Paul Cocker v South32 Worsley Alumina Pty Ltd

[2016] FWC 2855

[2016] FWC 2855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Cocker
v
South32 Worsley Alumina Pty Ltd
(U2016/5910)

COMMISSIONER LEE MELBOURNE, 6 JUNE 2016

Application for relief from unfair dismissal - application dismissed.

Introduction

[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act) for unfair dismissal remedy. Mr Cocker (the Applicant) claims that he was unfairly dismissed from his employment with South32 Worsley Alumina Pty Ltd (the Respondent).

[2] The application was lodged on 4 April 2016. It is not in dispute that the dismissal took effect on 11 March 2016. The application should have been lodged no later than 1 April 2016 and therefore the application has been lodged three days late. The matter for determination is whether I grant an extension of time to allow the application to be made three days later than the statutory period.

Background

[3] As this application was lodged outside the statutory time frame, correspondence was sent to the Applicant on 8 April 2016 requiring the Applicant to file materials relevant to the consideration of the extension of time by close of business 15 April 2016. A Jurisdictional Conference/Hearing (extension of time) was listed for 29 April 2016.

[4] The Applicant failed to file the relevant materials by 15 April 2016. On 21 April 2016 the Applicant’s representative wrote to the Fair Work Commission (the Commission) seeking an adjournment of the Jurisdictional Conference/Hearing (extension of time) on 29 April 2016, as he was unavailable on that date.

[5] On 26 April 2016 my chambers wrote to the Applicant’s representative in response indicating that the Applicant had failed to comply with directions to file relevant materials and that I was inclined to dismiss the application if a response was not received by close of business 27 April 2016. No response was received from the Applicant’s representative.

[6] The Jurisdictional Conference/Hearing (extension of time) listed on 29 April 2016 was cancelled.

[7] On 6 May 2016 my chambers wrote to the Applicant noting that the Commission had not sent a copy of the correspondence dated 8 April 2016 or 26 April 2016 to the Applicant directly. This correspondence had been sent the Applicant’s representative only. Upon locating a copy of the Applicant’s email address in correspondence on the file I determined it was appropriate to allow the Applicant until close of business 10 May 2016 to provide reasons why the application should not be dismissed.

[8] Ultimately, the Applicant’s representative sent correspondence to my chambers on 10 May 2016 and I listed the matter for Jurisdiction Conference/Hearing, by telephone on 23 May 2016. On 19 May 2016 the Applicant’s representative wrote to my chambers to advise that the Applicant had accepted a short term work deployment outside of the Mandurah area and would not return until the evening of 23 May 2016. Mr Lumley advised that he was instructed to appear on his behalf and stated he assumed that this would be acceptable to me. No adjournment of the hearing was sought.

[9] The hearing took place as listed on 23 May 2016. Mr Lumley was granted permission to appear on behalf of the Applicant and Ms Bailey appeared on behalf of the Respondent. There was no appearance from the Applicant. At the conclusion of the hearing I determined that I would not grant an extension of time, that the application was dismissed and an order would issue to that effect. I indicated that I would provide written reasons for making that decision in due course.

[10] What follows are the reasons for making that decision.

The Law to be applied

[11] The Act provides that;

“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.”

[12] The term exceptional circumstances was considered by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd¹, where the Full Bench stated that;

“[13] 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.

...

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[13] While Cheyne Leanne Nulty v Blue Star Group Pty Ltd considered the term exceptional circumstances in relation to section 365 of the Act, the discussion is applicable to the term in section 394. I will adopt the approach of the Full Bench as to the meaning of exceptional circumstances in my determination of this matter.

[14] As noted above, the application was not lodged within the statutory period. Therefore the matter can only proceed if a further period under section 394(3) of the Act is allowed.

(a) the reason for the delay

[15] In a letter dated 30 March 2016 from Mr Lumley to the Respondent, there is the following paragraph:

“Because 19 days have passed since the termination of Mr Cocker’s employment, to protect his position, I have been instructed to lodge an unfair dismissal application with the Fair Work Commission. At this stage I do not have sufficient information to confirm that Mr Cocker’s case falls within the jurisdiction of the Fair Work Commission, but I am proceeding on the basis that it does.”

[16] In the correspondence to my chambers dated 10 May 2016, Mr Lumley wrote as follows:

“In talking to Mr Cocker about other matters, not related to employment or anything legal, he mentioned to me that he had been made redundant from his employment. Upon further questioning by me I advised him that he may have a claim for unfair dismissal and that I would, in the first instance write to the employer seeking clarification on the reasons for the termination.

I wrote to the employer on 30 March 2016, 19 days after Mr Cocker’s termination, the last day of his employment being 11 March 2016. The first day of being unemployed was Saturday 12 March 2016 or if weekend days are discounted, Monday 14 March 2016. The last day of the 21-day period for lodging an application was 1 April 2016. I held off submitting the application hoping to discuss the matter with the employer, but even to date I have had no response to my letter of 30 March 2016, even though in the last sentence I expressed a hope that the matter can be settled before.

The application was lodged by me on 4 April 2016, the next working day after the 21-day period. I would submit that Mr Cocker would be significantly disadvantaged if his application would be dismissed for being one day over the 21-day period and the employer not disadvantaged at all. Mr Cocker is a worker, he was not in a management or supervisory role. He relies on the institutions established by government to protect his employment rights. He accepts that the legislation provides that Unfair Dismissal claims should be lodged within the 21-day period. However, in this case he did not comprehend that he may have a valid claim for Unfair Dismissal. Until he obtained legal advice, by default, he was not actively seeking legal advice. He discussed it with me just two days short of the expiration of the 21-day period. He and I moved as quickly as possible and lodged the claim one day over the 21- day period.

I trust that the Commissioner will favourably consider accepting Mr Cocker’s application for Unfair Dismissal one day over the 21-day period.”

[17] There is no evidence from the Applicant as to what he instructed Mr Lumley to do and when he gave such instructions. Mr Lumley states in the letter dated 30 March 2016 to the Respondent that because 19 days have passed since the termination of the Applicant he is instructed to lodge an unfair dismissal application. Mr Lumley notes in the correspondence that he does not have sufficient information to confirm the Applicant’s case falls within the jurisdiction of the Commission, but he was proceeding on the basis that it does. In the letter dated 10 May 2016 to my chambers Mr Lumley states that he “held off” submitting the application as he was hoping to discuss the matter with the Respondent. This suggests that either the Applicant did not give clear instructions to his representative to lodge an unfair dismissal application within the statutory time frame or the Applicant’s representative did not follow the Applicant’s instructions.

[18] To be clear, it was not submitted by the Applicant’s representative that the reason for the delay was representative error. However, in light of the correspondence, I have considered whether representative error might be an acceptable reason for the delay. The late lodgement of an application due to representative error can be considered an acceptable reason for the delay, depending on the circumstances.

[19] The leading authority on the approach to dealing with representative error as a reason for delay is Clark v Ringwood Private Hospital 2, which in turn been cited in Davidson v Aboriginal and Islander Child Care Agency3 and further cited in McConnell v A and PM Fornataro T/A Tony’s Plumbing Service.4

[20] Relevantly Clark v Ringwood Private Hospital makes clear that a late lodgement of an application due to a representative error may be grounds for an extension of time. However, there is a distinction between the delay caused by the representative where the employee is blameless and other circumstances where there may have been representative error but in fact the employee, or the Applicant, has contributed to the delay.

[21] It is also clear on the authorities that a representative error includes inactivity or a failure to act promptly on the part of the representative. However, the actions of the employee are the central consideration in deciding whether or not the explanation of representative error is acceptable. For example, in that context, if an application was delayed because the employee has left it in the hands of the representative and simply not followed up their claim, then an application might be refused. However, where an employee has given clear instructions to lodge an application and the representative has failed to do so then an extension may be granted. 

[22] In this matter, the actions of the Applicant were to talk to Mr Lumley where he “obtained legal advice by default…two days short of the expiration of the 21 day period.” 5 Beyond that I have no evidence from the Applicant as to what instructions he gave Mr Lumley. The actions of the employee are the central consideration. The evidence on this issue does not satisfy me that there is an acceptable reason for the delay.

[23] As to any other reason for the delay, on the day of the hearing Mr Lumley made the following submission:

“The last day of the 21 days was on a Friday and as I understand it, that had Mr Cocker's application has been lodged by 5 pm on the Friday, he would have been within the time.  It wasn't lodged until the Monday which went over the weekend, and had it been lodged on the Friday on or before 5 o'clock, I would submit that nothing much would have happened with it over the weekend until the Monday, until the time that the application was lodged.”  6

[24] With respect to Mr Lumley, this is an irrelevant consideration. There is no other matter raised which is relevant to the reason for the delay. There is no acceptable reason for the delay. This weighs against granting the application.

Section 394(3)(b) whether the Applicant first became aware of the dismissal after it had taken effect

[25] The Applicant concedes that he was notified of his dismissal on 26 February 2016. 7

[26] This is a neutral consideration.

Section 394(3)(c) any action taken by the Applicant to dispute the dismissal

[27] The Applicant was aware of his ability to make the application as conceded in the letter dated 10 May 2016 and as such the Applicant notified the Respondent of his intention to dispute his dismissal in the letter dated 30 March 2016. This is also consistent with the letter dated 10 May 2016 which provides that the Applicant’s representative “wrote to the employer on 30 March 2016, 19 days after Mr Cocker’s termination, the last day of his employment being 11 March 2016”.

[28] In the letter dated 30 March 2016, although the Applicant’s representative raised some concerns with the Respondent in relation to the dismissal it is unclear as to what the Applicant sought from the Respondent in their letter, aside from informing the Respondent of their intent to pursue the matter further and lodge an unfair dismissal application.

[29] Accordingly, as of the date of this letter (and prior to) the Applicant took no other steps to dispute the dismissal. That is, no further steps were taken during the statutory 21-day period which expired on 1 April 2016.

[30] Overall, this factor is a neutral consideration.

Section 394(3)(d) prejudice to the Respondent (including prejudice caused by the delay)

[31] Other than the usual prejudice that accompanies any granting of an extension of time, the Respondent does not raise any special prejudice that would arise if an extension of time were granted.

[32] The Respondent submits that this factor is neutral but does not support an extension of the period for the filing of the application.

[33] Overall, this factor is a neutral consideration.

Section 394(3)(e) the merits of the application

[34] The Respondent submits that it is likely that if this matter were to proceed to a determination, it would be found that the Applicant’s employment was a case of genuine redundancy and as such there are no jurisdictional grounds for an unfair dismissal remedy application.

[35] The Applicant submits it is not a genuine redundancy.

[36] The Respondent submitted the following:

“33. The Respondent submits that the Applicant’s employment was ended as a case of Genuine Redundancy under s.389 of the Fair Work Act 2009 and therefore was fair in the circumstances and does not fall within the jurisdictional grounds of an Unfair Dismissal Application.

34. The Respondent as part of an organisational restructure reduced the headcount within the Applicant’s department by six (6) positions. The Respondent in determining which Employees would be selected for the remaining positions conducted a selection criteria process which considered Employee’s skills to perform the role, quality of work, business knowledge, alignment to Our Values, and previous performance review scores. As a result of this selection process the Applicant was not successful in obtaining a remaining role and as such was notified in a meeting and in writing on 29 February 2016 that his role was no longer required and would cease effective 11 March 2016 (s.389 (1)(a) of the FW Act).

35. In the period from 29 February until 11 March 2016, in addition to its initial meeting with the Applicant, the Respondent consulted with the Applicant discussing such matters as the restructuring process and potential redeployment opportunities (s.389 (1)(b) of the FW Act).

36. The Respondent also contacted the Applicant on two occasions via telephone, and sent a text message (s.389 (1)(b) of the FW Act), however the Applicant only responded on 4 March 2016 via an email to the Respondent seeking clarification on the selection criteria process.

37. As the Respondent was unable to provide any suitable redeployment opportunities to the Applicant their employment was terminated on 11 March 2016.”  8

[37] I note that the Applicant’s representative appears to take issue with whether the Applicant’s job is no longer required. However, the main focus of Mr Lumley appears to be related to concerns about the selection process undertaken. However, this is not a basis for challenging whether the dismissal is a genuine redundancy. This is dealt with at Item 1553 of the Fair Work Bill 2008 Explanatory Memorandum, as submitted by the Respondent as follows:

“In the Applicant’s submissions there is some contention as to the selection process undertaken and it is assumed that this is their reasoning for the UFD Application. However, the Explanatory Memorandum to the FW Act (Paragraph 1553) provides:

Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal. If this is the reasoning for the UFD Application, then the Application fails to meet the jurisdictional requirements of the FW Act.” 9

[38] To the extent the Applicant’s case depends on argument about the criteria used to select the Applicant for redundancy, it is without merit. As to whether the termination was a genuine redundancy in other respects, it is not possible nor appropriate to determine. Whilst the merits of the application are relevant, the Commission should not embark on a detailed consideration of the substantive case.  10

[39] Overall, this is a neutral consideration.

Section 394(3)(f) fairness as between the person and other persons in a similar position.

[40] The Applicant’s representative made no submission on this point. I am not satisfied there is any particular matter that arises that is relevant to this consideration. This is a neutral consideration.

[41] In conclusion, I am not satisfied that there is an acceptable reason for the delay. I have considered whether representative error is an acceptable reason for the delay. For the reasons set out above I am not satisfied that it is. There are no other reasons for the delay. This weighs against granting the application. All of the other factors are neutral considerations.

[42] Taking into account all of the factors, I am not satisfied there are exceptional circumstances that would warrant allowing a further period for the making of an application for an unfair dismissal remedy. It is for these reasons that I refused to grant an extension of time.

[43] An order giving effect to this decision has been issued separately in PR580087.

COMMISSIONER

Appearances:

R Lumley for the Applicant

L Bailey for the Respondent

Hearing details:

2016.

Melbourne (by Telephone).

23 May.

Final written submissions:

20 May 2016

1 [2011] FWAFB 975

 2   Clark v Ringwood Private Hospital (1997) 74 IR 413

 3   Davidson v Aboriginal and Islander Child Care Agency (1998) 105 IR 1

 4   PM Fornataro T/A Tony's Plumbing Service (2011) 202 IR 59 [35]

 5   Letter from Mr Ray Lumley to the Chambers of Commissioner Lee dated 10 May 2016

 6   PN31

 7   Form F2 – Unfair Dismissal Application, filed 4 April 2016

 8   Respondent’s Outline of Submissions [33] – [37], filed 20 May 2016

 9   Respondent’s Outline of Submissions [38], filed 20 May 2016

 10   Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 [14]

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<Price code C, PR580084>