavits on 8 May 2013.
[10] The Employer provided its submissions and an affidavit on 22 May 2013.
[11] The Applicant provided his response to the Employer’s submission of 22 May 2013 and a second affidavit of Mr Seerden on 27 May 2013.
[12] Neither party requested an oral hearing.
[13] Having considered the material provided as a result of the procedural directions, this is my decision and reasons for decision on whether exceptional circumstances existed to allow the Applicant to file his application on 6 March 2013.
APPLICANT’S SUBMISSION
[14] The Applicant’s primary submission is that of representative error.
[15] In support of the Applicant’s primary submission, he has provided an affidavit from his legal representative at that time, which states:
“At around 5:00 pm on 5 March 2013, I checked the Fair Work Commission website to confirm the amount of the filing fee for the Application. At this time, I discovered that the time limit for bringing the Application had changed from 60 days to 21 days effective from 1 January 2013”.
[16] Prior to 5 March 2013, the Applicant had contacted his (former) legal representative by telephone on the day after his employment ceased. The Applicant subsequently met with his (former) legal representative on 11 February 2013 and “without prejudice” correspondence was sent to the Employer on 14 February 2013. On 21 February 2013, the Applicant’s (former) legal representative received a “without prejudice” response from the Employer’s legal representative.
[17] Following further discussion between the Applicant and his (former) legal representative on 25 February 2013, the Applicant instructed his (former) legal representative to file with the Commission an application to deal with a General Protections dispute.
[18] The Applicant’s former legal representative states, in an affidavit, that he had previously advised his client, prior to becoming aware of the reduction in the timeline, that he had 60 days in which to file his application with the Commission.
[19] The Applicant submits the “without prejudice” correspondence between his (former) legal representative and the Employer’s legal representative as evidence of action to dispute the dismissal.
[20] The Applicant asserts that the delay was minimal and it is unlikely that the Employer has suffered any prejudice.
[21] The Applicant contends that his application alleging the Employer dismissed him in contravention of Part 3-1 General Protections of the FW Act has substantial merit.
[22] With respect to fairness between the Applicant and other persons in a like position, the Applicant submits it is of little or no significance in this particular application.
EMPLOYER’S SUBMISSION
[23] The Employer submits that regardless of whether Mr Seerden’s (former) legal representative is responsible for the late lodgement of the application, other factors are required to be considered in addition to representative error.
[24] These factors include:
● the Applicant did not act promptly on becoming aware that the application was out of time;
● the application was already five (5) days out of time before the Applicant’s legal representative became aware it was out of time;
● the application was filed on 6 March 2013 without addressing the issue of that it was out of time;
● the jurisdictional objection was raised by the Employer’s representative on 14 March 2013 and only addressed by the Applicant in conference on 22 April 2013;
● the current Notice of Representative Commencing to Act was filed on 18 April 2013; this was 43 days after the Applicant became aware of his former representative’s error; and
● whilst the application is five (5) days out of time, the prima facie position is that the time limit should be complied with.
[25] The Employer rejects the submission that the “without prejudice” correspondence is action to dispute the dismissal.
[26] With respect to the prejudice caused by the Applicant’s delay, the Employer refers to inconvenience, costs, resources and legal expertise required to defend the application.
[27] For the Employer, the merits of the substantive application turns upon whether Mr Seerden’s cessation of employment was a genuine redundancy.
[28] The Employer asserts that there is no unfairness as between the Applicant and other persons in a like position. As a matter of fact, the Applicant concedes in his affidavit that another Resource Planner (same occupation as the Applicant) who is taking maternity leave was not made redundant. This fact demonstrates that the Employer did not take into account whether a person was taking maternity leave in determining who was to be made redundant.
CONSIDERATION
Sub-section 366(2) of the FW Act
(a) Reason for the delay
[29] Mr Seerden submits that the delay in filing of this application is due simply to an error of his former legal representative. The Employer does not challenge that submission but responds by raising other issues, as it is entitled to do.
[30] Mr Seerden’s former legal representative’s error was to assume that the time limit for filing an application pursuant to s.365 of the FW Act was 60 days after the dismissal took effect when, from 1 January 2013, it had changed to 21 days.
[31] On or around 21 February 2013, Mr Seerden instructed his former legal representative to commence proceedings pursuant to s.365 of the FW Act. At this time, 13 days approximately had elapsed since Mr Seerden’s dismissal.
[32] Mr Seerden’s (former) legal representative, having realised his error on 5 March 2013, filed the application on 6 March 2013 - which is five (5) days after the standard statutory timeline.
[33] In this application the Employer, quite rightly, has not apportioned any blame to Mr Seerden. The error is clearly that of Mr Seerden’s former legal representative.
[34] Where the Applicant is blameless, as in this case, the principles in Clark v Ringwood Private Hospital [1997] AIRC 344 have been followed in this jurisdiction. Put shortly, those principles are:
● it is necessary to consider the facts of the particular application to determine the reason for the delay in filing the application within the statutory time limit;
● if the applicant is entirely blameless of the reason for the delay, subject to the remaining provisions of ss.365(2) of the FW Act, that may be a sufficient reason to grant relief to enable the application to be filed;
● where the Commission is satisfied that it is reasonable and acceptable to apportion some of the delay to the conduct of the applicant, that should be taken into account in determining whether to grant relief to extend the time limit for filing the application; and
● representative error as a reason for delay in not filing an application within the statutory time limit, is only one factor which has to be considered pursuant to s.366 of the FW Act.
[35] Having examined the submissions and supporting documentation, in my view, it would be wrong to “visit” the errors of Mr Seerden’s former legal representative on a blameless Applicant.
(b) Any action by the person to dispute the dismissal
[36] Mr Seerden telephoned his (former) legal representative the day after his dismissal. This, of itself, is indicative of his intention to dispute some aspect of his dismissal. This indicative action was followed up by a meeting with his (former) legal representative and “without prejudice” correspondence to this former employer. This correspondence received a “without prejudice” response from the Employer. While I have not been provided with the correspondence from the Applicant and the response from the Employer, the Employer does not dispute that it related to the Applicant’s dismissal.
(c) Prejudice to the employer (including prejudice caused by the delay)
[37] In view of the short period of delay, the Employer does not forcefully submit prejudice but refers to the inconvenience, costs, time, resources and legal expertise to defend the application. The plain fact is that these are matters which arise where applications are both within time, and where an extension of time is granted by the Commission. For the Commission to be satisfied that a party has been injured or suffered a detriment by the delay, it is necessary to demonstrate that, during the lapse in time, a significant event has occurred, such as loss of evidence, or the death or relocation of key potential witnesses. In the circumstances of this application, it is unlikely that the delay is so long that the memory of the circumstances which existed by persons involved is impeded by the delay of making the application on time.
[38] However, the lack of detriment to the Employer by the delay should not be seen by the Applicant as a satisfier of exceptional circumstances rather as not dissatisfying exceptional circumstances.
[39] The lack of prejudice to the Employer does not change the fact that exceptional circumstances must exist. If it appears that exceptional circumstances do exist, the Commission is required to take into account that, for reasons outside the control of the Employer, its defence to the Applicant’s claim has suffered with the passage of time.
[40] For this reason, I have adopted a neutral position when considering prejudice to the Employer.
(d) Merits of the application
[41] By correspondence from the Employer dated 3 February 2013, Mr Seerden’s employment ceased by way of a redundancy.
[42] The Applicant disputes the genuineness of the redundancy and claims that he was dismissed because he intended to exercise a workplace right by taking parental leave upon the birth of his children.
[43] As is often the situation in matters such as these, the parties assert in their respective submissions, that their case has substantial merit. On the limited information available and without the benefit of having those submissions tested, it would be inappropriate to form a view as to the merits of Mr Seerden’s application.
(e) Fairness between the person and other persons in like position
[44] The Applicant submits that this criterion is of little or no significance.
[45] The Employer submits that there has been no unfairness between the Applicant and other persons in a like position. Further, by the Applicant’s own affidavit another Resource Planner who was not made redundant is taking maternity leave.
[46] Again for reasons of limited information, I intend to adopt a neutral position with respect to the criterion.
CONCLUSION
[47] Having considered the submissions and attached documents, I am satisfied, for the reasons outlined above, exceptional circumstances existed to allow, pursuant to s.366(2) of the FW Act, Mr Seerden’s application to be filed out of time on 6 March 2013.
[48] Accordingly, my Associate will advise the parties of a conference in accordance with s.368(1) of the FW Act.
COMMISSIONER
Final written submissions:
Applicant: 27 May 2013.
Respondent: 22 May 2013.
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