Mr Urwin Ponninghaus v Webforge Australia Pty Ltd

[2010] FWA 2387

[2010] FWA 2387

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute

Mr Urwin Ponninghaus
v
Webforge Australia Pty Ltd
(C2009/272)

Metal industry
COMMISSIONER WILLIAMS	PERTH, 25 MARCH 2010

Extension of time.

[1] This application was made on behalf of Mr Ponninghaus (the applicant) by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) - Western Australian Branch (the ‘AMWU’)on 19 November 2009. The application is made pursuant to s. 773 and alleges Mr Ponninghaus was terminated by his then employer Webforge Pty Ltd (Webforge) in contravention of s.772(1)(a) and (d) of the Fair Work Act 2009 (the ‘FW Act’).

[2] Mr Ponninghaus was terminated on 14 September 2009.

[3] s.774 of the FW Act requires such an application be made within 60 days after the termination. This application is therefore six days out of time.

[4] The applicant submits that FWA should allow further time for the filing of the application as provided for by s. 774(2) however Webforge objects to this and asserts in any event the application is contrary to s.723 and so should be dismissed 1.

Background

[5] The applicant has been a delegate for the AMWU at his workplace since March 2009. Eleven days after his termination, on 25 September 2009, the applicantlodged an unfair dismissal application under s. 394 of the FW Act. This application alleged his termination was not a genuine redundancy, that it involved inadequate consultation under the Webforge (WA) Collective Agreement 2007 and that the real reason for termination was that he was an active union delegate on site and was to represent the union in forthcoming agreement negotiations.

[6] Webforge denied the allegations and opposed the application on the basis that the termination was a genuine redundancy.

[7] A conciliation conference was held on 27 October 2009 however the matter was not settled. The applicant discontinued this application on 12 November 2009.

The legislation

[8] The power for FWA to allow an extension of time is found in s. 774(2) which is set out below:

s. 774 Time for application

(1) An application under section 773 must be made:

(a) within 60 days after the employment was terminated; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the employee to dispute the termination; 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.

Consideration

[9] Both parties were invited to make submissions in writing addressing the relevant factors in s.774 and the effect of s.723. The facts are not contested so there is no need for proceedings on this extension of time application.

[10] I will consider the relevant factors in turn.

The reason for the delay

[11] The submissions for the applicant are that the applicant was entitled to free legal advice as a member of the AMWU. Following the unsuccessful conference on the unfair dismissal matter legal advice was sought but the AMWU representative at that time was unavailable. The file was given to the AMWU’s lawyers on 4 November 2009. Verbal legal advice was given to the AMWU on 12 November. The file was not returned to the Union until 18 November 2009 and this application was made the following day.

[12] The AMWU says at the time it informed Webforge of these developments and the delays in getting legal advice.

Action taken to dispute the termination

[13] The prior unfair dismissal application demonstrated a clear desire on behalf of the applicant to contest his termination.

Prejudice to the employer

[14] There is no evidence that an extension of six days would involve any prejudice to the employer.

The merits of the application

[15] The reasons for the termination and the merits of these, given they are in dispute, can only be determined by a full hearing and so these are a neutral factor in this instance.

[16] However there is the issue of the respondents submission that this application, being an unlawful termination application, is not able to be made because of s. 723 which is set out below:

s. 723 Unlawful termination applications

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.

(Underlining added)

[17] The employee and employer on the face of the materials are a national system employee and a national system employer. Consequently a general protections FWA application, which is an application under s.365 for FWA to deal with a dispute that relates to a dismissal allegedly in contravention of the general protections ( see s.727(2)), seems one option that the applicant was entitled to pursue.

[18] Section 723 however refers to a general protections court application. Section s.370(2) defines the term “general protections court application”, as “…an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.” Clearly then a general protections FWA application is not the same as a general protections court application

[19] The question for the purposes of s. 723 is whether the applicant is entitled to make a general protections court application?

[20] Section 371(1) deals with when a person can make a general protections court application.

371 General protections court applications

FWA conference to be held before application

(1) A person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(a) FWA has issued a certificate under section 369 in relation to the dispute; or

(b) the general protections court application includes an application for an interim injunction.

[21] Expressly a person is not entitled to make a general protections court application unless FWA has issued a certificate under s.369 or the general protections court application also seeks an injunction. In this case no s. 365 application has been made, consequently no conference has been held and no certificate has been issued by FWA. Neither it seems has a general protections court application which includes an application for an interim injunction been made. The s. 371(1) preconditions to the applicant making a general protections court application have not been met. Consequently I find that the applicant is not entitled to make a general protections court application.

[22] In my view then s. 723 has no bearing on this application and in particular does not prohibit it being made.

Fairness between the applicant and other persons in a like position.

[23] There is no evidence that there are others in a like position to be considered in this case.

Are there exceptional circumstances

[24] The Applicant was represented at all times, including in the lodgement of the prior unfair dismissal application, by the AMWU. This prior application was lodged within the required 14 day time limit. The Applicant initially chose this course of action to challenge his termination. Most of the 60 days allowed for under the FW Act for making the current application elapsed whilst the applicant’s prior unfair dismissal application was being dealt with.

[25] After the unfair dismissal conference and after discontinuing the unfair dismissal application there remained some time, within the 60 days, to make this application. The reason this did not occur is that the time taken to first get legal advice and then for the applicant’s file to be returned to the Union exceeded the time left in which to meet the 60 day statutory filing timeframe. Why the file needed to be returned before the application was made is not explained.

[26] It is not suggested in the submissions that the applicant, his Union representatives or his legal advisers where unaware of the time limit for making this application.

[27] The reasons for the delay in this case are the cumulative effect of the applicant first choosing to pursue the prior unfair dismissal application and later wishing to take further legal advice before making this alternative application.

[28] Depending on the factual background of a case the FW Act may allow an employee to challenge their termination through more than one type of application. This is recognised by s. 725 amongst others provisions in the FW Act. There are also different time limits for different types of applications.

[29] A natural consequence of these alternatives is that potential applicants have to make decisions as to which type of application to lodge and often will seek advice regarding these choices. This is a difficulty faced by many applicants. To that extent the applicant’s situation in this case cannot be said to be out of the ordinary, unusual or uncommon. The reasons for the delay in this case therefore do not themselves amount to exceptional circumstances.

[30] The other factors considered above do not add sufficient weight toward concluding more broadly that the circumstances here are exceptional such that an extension of time to make the application should be allowed because of those factors.

[31] I decline to allow an extension of time. This application is dismissed.

COMMISSIONER

 1   Deacons’ Letter to FWA 30 November 2009

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