Ms Barbara Neilson v Bazza's Bakeries Pty Ltd

[2014] FWC 2020

[2014] FWC 2020

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Barbara Neilson
v
Bazza's Bakeries Pty Ltd
(U2013/14623)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 3 APRIL 2014

Summary: s.394 - extension of time - general protections application discontinued and application under s.394 lodged out of time - responsibility for the delay with industrial representative and solicitors - forum shopping.

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (“the Act”) in which the Applicant, Ms Barbara Neilsen, seeks an unfair dismissal remedy in relation to her alleged dismissal by Bazza’s Bakeries Pty Ltd (“the employer”). The Applicant had been employed since March 2012 on a permanent part-time basis.

[2] The employer contends that the named employer on the application is inaccurate and that the Applicant was in fact employed by Murrumba Bakeries Pty Ltd (from 1 March 2013).

[3] Further, the employer has raised an objection to the application proceeding. That objection is based on the claim that the application was not made in compliance with s.394(2)(a) of the Act.

[4] The Applicant’s dismissal appears to have taken effect on 9 July 2013, when her position was made redundant (so the employer contends) when the employer ceased to trade. The application for unfair dismissal remedy was lodged on 30 October 2013.

[5] It is only the matter regarding compliance with s.394(2) of the Act that is currently before me for determination. The matter regarding the identity of the legal employer has been set aside for the time being whilst material is prepared. The issues raised about the legal identity of the employer were only ventilated in any substance at the hearing itself. And at that time neither representative had been instructed in any detail whatsoever regarding the corporate structure of the employer (which seemed to comprise a number of possibly related companies), let alone the identity of the Applicant’s legal employer within that company structure.

Legislative context

[6] Section 394 of the Act provides as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.

Background

[7] It is said by the Applicant that she was initially employed at the Petrie site (from March 2012) and performed her duties at that site until March 2013. After that time the Applicant performed duties at the Murrumba site.

[8] The employer says that the Applicant conceded that she was struggling at the high-volume Petrie site. The employer therefore offered an opportunity (when it arose) for the Applicant to work at the lower volume Murrumba site.

[9] Some 4-5 months later, the Murrumba site closed, and the Applicant was made redundant (according to the employer). The decision to cease trading was taken immediately prior to the cessation of trading.

[10] It is alleged by the Applicant that the Applicant was not offered work back at the Petrie site, although a number of casual employees were provided such an opportunity. The employer’s representative seemed to indicate this was not true and that none of the relevant businesses continued to trade and no employees continued to be employed.

[11] The Applicant’s solicitor submitted that an application to deal with a general protections dispute was lodged in the Commission on 30 July 2013 (“the prior application”). That application dealt with the same facts as agitated in this application (“the current application”).

[12] The prior application had been made with the assistance of the Applicant’s union, the Shop, Distributive and Allied Employees Association (“the SDA”).

[13] The matter was subject to a conciliation conference before a member of the Fair Work Commission. The matters in contention were not resolved and a certificate under s.369 of the Act was issued on 10 September 2013. It appears that no (and the parties had no recollection of) advice under s.370 of the Act was given to the parties.

[14] It was contended that the SDA and the Applicant met with the Applicant’s (current) solicitors on 23 September 2013. The current solicitors filed in the Circuit Court on the following day, 24 September 2014.

[15] Upon the Applicant’s solicitors subsequently perusing the information in respect of the general protections dispute application, they advised the Applicant that it was their considered advice that the general protections dispute application initiated by the SDA was “somewhat misguided”. The solicitors subsequently described the decision taken by the SDA as being “a misguided opinion from the outset [...]”.

[16] Following a mention in the Circuit Court on 21 October 2013, a notice of discontinuance was filed in the Federal Circuit Court subsequently. The solicitors considered “that it was more prudent to pursue this matter through an unfair dismissal application”.

[17] The Applicant was then advised by her solicitors to commence proceedings in respect of an unfair dismissal application under s.394 of the Act.

[18] The Applicant’s solicitor (her current solicitors) then on her behalf lodged the current application on 30 October 2013.

[19] The application is not compliant with the requirements of s.394(2)(a) of the Act.

[20] The Applicant’s solicitors contend that the Applicant was being “proactive” in pursuing this matter (by which it was meant, presumably, that the Applicant had sought redress in relation to the termination of her employment from the date the termination took effect onwards). It was also said that the Applicant had “earnestly attempted to pursue the matter through the appropriate channels and the discontinuance of the general protections application was due to some extent to the desire of not taking up the time of the courts for a misguided application.”

[21] It was said that “it was on this basis that the Applicant and solicitors considered it more worthwhile and more importantly, appropriate to pursue the matter through an unfair dismissal application”.

[22] The Applicant’s solicitor contended that this was not simply a case of the Applicant taking no action until outside of the time limit, but arose because her solicitors reviewed the course of action that was available to her.

[23] The Applicant’s solicitors also argued that there was no prejudice to the employer arising from the application. This was because the elemental claims in the current application are largely the same as they were set out in the prior application. That is, the merits reflect the same facts. The employer therefore was always on notice as to the factual matrix on which both the prior application and the current application was made.

Consideration

[24] I now turn to consider the matters under s.394(3) of the Act to which I must take into account for the purposes of reaching a finding as to whether or not there were exceptional circumstances in relation to the lodgement of the application that would give me reason to allow the application in a different time period to that stipulated in s.394(2)(a) of the Act.

(a) the reason for the delay

[25] The solicitor for the Applicant - Mr Christie of Sciacca’s Lawyers - gave evidence in this matter. That evidence was at times somewhat confusing as Mr Christie was not able to refer to a carefully organised set of notes to supplement his recollections. As a consequence there was some confusion at times about several of his claims, especially as related to chronological issues.

[26] In the end, it was the Applicant’s own evidence taken in the context of that of Mr Christie that enabled me to bring some structure to the essential argument.

[27] The Applicant herself claimed essentially that within two weeks of her dismissal (around 23 July 2013) she had approached the SDA in order to challenge her former employer’s decision to make her redundant.

[28] Essentially, the Applicant placed her grievance in the hands of the SDA to advance on her behalf. The SDA elected to pursue the matter by way of an application under s.365 of the Act. A conciliation conference was conducted and no resolution of the matter was achieved. The SDA thereafter elected to proceed to the Federal Circuit Court for a determination of the claim.

[29] In the course of so doing, the SDA placed the matter in the hands of Sciacca’s Lawyers in Brisbane. On or about 24 September 2013, after a meeting which included a representative of the SDA, Mr Christie, and the Applicant, the SDA instructed Mr Christie to lodge an application in the Federal Circuit Court alleging a contravention of the general protections provisions. Mr Christie so acted promptly.

[30] Mr Christie however subsequently reached a view, it would appear, that the application he had filed in the Federal Circuit Court was unable to establish the precise workplace right that was being exercised at the time of the dismissal or identify with any precision the nature of the adverse action (given that the matter concerned an ostensible redundancy in circumstances where there was a business closure).

[31] Mr Christie initially indicated that he had acted in a short period following the meeting of 23 September 2013 to advise the SDA and the Applicant that the general protections application was misguided. Mr Christie’s recollection and his notes to which he referred did not yield any precise chronology as to when he provided advice to the SDA and the Applicant. In fact, his evidence in this regard was very confusing and was being reconstructed over the course of his examination.

[32] It came to pass, nonetheless, that Mr Christie did not receive any instructions until immediately before discontinuing the application in the Federal Circuit Court on or about 30 October 2013. The Applicant recalled that she gave her instructions (to proceed instead with an unfair dismissal application) after the Federal Circuit Court conference (which was after 21 October 2013). The Applicant corroborates Mr Christie’s evidence that he accepted the Applicant’s instructions sometime around the date on which he withdrew the general protections application (which was on or about 30 October 2013).

[33] There are aspects of this approach by the SDA and the Applicant’s solicitors that may suggest an effort has been made to ‘shop’ the application around the Court and Commission jurisdictions seeking a commercial outcome. This could explain why the application to the Court (made on or about 24 September 2013) was not discontinued (notwithstanding it had been “misguided” from the start) until after the initial conference (on or about 21 October 2013), and only after that re-directed as an application for relief in the Commission under s.394 of the Act. But even if this be true, it does not necessarily reflect the Applicant’s instructions. The only claims I have before me are that the changes in decision making arose from a late stage review of the prospects of success of the application under s.365 of the Act.

[34] That all said, the Applicant in this matter appears to have been quite active in pursuing her application. She had multiple meetings with the SDA and appears to have been active in respect of her relationship with Mr Christie. This is not an application where an applicant sat on his or her hands while a representative failed to act. Rather, this is a case in which the Applicant had trusted her affairs, in which she displayed a continuing interest, in the hands of her industrial representative (the SDA) and thereafter in the hands of her legal representative (Sciaccas Lawyers).

[35] Responsibility for the delay principally is attributable to what Mr Christie described as the SDA’s “misguided” general protections application. This is not a matter in which the Applicant can be held to be personally accountable for the apparent errors of her industrial representatives.

[36] I admit to being somewhat concerned by the amount of time the application spent in the hands of Mr Christie before such time as he was able to action any advice and to seek instructions. Mr Christie essentially contended that he filed the Federal Circuit Court application on 24 September 2013 without any regard to the content of the application itself. He did not review the file, provide further advice and receive subsequent instructions until the end of October 2013, some six weeks later. Mr Christie did not readily explain the delay in his advice process other than to refer to other commitments.

[37] I note that though the application to the court was seemingly “misguided”, as Mr Christie put it, it appears there was no advice under s.370 of the Act issued by the Commission to which Mr Christie made reference in buttressing his assessment of the case (or which may have caused the parties to assess the viability of the application at a much earlier time).

[38] But the focus of this particular matter is on the conduct of the Applicant. As I have said above, the Applicant appears at all times to have vested responsibility for the progress of her claim in the hands of her industrial representative (the SDA) and Sciacca’s Lawyers. If anyone is accountable for the lengthy delay in this matter it is the respective representatives and not the Applicant herself (who gave evidence of maintaining a considerable interest in the progress of her application(s)).

(b) whether the person first became aware of the dismissal after it had taken effect

[39] No issue arose in relation to when the Applicant became aware of her dismissal and because of this it is not a matter relevant to my deliberations.

(c) any action taken by the person to dispute the dismissal

[40] The Applicant challenged the dismissal within two weeks of the dismissal and appears to have agitated the matter through “lots of occasions” when she met with the SDA subsequently. The Applicant does not appear to be a litigant who was disinterested in the progress of her application.

(d) prejudice to the employer (including prejudice caused by the delay)

[41] The employer (as it may be) appears to be no longer trading and the director (of the relevant company/companies) seems to be facing bankruptcy. It was put to me that the employer has no resources to apply to proceedings such as the current one (which has been brought on for no fault of its own, but rather because of the actions of the Applicant’s representatives).

(e) the merits of the application

[42] The merits of the matter have not been explored in any great detail, though there is sufficient material before me to suggest that the application will not have a necessarily easy course. This is only because I am informed at this stage that the employer (as it may be) is in a distressed financial position (hoping that a secured or unsecured creditor might trigger the appointment of a liquidator - which it cannot afford to appoint itself). I was also informed that the Applicant’s termination arose when the employer shut its doors and ceased trading (though these are all matters yet to be made out).

(f) fairness as between the person and other persons in a similar position.

[43] No issue arose in relation to the comparative fairness between the Applicant and some other unidentified person. There was another person, a Ms Cavendish, who made an application under s.365 of the Act at the same time as the Applicant. But it was put to me in the proceedings by Mr Christie that Ms Cavendish’s matter related to a different factual matrix.

Conclusion

[44] In considering all the circumstances of this matter (including the prejudice to which the employer is exposed) I am not inclined to hold the Applicant herself responsible for the extended delay in lodging this application. Responsibility in that regard falls to her various representatives, in whom she had placed her confidence to properly evaluate her case, and proceed accordingly.

[45] Representative error is an established ground for a finding of exceptional circumstances in relation to the requirements of s.394(2)(b) of the Act. So it is the case here. The only partial redress an employer may have (in relation to a lawyer or paid agent) in that regard is through an application for costs.

[46] I will allow the application in a different period of time than that stipulated in s.394(2)(a) of the Act.

[47] That said, there is some doubt - which became apparent over the course of the hearing in relation to this matter - as to whether the Applicant has sufficiently identified her legal employer for the purposes of future proceedings. The Respondent contends that the Applicant has misunderstood the relevant corporate structure and has named as a legal employer (and as Respondent) an incorrect proprietary limited company (which may or may not exist). It will be the case that a further, jurisdictional related proceeding is required as this matter remains in contest between the parties.

[48] Other complexities arise because of the financially stressed circumstances of the former employer (as it may come to be defined). I have alluded to these above.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr T. Christie, for the Applicant

Mr. D. Rosenblum on behalf of the Respondent

Hearing details:

By telephone

2014

25 March

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