Paul Walker v Australian Broadcasting Corporation

[2017] FWC 2489

[2017] FWC 2489

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Paul Walker
v
Australian Broadcasting Corporation
(C2017/640)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 5 MAY 2017

Application to deal with contraventions involving dismissal.

[1] Mr Paul Walker alleged that the termination of his employment by the Australian Broadcasting Corporation was in breach of the general protections provisions of the Fair Work Act 2009. The ABC denies the allegation.

[2] Mr Walker was dismissed on 21 November 2016. Mr Walker lodged an unfair dismissal application on 12 December 2016 and it was unsuccessfully conciliated on 16 January 2017. Mr Walker was during this time represented by his union. On 5 February 2017, Mr Walker lodged an incomplete general protections application. On 6 February 2017, Mr Walker was sent a letter from the Registry, which incorrectly referred to his unfair dismissal application and his general protections application being made simultaneously, and advised him that he had 14 days to decide which matter he wished to proceed with. On the same day, he was sent a letter from the Registry advising that his general protections application was incomplete and he was advised that he needed to complete the F8 form and waiver form.

[3] On 13 February 2017, Mr Walker discontinued his unfair dismissal application.

[4] On 22 February 2017, Mr Walker was sent a reminder about his incomplete application.

[5] On 26 March 2017, Mr Walker filed a completed general protections application form but did not pay the fee. On 6 April 2017, he filed an incomplete waiver form. He then lodged a completed waiver form on 18 April 2017 and the waiver was granted that day.

[6] Mr Walker’s dismissal took effect on 21 November 2016. His general protections application, even if it were taken to have been lodged on 5 February 2017, was not made within 21 days of the date the dismissal took effect.

[7] In my view, had Mr Walker lodged a completed general protections application and paid the fee before he discontinued his unfair dismissal application, it would not have been a valid application. S.725 and s.729 of the Act prevents a person making a general protections application unless the unfair dismissal application has been withdrawn; failed for want of jurisdiction; or failed because it was genuine redundancy. However the application lodged on 5 February 2017 was incomplete and not accompanied by the required free. It is arguable that the application was not made on that date and was not in fact made until, at the earliest the 26 March 2017, when he lodged a completed application form or, at the latest, on 18 April 2017 when he lodged a completed waiver form and by these times his unfair dismissal application had been discontinued. Therefore I am satisfied that he was not at this time prevented from lodging a general protections application and seeking an extension of time. However, whichever these two dates is taken as the date he lodged his general protections application, it was outside of the statutory framework.

[8] The Fair Work Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[9] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd¹ where the Full Bench said:

“[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." [Endnotes not reproduced]

(a) the reason for the delay;

[10] Mr Walker gave evidence that he relied upon his union in relation to his dismissal and it was only after he received independent legal advice in February 2017 that he realised that he should lodge a general protections application. In his application form, Mr Walker described the contravention as “the employer has failed there (sic) duty of (sic) there (sic) employee who has suffered an adjustment disorder due to there (sic) workplace injury.” He then alleged that the ABC had breached s.344 of the Act.

[11] Mr Walker complained of unfair treatment by the ABC in relation to his return to work. He said he had returned to work for financial reasons and to keep his job. He acknowledged that his medical practitioner had cleared him to return to work. Mr Walker complained that he was unfairly put on a performance management plan and this led to his dismissal.

[12] To establish representative error requires more than an assertion of wrong advice. On the basis of what Mr Walker put forward at the hearing, particularly his complaint about the unfairness of his treatment by the ABC, I am unable to conclude the advice he received from his union to pursue an unfair dismissal claim rather than a general protections claim was wrong. An adverse action dismissal claim would determine whether Mr Walker was dismissed in contravention of Part 3-1 of the Act. It would not determine if the dismissal was unfair.

[13] However, even if representative error explained some of the delay, Mr Walker first lodged a general protections application on 5 February 2017 and was advised that it was incomplete on 6 February 2017. On 8 February 2017, Mr Walker said he would forward a completed application and asked that he be forwarded the letters in PDF format which occurred. A further email was sent on 22 February 2017 reminding Mr Walker of the need to file a completed application form. Despite this, Mr Walker did not file a completed application from until 26 March 2017. No reasonable explanation was provided by Mr Walker as to why he took so long to file a completed application form and either pay the fee or complete the waiver form.

[14] This weighs against a finding that there are exceptional circumstances.

(b) any action taken by the person to dispute the dismissal;

[15] Mr Walker disputed his dismissal by lodging an unfair dismissal claim. This weighs in favour of a finding that there are exceptional circumstances.

(c) prejudice to the employer (including prejudice caused by the delay);

[16] The ABC did not call any evidence of any prejudice to the ABC to support its submission on prejudice. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(d) the merits of the application;

[17] In the matter of Kornicki v Telstra-Network Technology Group² the 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 Commission said:

"The merits of the substantive 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."³

[18] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case."⁴ 

[19] Mr Walker was not able to articulate how the reason for his dismissal contravened Part 3-1 of the Act despite given evidence that he had legal advice to lodge this application.

[20] Mr Walker said he had been off work as he had a work related injury. He said he was forced to return to work because if he did not he would not have a job. There was no dispute that he was cleared to return to work in April 2016. He initially was placed on light duties but was then required to perform his full duties.

[21] Mr Walker said that on his return to work he was placed on a performance management plan. His representative submitted that because of his medical condition he was not able to comply with the plan and he was dismissed. His representative submitted that Mr Walker had been treated unfairly by the ABC both while he was off work and upon his return. It was submitted that the ABC treated him unfairly placed him on a performance improvement plan that it knew he would fail.

[22] The ABC denied that it dismissed Mr Walker in contravention of Part 3-1 of the Act. It submitted that it did not understand the basis of Mr Walker’s general protections claim. It submitted that Mr Walker was dismissed for poor performance. It submitted that the ABC was entitled to rely on the medical clearance provided by Mr Walker’s doctor.

[23] I am not satisfied on the basis of evidence and submission before me that Mr Walker’s claim is arguable. While this would normally cause me to conclude that this criterion weighs against a finding of exceptional circumstances in this case I find that it is a neutral consideration. Mr Walker relies on his incapacity to support his claim of unfairness. Part 3-1 does prohibit dismissal on the basis of a disability. I note that the ABC denies any knowledge of any disability and says the only reason for the dismissal was Mr Walker’s performance.

[24] I cannot preclude the possibility if the matter proceeded that the claim may be able to be brought under part 3-1.

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

[25] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm⁵  considered this criterion and said "cases 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.”⁶

[26] There were no submissions or evidence in relation to this criterion and I find it to be a neutral consideration.

Conclusion

[27] I am not satisfied that there are exceptional circumstances. Mr Walker has not provided a reasonable explanation for the whole of the delay. I am not satisfied that disputing the dismissal and a lack of prejudice is sufficient to support a finding of exceptional circumstances. I therefore decline to grant Mr Walker an extension of time to lodge his application and accordingly his general protections application is dismissed and an order to this effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

P. Walker and D. Walker for the Applicant.

S. Bell for the Respondent.

Hearing details:

2017.

Melbourne, by telephone link:

3 May.

1 [2011] FWAFB 975

2 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C

3 Ibid

4 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]

5 [2015] FWC 8885

6 Ibid at [29]

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