Mr Stephen Wintle v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne

[2015] FWC 1513

[2015] FWC 1513 [Note: An appeal pursuant to s.604 (C2015/8273) was lodged against this decision - refer to Full Bench decision dated 1 February 2016 [[2016] FWCFB 273] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Stephen Wintle
v
Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne
(C2015/1023)

COMMISSIONER ROE MELBOURNE, 5 MARCH 2015

Application to deal with contraventions involving dismissal - jurisdiction: extension of time.

[1] Mr Wintle resigned his employment by email on Friday 12 December 2014. The resignation was accepted and Mr Wintle did not seek to withdraw the resignation prior to submitting his general protections involving dismissal application. Prior to the resignation, but on the same day, Mr Wintle attended a disciplinary meeting with Metro at which he was issued with a first and final warning and was relocated from the Southern Group to the East Malvern depot. Mr Wintle says that his resignation was a constructive dismissal. Mr Wintle argues that the first and final warning was not justified and that the relocation meant that he would be unable to use public transport to travel to work on the occasions when his roster required an early morning start. Mr Wintle argues that he had no choice but to resign because he did not have available private transport and this would mean that he would be late for work and this would inevitably lead to further disciplinary action against him and then his dismissal.

[2] Mr Wintle lodged a bullying complaint with the Fair Work Commission (AB2014/191) on 20 November 2014. A conference was held at the Fair Work Commission on 16 December 2014 and the Applicant discontinued the matter on 17 December 2014. Mr Wintle accepted that one of the reasons for the discontinuance is because the other parties to the complaint and the Fair Work Commission pointed to the difficultly of pursuing the application given that the employment relationship had now ended.

[3] Mr Wintle lodged his general protections involving dismissal application in person at the Fair Work Commission on the afternoon of Monday 5 January 2015. Mr Wintle says that he tried to lodge the application on line earlier that day.

[4] The 21st day after 12 December 2014 (that is, not counting 12 December 2014) is Friday 2 January 2015. Friday 2 January 2015 was not a public holiday. I am satisfied that the application is therefore 3 days late. Two of those days are weekend days.

Reasons for the delay

[5] In respect to the reasons for the delay Mr Wintle points to the three public holidays which fell within the 21 day period. I consider that the short period of the delay and the time of the year are relevant considerations which would make it more likely for me to accept the reasons for delay as contributing to a finding of exceptional circumstance. However, in themselves the short period of delay and the time of the year are not sufficient explanation to support a finding of exceptional circumstance. Self evidently the time of year and a short period of delay are normal and regular events.

[6] Mr Wintle submits that he was due to go on two weeks annual leave from about 20 December 2014. However, Mr Wintle was not prevented from submitting an application prior to 20 December 2014 or after 20 December 2014. Mr Wintle agreed that he raised this issue as a reason why it was unreasonable for Metro to take the action of issuing the warning on 12 December 2014. He accepted that it was not a reason for the delay in making the application.

[7] Mr Wintle submits that legal professional services are generally unavailable during the period between Christmas and New Year. However, there is no need to seek legal assistance to complete an application and there are no particular reasons why it was necessary in Mr Wintle’s case. Mr Wintle submits that he did contact the law institute on 17 December 2014 and a firm of solicitors on the same day. Mr Wintle left details with the solicitors but they did not get back to him and so he rang them on 22 December 2014. He provided the lawyers with details of his case progressively between 22 December 2014 and 24 December 2014. Mr Wintle says that on 24 December 2014 “the lawyers complain about the amount of material submitted and request additional payments to release their findings.” After 4pm that day Mr Wintle says that he told the lawyers to proceed. However, Mr Wintle was aware that the law firm was closing down for two weeks. On 1 January 2014 the lawyer contacted Mr Wintle. Mr Wintle gave evidence that he was:

“unhappy with the conduct of the lawyers in as much as the lawyers have failed to understand the main merits of the case and utilise this in the production of the application for general protections. The lawyer appears to be calling from home by the use of mobile number and the applicant suspects that the lawyers have become disinterested in the case due in part to the complexity of the material submitted. On 1st January 2015 the applicant disengages the lawyers due to the lawyers poor attendance upon the case, their inability to understand and promote the merits of the case going forward and their failure to act upon the instructions as given by the applicants email response on the 24 December 2014. At no time did the applicant’s lawyers promote the notion or idea of the 2nd January 2015 as the final date for the application submission.” 1

[8] Mr Wintle gave evidence that he first considered making a general protections application on Monday 15 December 2014. However, due to the attention he was paying to the bullying application and related matters he did not fully put his attention to this matter until 17 December 2014 at which time he contacted job watch and sought legal advice. Mr Wintle agrees that he became aware of the 21 day time limit on 17 December 2014. Mr Wintle gave evidence that he formed the view from his own research that he was required to submit the application by 5 January 2015. Mr Wintle does not suggest that he reached this view due to representative error. That is, Mr Wintle does not suggest that legal representatives or any other representative gave him erroneous advice that the time period for lodging the application expired on 5 January 2015. In fact Mr Wintle continued during the proceedings to argue that the period should be calculated in working days not calendar days and that his application was not late. I note that if the calculation was based on working days the time period would have expired at a date considerably after 5 January 2015.

[9] Mr Wintle argues that the lawyers failed to act diligently in respect to his application. Given the obvious difficulties with Mr Wintle’s case and in the absence of more evidence I am unable to conclude that there was any failure on the part of the lawyers. What is clear is that the engagement of the lawyers was ended on 1 January 2015 and they did not provide any advice as to the time period for the making of the application. The failure to lodge the application in time was not due to representative error.

[10] Mr Wintle also provided a letter from the power company confirming a power outage at his home which lasted from the evening of 1 January 2015 until 1pm on 2 January 2015. Mr Wintle gave evidence that in fact the power to his particular house was not restored until 3.30pm or 4pm. However, there is no evidence Mr Wintle tried to lodge an application during this period and there was nothing to prevent him lodging an application later in the day on 2 January 2015. I am not satisfied that the power outage was a reason for the delay in lodging the application.

[11] Mr Wintle argues that the following matters affected his ability to complete an application:

● The attention he had to give to the bullying matter and associated activity prior to 17 December 2014.

● The lack of action by the lawyers meant that he only started to complete his application form on 1 January and 2 January 2015. He gave evidence that his application was about 80% completed on 2 January 2015.

● The power outage meant that he was not able to work on his computer during the period from 5.30pm on 1 January 2015 until around 3.30pm on 2 January 2015.

[12] I am satisfied that the primary reason for the delay was Mr Wintle’s mistaken belief that he had until 5 January 2015 to submit his application. Mr Wintle was aware of the 21 day time limit from 17 December 2014. I accept the evidence of Mr Wintle that he decided to submit a general protections application well before 2 January 2015. If Mr Wintle had believed that he had to submit his application by 2 January 2015, I am satisfied that it is reasonable to infer that he would have submitted an application by that date. Nothing raised by Mr Wintle explains why he could not and/or did not make the application within the relevant time period other than a misunderstanding of the relevant time period for making the application.

[13] Mr Wintle was well aware of the Fair Work Commission and the ability to lodge applications on line. Mr Wintle had in the past year lodged two disputes with the Fair Work Commission and participated in proceedings associated with those applications. Mr Wintle was aware of how to access information about the Commission and the Fair Work Act and had utilised these information and assistance sources previously.

Action taken to dispute the dismissal.

[14] Mr Wintle refers to a number of actions taken to dispute the allegations of wrong doing. 2 This is not of course the same thing as action taken to dispute the dismissal as some of the actions referred to by Mr Wintle occurred prior to 12 December 20143 or after the lodgement of this application.4 Some of the actions are not directly related to the allegations which led to the final warning. In particular I do not consider the actions to report alleged departures from safe working practices or other regulations to authorities to be relevant.5 However, I accept that Mr Wintle did take some actions to dispute the dismissal by contacting lawyers. An important factor in this case is that Mr Wintle did not take any action in the days following his resignation to retract his resignation. This is evidence of a lack of action to dispute the alleged dismissal.

Prejudice to Metro

[15] Given the short period of delay there is no prejudice to Metro. This is a neutral consideration.

Merits of the case

[16] I have not had the opportunity to hear all the evidence of the parties in this case. Mr Wintle strongly disputes the findings which led to the final warning and the transfer and Metro stands by its findings. However, Mr Wintle has to overcome the hurdle of establishing that he was in fact dismissed and particularly that “he was forced to resign because of conduct or a course of conduct engaged in by Metro.” Mr Wintle made submissions and provided some evidence about why this constituted a constructive dismissal. I have considered that material.

[17] It is an uncontested fact that the resignation immediately followed from the actions of the employer in issuing a final warning and a relocation. The warning letter makes findings that Mr Wintle behaved inappropriately and breached certain policies and procedures. The warning letter states that:

“It is expected that the following will occur:

1. You will represent Metro Trains Melbourne and yourself in a professional manner at all times avoiding bringing the company name into disrepute.
2. You will abide by the Metro Trains Melbourne Communication Policy when using company issued equipment and email accounts.
3. You will abide by all of Metro Trains Melbourne Policies, Procedures and Values and Behaviours.
4. Due to the nature of the your threats to team members in the Southern Group you will be relocated to the Eastern Group and work from the East Malvern Depot effective immediately.

The nature of these improvements required are such that we consider you should be able to improve your performance and conduct to an acceptable standard immediately.” 6

[18] The improvements required are clearly specified in the letter and the letter makes it clear that it is expected that Mr Wintle will be able to comply with this; that is, that his employment will continue. Accepting Mr Wintle’s case at its highest, it is difficult to see how the requirements specified are so onerous as to amount to a termination of employment. It is difficult to see how the warning letter left Mr Wintle with no realistic alternative but to resign. On what is before me I suspect that Mr Wintle could have pursued remedies for the perceived injustices whilst remaining in employment. On what is before me Mr Wintle could have, at least in the short term, made temporary arrangements to attend work when rostered to start early. 7

[19] It is not necessary to consider the merits of the general protection claim itself, it is only necessary to consider the merits of the threshold jurisdictional question of whether or not there was a dismissal. I accept that if the matter proceeded to court Mr Wintle may be able to present further evidence. However, Mr Wintle has provided considerable detail of the facts that he alleges and if those allegations are accepted I am satisfied that Mr Wintle is unlikely to be able to establish that he was dismissed. I am satisfied that Mr Wintle’s prospects of success are low. I consider it likely that the case would fail for want of jurisdiction.

[20] This consideration stands against a finding of exceptional circumstances justifying an extension of time.

Fairness as between Mr Wintle and other persons in a like position

[21] I do not a consider a decision one way or another in respect to this matter would be contrary to general principles of fairness or would be contrary to any general precedent. The determination of this matter is confined to the particular circumstances and facts of the case.

Conclusion

[22] This case is unusual in that the obvious weakness of the case is a significant factor against the granting of an extension. I consider on the material before me that it is likely that the case will fail for want of jurisdiction. If the merits were a neutral factor then it would be a more difficult decision but I would still consider that the reasons for delay are not strong enough to justify a finding that exceptional circumstances exist for the granting of an extension of time notwithstanding the shortness of the period of delay.

[23] Having addressed each of the factors in Section 366(2) of the Act I am satisfied that exceptional circumstances do not exist that justify the granting of the extension of time. I decline to grant an extension of time. The Application is therefore dismissed and an order to that effect will be published.

COMMISSIONER

Appearances:

Mr Wintle represented himself.

Ms M Hogan appeared for the Respondent.

Hearing details:

2015

Melbourne

February 27

 1   Exhibit W1, Submissions of 17 February 2015, at paras 16 (r), (s), (t).

 2   Exhibit W1, Submissions of 17 February 2015, at para 17.

 3   Exhibit W1, Submissions of 17 February 2015, at paras 17(b) and (c.)

 4   Exhibit W1, Submissions of 17 February 2015, at para 17(a).

 5   Exhibit W1, Submissions of 17 February 2015, at paras 17(d) and (e).

 6   Letter of 12 December 2014 attached to Application.

 7   Mr Wintle gave evidence that this occurred every third week on his roster.

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<Price code C, PR561639>