Neil Macleod v Multiplex Australasia Pty Ltd

[2024] FWC 2396

[2024] FWC 2396

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Neil Macleod
v

Multiplex Australasia Pty Ltd

(U2024/9189)

DEPUTY PRESIDENT BEAUMONT SYDNEY, 11 SEPTEMBER 2024

Application for an unfair dismissal remedy

The issue and outcome

1. On 5 August 2024, Mr Neil Macleod (the Applicant) applied for an unfair dismissal remedy having been dismissed by Multiplex Australasia Pty Ltd (the Respondent) effective 12 July 2024. The Respondent objected to the unfair dismissal application on the basis it was made outside of the statutory time limit prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act), and that the Applicant’s dismissal was by way of genuine redundancy. This decision deals with the first jurisdictional objection that the unfair dismissal application was made out of time.

1. Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect. The other three matters are not relevant for present purposes.

1. The Act requires the application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) are taken into account.

1. The Applicant sought to submit an amended outline of submissions and witness statement of Mr Rhys Cardinal, an employee of the Construction, Forestry and Maritime Employees Union, Construction & General Division, WA Divisional Branch (CFMEU), who it seems, assisted the Applicant in making his unfair dismissal application. Whilst the Applicant was required to file his material with the Commission on 28 August 2024 and did so, on 4 September 2024, an Industrial Officer of the CFMEU filed an amended outline of submissions and witness statement, absent seeking leave of the Commission to do so and in circumstances where it had not conferred about the late filing of the materials with the Respondent.

1. The Respondent objected to the receipt of the amended submissions and witness statement on multiple grounds, all of which have been considered, including that the amended documents prejudiced the Respondent’s preparation for the hearing and position in the matter.

1. At the hearing, and notwithstanding the protestations of the Respondent, I decided to grant leave for the Applicant’s outline of submissions and the witness statement of Mr Rhys Cardinal to be amended pursuant to s 586 of the Act. The Applicant had explained that typographical errors had been made in the witness statement of Mr Rhys Cardinal, which appeared to have flowed into the submissions. The explanation that the errors were typographical notwithstanding that they the involved dates that Mr Cardinal had arrived at when calculating the last day for filing an unfair dismissal application and in respect of his reckoning of time, were plausible. The last sentence of paragraph 8 of Mr Cardinal’s witness statement demonstrated what he considered to be the correct dates in the preceding sentences – those dates being reflected in the amended dates.

1. The Applicant’s application was made three days outside of the statutory period. The Applicant attributes the delay in making his application on representative error. Having considered all the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 394(2). Accordingly, the application is dismissed. An Order[1] to this effect will be issued with this decision.

1. Background

1. The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application are as follows.

1. On 24 June 2024, the Respondent notified the Applicant in writing of the proposed redundancy of his position at the Murdoch Health and Knowledge Precinct (Project). The letter informed the Applicant that the Respondent would be engaging in a consultation process with him shortly where there would be discussion of the proposed changes and consideration of any alternatives that may be available.[2]

1. By letter of 11 July 2024, the Respondent confirmed it had provided the Applicant with the letter of 24 June 2024 and had held a meeting with the Applicant on 27 June 2024 to discuss the matter of the proposed redundancy. The letter continued that whilst the Respondent had considered measures to avert or mitigate the adverse effect of the change on the Applicant’s employment, such as considering redeployment opportunities, there were no suitable redeployment opportunities available for the Applicant.[3] The Applicant was advised that his employment would cease effective 12 July 2024.

1. Mr Cardinal gave the following evidence:

a)   the Applicant contacted the CFMEU and requested assistance on 11 July 2024;

b)   a CFMEU Official made attempts to resolve the dispute with the Respondent but in the absence of resolution, referred the matter to the CFMEU’s Industrial Team on 14 July 2024;[4]

c)   Mr Cardinal spoke to the Applicant on the phone on a number of occasions between 15 July 2024 and 26 July 2024 (inclusive of both dates) and met with the Applicant in person on 22 July 2024;[5] and

d)   Mr Cardinal stated that the Applicant requested that the CFMEU provide representation and assistance in filing an unfair dismissal application and that he understood from 16 July 2024, that the CFMEU would assist the Applicant in filing a claim and he represented the same to the Applicant.[6]

1. Mr Cardinal admitted that he mistakenly calculated the last day to file the application as being 3 August 2024, and as that was a Saturday, he mistakenly understood that the application could be filed in time on 5 August 2024. Mr Cardinal said he thought this was the correct date because the timeframe started running the day after termination.[7]

1. Mr Cardinal gave evidence that in line with his misapprehension, an application for unfair dismissal was drafted and settled by the CFMEU’s Industrial Officer, and that same Officer instructed Mr Cardinal to file the application as soon as possible.[8]

1. Mr Cardinal noted that at all times prior to 5 August 2024, the Applicant was forthcoming with information and responsive.[9]

1. Extension of time

1. For the Applicant’s unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. As noted, s 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.

1. Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are ‘exceptional circumstances’. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd, where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[10] It is accepted that 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, can be considered exceptional.[11]

1. In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the following clarification was provided by the Full Bench regarding the assessment of exceptional circumstances:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[12]

3.1      Reason for the delay

1. In respect of the reason for the delay, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[13] The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all of the circumstances must be considered.[14]

1. The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[15] However, the circumstances from the time of the dismissal are 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.[16]

1. Shortly stated, the Applicant’s reason for the delay in making his application is representative error. According to the Applicant he is entirely blameless for the error. The Applicant submits that the Commission and its predecessors have accepted that representative error may constitute ‘exceptional circumstances’ for the purposes of s 394(3) of the Act.[17] In particular, the Applicant referred to the Full Bench decision in Robinson v Interstate Transport Pty Ltd, where the Full Bench expressed:

… We think that representative error, in circumstances where the Applicant was blameless would constitute exceptional circumstances under s.366(2), subject to consideration of statutory considerations in ss3.66(2)(b) to (e) of the Act.[18]

1. Clearly, a number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application.[19]

1. In McConnell v A & PM Fornataro,[20] a Full Bench decision that considered an out of time application under s 365 of the Act, but which is relevant for present purposes, it was said by the majority:

Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exits where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.[21]

1. To clarify, it is not necessary for an applicant to demonstrate that they were ‘blameless’ for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion.[22]

1. For the application to have been made 21 days after the dismissal took effect, it needed to have been made by midnight on Friday, 2 August 2024.

2. I am appreciative that the Applicant made timely contact with the CFMEU after having been notified of his dismissal, and that the Applicant gave instruction to the CFMEU to provide him with representation and assistance in filing an unfair dismissal application. However, in all the circumstances I consider this was to be expected. The Applicant had been placed on notice since 9 June 2023, when he was offered a voluntary redundancy by the Respondent, that the labour requirements at the Project were expected to reduce. Furthermore, the Respondent wrote to the Applicant on 24 June 2024, informing the Applicant that his role was being considered for redundancy. It was therefore not the case that the Applicant was unaware of the possibility of job loss. He was empowered with time to inform himself as to the options open to him by way of recourse and to seek information about the timeframes for the same.

1. Returning to the Applicant’s contention that representative error explained the late filing

of his unfair dismissal application, the first thing to be said is that no evidence was led from the Applicant, who is said by the CFMEU to have been forthcoming with information and responsive, prior to 5 August 2024.[23] However, Mr Cardinal’s evidence points to him having communicated with the Applicant between 15 July 2024 and 26 July 2024 (inclusive of both dates) and having met with the Applicant in person on 22 July 2024. It does not however particularise, that is provide details, of any communication from the Applicant post 26 July 2024.

1. It is not apparent on the evidence led that the Applicant took steps after 26 July 2024 to enquire and confirm that his application was being filed within the statutory timeframe or that it had been filed within the statutory timeframe. As was said by the Full Bench in Long v Keolis Downer, ‘an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by.’[24] When the Applicant’s conduct is examined on the evidence led, I am not persuaded that representative error provides a plausible explanation for the delay in the filing of the Applicant’s unfair dismissal application. It cannot be said that the Applicant actively took steps to enquire about the status of his application after 26 July 2024. It follows, on balance, that this weighs against a finding of exceptional circumstances.

3.2      Whether the person first became aware of the dismissal after it had taken effect

1. I am of the view that the Applicant became aware of his dismissal on 11 July 2024, one day prior to it taking effect. The Applicant therefore had the full 21-day period to lodge his application for an unfair dismissal remedy. In all the circumstances, this factor does not weigh toward a finding of exceptional circumstances.

3.3  Action taken by the person to dispute the dismissal

1. It is not in dispute, and I so find, that on behalf of the Applicant the CFMEU attempted to discuss the Applicant’s dismissal with the Respondent, but the parties were unable to reach agreement. Mr Cardinal states that as a consequence of the parties’ inability to reach agreement, the Applicant’s matter was referred to the CFMEU’s Industrial Team on 14 July 2024. This in turn meant, said the Respondent, that there were still 19 days remaining for the Applicant to lodge a valid unfair dismissal application. While that was the case, I am satisfied on the evidence that the Applicant took steps to dispute his dismissal and I consider this weighs in favour of a finding of exceptional circumstances.

3.4      Prejudice to the employer

1. The Respondent, appropriately in my view, submits that it does not claim to be prejudiced if an extension of time were granted. I am of the view that the Respondent would suffer no prejudice were the extension granted, but am mindful that the mere absence of prejudice does not in turn weigh in favour for a finding of exceptional circumstances.

3.5      Merits of the application

1. In Telstra-Network Technology Group v Kornicki,[25] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[26]

1. The Respondent presses that the Applicant’s position as a forklift driver was made redundant by reason of a reduction in labour requirements due to the impending completion of the Project. As of 9 June 2023, the Applicant was offered a voluntary redundancy on the basis that the labour requirements at the Project were expected to reduce and thereafter the Respondent wrote to the Applicant on 24 June 2024, informing the Applicant that his role was being considered for redundancy. A meeting was held between the Respondent, the Applicant and the Applicant’s representative on 27 June 2024 to discuss redundancy, and on 11 July 2024, the Applicant was informed that his role was redundant, and his employment would end on 12 July 2024. The Respondent noted in the letter of 11 July 2024, that there were no suitable alternative roles in which to place the Applicant.

1. The Applicant appears to press that his dismissal was not a case of genuine redundancy because despite the Respondent’s representations, it still required employees on other projects where it had engaged labour hire to perform work.

1. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[27] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal, including whether it would have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise or that of an associated entity of the Respondent. If an extension of time were granted and the matter proceeded this would need to be examined. It follows that the merits in this case are a neutral factor.

3.6      Fairness as between the person and other persons in a similar position

1. The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm (Morphett), where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[28]

1. The Respondent submits that the key issue for the Commission’s consideration in respect to this factor is that the Applicant’s request for an extension of time is to be considered in relation to other applicants employed by the same employer, and affected by the same issue, who filed applications in time. The Respondent notes that neither the Applicant nor Mr John Jordan, the applicant in matter no. U2024/9188 filed their applications in time, and therefore there is no prejudice to either applicant in the event that they are both denied an extension.

1. The Applicant submits that the grant of extensions of time in cases of representative error are well-established and have been consistent between other persons in similar positions.

1. Based on the submissions filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party and therefore consider it a neutral consideration. The reason for so finding is that, as was said by the Deputy President in Morphett cases of this kind will generally turn on their own facts. For example, whilst representative error has been pressed as a reason for the delay in making the application, much will turn on each applicant’s conduct during the period of the delay and leading up to the period of delay. As to whether an applicant disputed her or his dismissal again, is dependent on the facts presented.

1. Conclusion

1. The test of exceptional circumstances in s 394(3) of the Act is a stringent one.

1. Based on the evidence before me, the Applicant has not provided a satisfactory explanation for the whole period of the delay in making his application. The remaining matters I need to consider tell against the application for an extension of time, are otherwise neutral, or as is the case regarding the disputation of the dismissal, weigh toward a finding that the circumstances were exceptional.

1. In these circumstances, having considered the submissions and findings made, I am unconvinced there are exceptional circumstances such that an extension of time should be granted. Further, having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that it is fair and equitable to grant the extension.

DEPUTY PRESIDENT

Appearances:

Mr T. Meagher for the Applicant
Mr C. Morgan for the Respondent

Hearing details:

By Telephone
6 September 2024

[1] PR779111.

[2] Digital Hearing Book pg 40. 

[3] Digital Hearing Book pg 41. 

[4] Amended Witness Statement of Rhys Cardinal [4].

[5] Ibid [4].

[6] Ibid [4].

[7] Ibid [8].

[8] Ibid [9].

[9] Ibid [10].

[10] (2011) 203 IR 1, 5 [13] (Nulty).

[11] Ibid 6 [13].

[12] (2018) 273 IR 156, 165 [38] (emphasis in original).

[13] Ibid 165 [39].

[14] Ibid.

[15] Long v Keolis Downer (2018) 279 IR 361, 371 [40] (Long).

[16] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12].

[17] Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728.

[18] Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728 [24].

[19] See, eg, Davidson v Aboriginal & Island Child Care Agency (1998) 105 IR 1; Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347; Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759 (Rogers); Melios v Qantas Airways Ltd [2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd[2011] FWA 2802; Long (n 7).

[20] (2011) 202 IR 59.

[21] Ibid 65 [35].

[22] Rogers (n 9) [17]; Long (n 7).

[23] Amended Witness Statement of Rhys Cardinal [10].

[24] Long (n 7) 375 [60].

[25] (1997) 140 IR 1.

[26] Ibid 11.

[27] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].

[28] [2015] FWC 8885, [29].

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