Ms Robyn Forse v Bechtel Australia Pty Ltd
[2016] FWC 7778
•9 NOVEMBER 2016
| [2016] FWC 7778 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Robyn Forse
v
Bechtel Australia Pty Ltd
(C2016/5696)
COMMISSIONER SAUNDERS | SYDNEY, 9 NOVEMBER 2016 |
Application to deal with contraventions involving dismissal – application for extension of time refused – application dismissed.
Introduction
[1] The Fair Work Act 2009 (Cth) (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2
[2] This decision concerns whether I should exercise my discretion to allow Ms Robyn Forse (the applicant) a further period for her general protections application (the Application) to be made.
The Hearing
[3] On 28 October 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.
[4] The applicant gave evidence in support of her application for an extension of time. The respondent called evidence from Mr John Spana, Workforce Service Manager, and Mr Warren Achilles, Superintendent at the APLNG Project at Curtis Island.
Legislative Scheme
[5] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:
“(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.”
[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3
[7] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:
“In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
Consideration
Paragraph 366(2)(a) – reasons for delay
[8] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6
[9] There must be an acceptable reason for the delay in making the general protections application. 7
[10] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8 Ignorance of the 21 day timeframe is not an exceptional circumstance.9
[11] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 10 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:11
“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
Relevant chronology of events and reasons for delay
[12] There is no dispute and I am satisfied on the evidence that the applicant was dismissed by the respondent on 9 February 2016.
[13] The 21 day time period for the applicant to make her Application expired on 1 March 2016. 12 Given that the applicant filed her Application on 21 September 2016, the Application was 204 days late.13
[14] In accordance with the principles summarised in paragraphs [8] to [11] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 1 March 2016 to 21 September 2016. However, the circumstances from the time of the dismissal (9 February 2016) must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.
[15] The applicant relies on the following reasons for failing to file her Application within 21 days from when her dismissal took effect:
- 23 January 2016 – feedback letter to employment relations Bechtel;
(a) First, the applicant was not aware of the 21 day time limit for filing her Application. The applicant submits that neither her union (AMWU), nor the respondent, nor the Commission (with whom she had communication in June 2016) advised her that there was a 21 day time limit. It was not until the applicant met with a solicitor on 13 September 2016 that she was advised for the first time that there was a 21 day time limit for commencing proceedings in the Commission. At this time the applicant instructed her solicitor to take immediate action to lodge her Application out of time;
(b) Secondly, the applicant had been corresponding extensively with the respondent and third parties in an attempt to negotiate a resolution to her complaints. The applicant outlined the extent of her attempts to communicate with the respondent and other third parties in part 1.4 of her Application as follows:
- 23 January 2016 – meeting with AMWU Mr Dylan on the island;
- 28 January 2016 – meeting with ER Bechtel on the island;
- 30 January 2016 – meeting with ER Bechtel on the island;
- 3 February 2016 – spoke to Phil at the AMWU office Gladstone;
- 5 February 2016 – wrote feedback in the start card;
- 8 February 2016 – wrote feedback in the start card;
- 9 February 2016 – meeting with ER Bechtel;
- 21 February 2016 – letter to Matt Ovendon at Bechtel;
- 21 February 2016 – letter to Bechtel Brisbane office;
- 21 February 2016 – letter to complaints section of Bechtel;
- Unknown date after 21 February 2016 – letter to safety office of Bechtel, Aitkenvale, Townsville;
- Unknown date after 21 February 2016 – letter to safety office of Bechtel, Ann Street, Brisbane;
- 1 April 2016 – attended Women’s Health and spoke to a counsellor;
- May 2016 – wrote a letter of complaint to the editor of a Gladstone local paper which was not printed;
- June 2016 – sent a letter to the Labor Party and Pauline Hanson requesting assistance to pursue the complaint;
- 29 July 2016 – received a letter from the Labor Party giving places and names of persons who could further assist with her complaint;
- 29 July 2016 – wrote to Ingrid Lendel at Bechtel;
- 29 July 2016 – rang Community Legal Program office and given names of legal representatives;
- August 2016 – call to the Department of Justice and Attorney General to pursue a complaint;
- 26 August 2016 – Justice Department advised that Bechtel declined to participate in any mediation; and
- 13 September 2016 – rang Bechtel security pursuing evidence of assault against applicant.
[16] The applicant gave oral evidence, which I accept, to the effect that she had not sought any legal advice earlier than 13 September 2016 because she was trying to resolve her issues with the respondent herself. In addition, the applicant gave evidence, which I accept, to the effect that her union advised her that she had “no prospects of success”. The applicant contends that despite her repeated attempts after her dismissal to communicate with the respondent in order to discuss her concerns about her dismissal, she was not being answered. I accept her evidence in that regard. As a result the applicant attempted to reach out and ask for assistance from other third party sources, including by sending letters to a local newspaper and politicians.
[17] Although I have some sympathy for the applicant, the matters she relies on, as summarised in paragraphs [15] and [16] above, are not, either viewed in isolation or considered together, out of the ordinary course, unusual, special or uncommon.
[18] This factor weighs against granting the applicant an extension of time.
Paragraph 366(2)(b) – any action taken by the person to dispute the dismissal
[19] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 14
[20] The applicant was informed on 19 January 2016 that her position with the respondent had been made redundant and that her last day of employment would be 9 February 2016. In the period between her receipt of this notification on 19 January 2016 and the date of her dismissal on 9 February 2016, the applicant attended meetings with her union and the respondent’s employee relations team in relation to her proposed dismissal.
[21] In addition, following her dismissal on 9 February 2016 the applicant sent numerous letters to the respondent and other third parties, and made numerous requests to meet with the respondent, in relation to her complaints, the redundancy of her position and her dismissal. By so doing, the applicant took action to dispute her dismissal. Accordingly, this factor weighs in favour of granting the applicant an extension of time.
Paragraph 366 (2)(c) - prejudice to the employer (including prejudice caused by the delay)
[22] Prejudice to the employer will weigh against granting an extension of time. 15 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.16
[23] A long delay gives rise “to a general presumption of prejudice”. 17
[24] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 18
[25] The period of the delay in this matter was 204 days. I consider that to be a long period of delay.
[26] In its outline of argument, the respondent asserts that there is prejudice to the employer due to the applicant’s delay in filing her Application for two reasons. First, the respondent asserts that a significant passage of time has passed which will result in the recollections of various witnesses being diminished. Secondly, the employees who were directly involved in the process that resulted in the applicant being dismissed on the ground of redundancy are either no longer employed by the respondent or they will cease to be employed within the next month once the project is completed. There is some force to these arguments, but they must be assessed in the context of circumstances in which the respondent has been put on notice since prior to the applicant’s dismissal that the applicant had a number of concerns and complaints about a range of matters, including the redundancy of her position and her consequent dismissal. The respondent has been reminded of those matters on a number of occasions by the applicant since her dismissal.
[27] In all the circumstances of this case, I consider prejudice to the respondent to be a neutral consideration.
Paragraph 366(2)(d) - merits of the application
[28] The applicant contends that her employment was terminated as a result of her exercising a workplace right within the meaning of s.341(1) of the Act, namely the applicant made complaints about the intimidation, harassment and assault towards her and other employees by two fellow employees.
[29] The respondent submits that the applicant was dismissed as a result of a genuine redundancy.
[30] The resolution of the contested factual question concerning the reason(s) for the termination of the applicant’s employment will only be able to be determined after a full hearing on the merits, including cross examination of the decision makers. In those circumstances, I am satisfied that the merits of the Application is a neutral consideration in relation to whether or not I should extend time for the Application to be made.
Paragraph 366(2)(e) - fairness as between the person and other persons in a like position
[31] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 19 considered this criterion and said (at [41]):
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
[32] I am not satisfied that the issue of fairness as between the applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
[33] Having taken into account the matters referred to in paragraphs [12] to [32] above, I am, on balance, not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. The applicant’s circumstances were not out of the ordinary course, unusual, special or uncommon.
[34] Accordingly, the application for an extension of time is refused. The jurisdictional objection as to the Application being made out of time is upheld and the substantive Application is dismissed.
COMMISSIONER
Appearances:
Mr S Pobar, solicitor from Grant & Simpson Lawyers, on behalf of the applicant;
Ms N Smith, solicitor from Norton Rose Fulbright Australia, on behalf of the respondent.
Hearing details:
2016.
Newcastle:
October, 28.
1 Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
2 Secction 366(2) of the Act.
3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
4 [2011] 203 IR 1
5 Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]
6 Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v
Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.
7 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
8 Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9
9 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]
10 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
11 [2016] FWCFB 349 at [31]
12 That is, 21 days from 9 February 2016 (not including 9 February) is 1 March 2016.
13 That is, 21 September 2016 is 204 days after 1 March 2016.
14 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
15 Ibid.
16 Ibid.
17 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556
18 Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February
2003) PR927201 at [16]
19 [2016] FWCFB 6963
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