Ms Kirsty Aitken v Virgin Blue Airlines Pty Ltd
[2010] FWA 9883
•22 DECEMBER 2010
[2010] FWA 9883 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Kirsty Aitken
v
Virgin Blue Airlines Pty Ltd
(C2010/5924)
Vandeven, Leonie
V
Virgin Blue Airlines Pty Ltd(C2010/5925)
COMMISSIONER SIMPSON | BRISBANE, 22 DECEMBER 2010 |
Extension of Time
[1] This matter involves two section 365 applications filed on Friday 17 December 2010 accompanied by applications for orders extending time in relation to the section 365 applications.
[2] A conference was conducted on Monday 20 December 2010 where it was agreed that the matter could proceed to be determined on the papers and that Virgin Blue Airlines Pty Ltd (“Respondent”) would consider its position on the applications to extend time.
[3] I issued directions for the Respondent to file submissions and any other documentation in response to the affidavit, submissions and other documents filed on behalf Ms Kirsty Aitken and Ms Leonie Vandeven (“the Applicants”) in support of their applications by 5.00pm on Tuesday 21 December 2010.
[4] Representatives for the Respondent sent correspondence to me on the morning of Tuesday 21 December 2010 advising that the Respondent confirmed that it does not oppose the out of time applications. Accordingly the Respondent would not be filing any additional materials in response to the Applicants’ affidavit or submissions.
BACKGROUND
[5] On 27 August 2010 applications C2010/4743 and C2010/4745 were filed by the Applicants pursuant to section 773 of the Fair Work Act 2009 (Cth) (“the Act”) for relief in respect of alleged unlawful termination (“the unlawful termination applications”).
[6] These two applications were brought approximately one month after the Applicants’ termination of employment, and well inside the 60 days time limitation for an application under section 773 of the Act, or under the general protections provisions of the Act.
[7] I conducted a joint conciliation conference for both matters C2010/4743 and C2010/4745 on 12 October 2010.
[8] An affidavit of Ms Terri Butler, a solicitor of the firm Maurice Blackburn Lawyers who is now representing the Applicants has been provided in the current matters before me in C2010/5924 and C2010/5925. Ms Butler has been advised by the Applicants that the day before the conciliation conference on 12 October 2010 in the earlier matters the Respondent had raised an issue at the time arising from section 723 of the Act as to whether the Applicants were entitled to bring the unlawful termination applications.
[9] Ms Butler’s affidavit states that each Applicant sought advice from the solicitor acting for them at the time in respect of the point raised on behalf of the Respondent and each was advised that the applications had been correctly made and were within jurisdiction. Each Applicant relied on that advice.
[10] The affidavit also states that on the day of the conciliation conference on 12 October 2010 the solicitor for the Applicants again confirmed the view that the applications had been correctly made and were within jurisdiction. This is consistent with my recollection as the presiding member at that conference concerning matter numbers C2010/4745 and C2010/4743.
[11] The unlawful termination applications were not resolved at conciliation on 12 October 2010.
[12] On 29 November 2010 the Applicants’ solicitor wrote to the solicitors for the Respondent advising that they intended to request that I issue a certificate. 1
[13] On 30 November 2010 the Respondent wrote to me consenting to certificates being issued under section 777 of the Act subject to a reservation of the assertion that;
“... because of section 723 of the Act, the Applicants were prevented from making an unlawful termination application because each is entitled to make a general protections court application under Part 3, Division 1 of the Act in relation to the same conduct.” 2
[14] The Applicants received a copy of that correspondence on 30 November 2010 by email from their then solicitor.
[15] The Applicants say that they sought to speak with their solicitor about the matter generally and the reservation that had been referred to in the correspondence from solicitors acting on behalf of the Respondent however they could not reach their solicitor to speak with him. It is said in the affidavit of Ms Butler that the Applicants sought to contact their solicitor by telephone and email however were unable to do so.
[16] I issued the certificates as requested by the solicitor for the Applicants on 9 December 2010.
[17] It is stated in the affidavit of Ms Butler and the submissions of the Applicants that as the Applicants were unable to contact their solicitor they decided to seek urgent alternative representation.
[18] The reasons stated for seeking alternative representation included, that the Applicants were worried about why the issue relating to section 723 had been raised again when they had thought that it had been dealt with already, and they had relied on their then solicitor’s advice that they were entitled to bring their unlawful termination claims.
[19] The Applicants made the first available appointment with a different solicitor Ms Butler on the afternoon of 16 December 2010. It is claimed that as at that date, the Applicants had still been unable to reach their former solicitor to speak with him about the content of the letter of 30 November 2010.
[20] The applications in accordance with section 365 and applications for an extension of time were filed early the following working day on 17 December 2010.
CONSIDERATION
[21] The Applicants’ submissions address the issue of whether these section 365 applications are statute-barred as a result of section 777 certificates having been issued. The Applicants submit that the Act’s provisions do not prevent the procedural applications for extension of time, and the substantive section 365 general protections applications from having been made. The Applicants’ argument in regards to this issue is as follows:
Section 725 provides:
725 General rule
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.
[22] The provisions applying to unlawful termination provisions are sections 730 and 731.
[23] Section 730 relates to unlawful termination FWA applications, and operates to prevent other types of application (such as general protections applications) being made only if, relevantly, the unlawful termination FWA application has not resulted in the issue of a certificate. As the certificate has been issued in relation to the unlawful termination FWA applications, section 730 no longer operates to prevent a general protections application from being made.
[24] Section 731, which relates to unlawful termination court applications, does not operate until the said court application has been made. No court applications have yet been made in reliance on the certificates that have been issued under section 777.
[25] Accordingly, in the period between the issuing of the certificate, and the commencement of proceedings in the court, the Applicants are not statute barred by section 725 from making the applications.
[26] I agree with those submissions and accept that the applications before me in this matter are not statute barred.
[27] The Applicants’ submissions set out in some detail the provisions in the legislation that prevent an employee bringing proceedings under the unlawful termination provisions of the Act if the alleged dismissal would, if proven, constitute a contravention of the general protections provisions.
[28] The submissions drew particular attention to the explanatory memorandum for the Fair Work Bill 2009 which provided:
Clause 723 - Unlawful termination applications
2702. This clause prevents a person from making an unlawful termination application under Division 2 of Part 6-4 if they are able to make an application under the general protection provisions in Part 3-1 in relation to the same termination of employment. This is because the general protections and unlawful termination provisions cover the same grounds of when a termination is for a prohibited reason. The unlawful termination provisions are only intended to be an extension of these protections to persons who are not covered by the general protections in relation to the termination. The additional coverage in unlawful termination arises because these provisions rely on the external affairs power, as they give effect, or further effect, to the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer (Geneva, 22 June 1982) [1994] ATS 4.
[29] It was put by the Applicants and I accept that the Respondent in these matters is, and was at all material times, a constitutionally-covered entity, a trade and commerce employer, and a national system employee. Accordingly, conduct involving (in general terms) the Respondent would be capable of attracting the operation of Part 3-1.
[30] The Applicants’ submissions referred to a Federal Court decision in Maher v Mulgowie Fresh Pty Ltd 3 where it was held that the applicant in that case was a national system employee was entitled to the benefit of the general protection provisions in Part 3-1 and was not permitted to commence an action in section 772.
[31] It is clear the applications needed to be made under Part 3-1 of the Act and could not be brought under Part 6-4. On that basis I accept that this is a case of representative error.
[32] Consideration of extending time is provided for in section 366 of the Act. In Trudgett v Training Aids Australia Pty Ltd 4, Commissioner Raffaelli accepted that filing an application in the unlawful termination jurisdiction rather than the general protections jurisdiction constituted representative error and in a somewhat similar situation found that exceptional circumstances existed that allowed for an extension of time.
[33] The Applicants in submissions made reference to the following passage in Parker v Department of Human Services 5:
“Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:
Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
Mann v Minister for Immigration and Citizenship [2009] FACFC 150]”
[34] I adopt the construction as set out above in that decision.
[35] A number of other cases were cited 6 by the Applicants where representative error was accepted as grounds to support a finding of exceptional circumstances.
[36] It is the case of the Applicants that the reason for delay in the present case is solely representative error. I accept that is the case. It is clear that the former solicitor continued to maintain that the Applicants were entitled to bring unlawful termination applications after this view had been challenged.
[37] The Applicants conduct did not contribute to the delay as they relied upon the advice they received from their solicitor at the time. When the matter was raised a second time by solicitors for the Respondent in correspondence on 30 November 2010 it seems the Applicants were unable to obtain advice from their then solicitors through no fault of their own despite attempting to do so.
[38] Immediately upon obtaining alternative advice from a different solicitor the Applicants instructed that solicitor to file new applications and seek an urgent hearing.
[39] The unlawful termination applications were filed well inside time. The Applicants cannot be criticised for the manner in which action was taken to dispute the dismissal.
[40] The employer has been well aware of the Applicants’ challenge to their dismissals since the filing of unlawful termination applications. The Applicants in submissions have argued that the Respondent will suffer no more prejudice if the extension of time applications are granted.
[41] This is so because the Applicants have foreshadowed an intention if the applications for an extension are not granted to initiate immediate court proceedings; an application by the Applicants for amendment as occurred in Maher v Mulgowie 7; and/or if the Applicants are unable to progress their matters in the court because of issues arising from section 723, the discontinuance of those proceedings and the commencement of fresh proceedings in one of the anti-discrimination jurisdictions.
[42] I am satisfied that it is highly likely the Respondent will be faced with defending actions brought by the Applicants regardless of the outcome in these matters.
[43] The Applicants also raised the size and substantial resources of the Respondent as a further consideration in accepting that the Respondent would suffer little or no prejudice should the application be granted.
[44] In all of the circumstances I do not believe the Respondent will suffer prejudice caused by the delay.
[45] Reading the general protections applications with the original unlawful termination applications I cannot conclude that the matters are without merit.
[46] In matters involving representative error where issues have arisen regarding the filing of a matter pursuant to Part 6-2 when the matter should have been brought under Part 3-1 extensions have been granted.
[47] I am satisfied on the basis of my earlier findings and particularly in regard to the matters set out in section 366(2) that there are exceptional circumstances that satisfy me that time should be extended as requested by the Applicants. Orders giving effect to this decision will be issued with this decision. The substantive applications will be listed for conciliation as required by the Act in the near future.
COMMISSIONER
1 Letter dated 29 November 2010 from Hall Payne Lawyers to Corrs Chambers Westgarth Lawyers - TMB3
2 Letter dated 30 November 2010 from Corrs Chambers Westgarth Lawyers to Commissioner Simpson
3 [2010] FCA 439 dated 10 May 2010, Collier J
4 [2010] FWA 2235 dated 22 March 2010, Raffaelli C
5 [2010]FWA 1638 dated 1 March 2010, Lawler VP
6 Alexander v DYZ Australia Pty Ltd t/as Shield Dry Cleaners [2010] FWA 6186 dated 12 August 2010, Gooley C and Elzeiny v Combined Dispensaries Friendly Society Ltd t/as Friendly's Chemist [2010] FWA 7291 dated 21 September 2010, Roberts C
7 [2010] FCA 439 dated 10 May 2010, Collier J
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