Paulo Viera v AWA Ltd

[2014] FWC 1048

[2014] FWC 1048

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paulo Viera
v
AWA Ltd
(U2013/15772)

DEPUTY PRESIDENT BOOTH SYDNEY, 13 FEBRUARY 2014

Termination of employment - application for unfair dismissal remedy - jurisdiction - multiple applications - application for extension of time.

[1] Mr Paulo Viera was employed by AWA Ltd in August 2010. On 13 September 2013 his employment was terminated. He was told in his letter of termination that his position was redundant “on the basis that we no longer require that position to be performed by anyone”. 1 Mr Viera disputes that his termination was due to genuine redundancy and on 11 October 2013 he made a General Protections application to the Fair Work Commission (the Commission). AWA Ltd objected that this application was out of time. A conference was held by the Commission on 31 October 2013 that did not resolve the dispute. He lodged an Unfair Dismissal application on 8 November 2013 and on 13 November 2013 he discontinued the General Protections application. AWA Ltd objected that this application could not be made because the Fair Work Act2009 (the Act) prevents multiple actions being made concerning the same dispute and should be dismissed because it was out of time or, if an extension of time was granted, because Mr Viera’s employment was terminated due to genuine redundancy.

[2] The matter came before me on 7 February 2014 and I asked the parties to make their submissions in three segments dealing first with the question of multiple applications, secondly, if necessary, the question of an extension of time and thirdly, if necessary, the question of genuine redundancy.

[3] Permission was granted for Mr Viera to be represented by Mr Baldwin, Special Counsel, Champion Legal and AWA Ltd by Mr Robinson, HWL Ebsworth Lawyers. Evidence was given by Mr Viera.

Multiple applications

[4] Mr Viera had not discontinued his General Protections application when he lodged his Unfair Dismissal application on 8 November 2013. He did not do so until 13 November 2013.

[5] Subdivision B Division 3 of the Act deals with preventing multiple applications in relation to dismissal and amongst other things means two applications cannot be on foot concurrently.

[6] The Explanatory Memorandum in respect to the Act reveals that it “is intended to prevent a person ‘double-dipping’ when they have multiple potential remedies relating to a dismissal from employment or seeking to limit this to a single remedy”. 2

[7] Section 725 of the Act is the general rule and reads as follows:

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.

[8] Section 727 concerns General Protections applications and reads as follows:

727 General protections FWC applications

(1) This section applies if:

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

(1A) This section also applies if:

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; and

(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and

(d) a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).

(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.

[9] Having initially raised an objection to Mr Viera’s application on this ground, Mr Robinson withdrew that objection having reviewed a decision of a Full Bench of the Commission dealing with the application of this subdivision to a similar circumstance.

[10] In the matter of ABC Transport Pty Ltd 3 a Full Bench dismissed an appeal against a decision at first instance by Kaufman SDP where he dismissed an objection to a General Protections application that had been made in relation to a dismissal that was already the subject of an application for an Unfair Dismissal remedy.

[11] In similar circumstances to the matter before me, the General Protections application had been made before the applicant discontinued (or in the words of the Act, withdrew) the Unfair Dismissal application. Although in this case the General Protections application preceded the Unfair Dismissal application the principal should be the same. In the matter before Kaufman SDP, as in the present matter, the first application was out of time. The Full Bench upheld the principle decided by Kaufman SDP that the applicant had not made an Unfair Dismissal application.

[12] Kaufmann SDP said at paragraph 11-14 of his decision: 4

“[11] I disagree. In my view, an application that is lodged out of time is not made unless and until Fair Work Australia allows a further period for the making of it. When an out of time ‘application for relief’ is lodged the only function that Fair Work Australia is empowered to perform is to determine whether time for the making of the application should be extended. If time is extended the application is made ‘within such further period as FWA allows under subsection (3)’ and the application is made within the time frame required by subsection (2). An application that is lodged within time is, however, made at the time of filing. A proper reading of section 394 (2) compels the conclusion that that is so.

[12] The making of the application must occur within 14 days after the dismissal or within such further period as Fair Work Australia allows. If neither of those requirements is fulfilled the application is not made.

[13] I do not accept the respondent's submission that regard to the overriding objective of section 725 of the Act - ‘to avoid the problems that arise from “double-dipping”’ - supports its contentions. That objective only arises where there have been two valid dismissal remedy applications made.

[14] As there was no unfair dismissal application made, section 725 is not triggered. The general protections application has been validly made.”

[13] The Full Bench said in paragraphs 12-13 of its decision:

“[12] The appellant contends that such a construction is inconsistent with the purpose of the provision, in the Project Blue Sky sense; primarily because it would allow the type of ‘double-dipping’ that the Act seeks to prevent. We do not agree. On a proper reading of the Act an employee who seeks to make an ‘out of time’ unfair dismissal may, if FWA has not allowed a further period for that application to be made, still file a general protections application. However, such an employee would then be barred by s.725 from seeking a further period for the making of the unfair dismissal application. The unfair dismissal application would effectively lapse (as long as the general protections application is not withdrawn or fails for want of jurisdiction). There would be no double dipping. On the other hand, if the appellant’s construction were to be accepted, an employee in the respondent’s situation could potentially be prevented from pursuing any application at all. The general protections application (even if made in time and otherwise validly) would be barred because of the prior attempt to make an out of time unfair dismissal application - even though FWA must refuse to allow a further period for the making of that application unless there are exceptional circumstances. This would be inconsistent with the object of the Act set out in s.3, particularly s.3(e):

‘enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms;’

[13] Senior Deputy President Kaufman made no error in his decision and accordingly the appeal is dismissed.

[14] Mr Robinson, submitted and Mr Baldwin agreed, that the effect of this decision was that the General Protections application had not been validly made since it was out of time and no extension of time in relation to it had been granted. This meant that Mr Viera’s Unfair Dismissal application could be made. I accepted this submission and advised the parties that I would hear Mr Viera's application for an extension of time before considering AWA Ltd’s objection to the application on the grounds of genuine redundancy as it would not be necessary to consider this objection if an extension of time was not granted.

Extension of time

[15] Section 394 of the Act provides that an application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows pursuant to s.394(3). The whole of s.394 is reproduced below:

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.

[16] Mr Baldwin accepted that Mr Viera has the onus to demonstrate that an exception to the time limit ought to be granted. The Act makes it clear that an extension of time may (my emphasis) be granted by the Commission if there are exceptional circumstances, that is, the judgement to be made is still the Commission’s to make.

[17] McHugh J’s decision in the High Court judgement in Brisbane South Regional Health Authority v Taylor (Brisbane South Regional Health Authority case) 5 in an appeal against a judgement in the Court of Appeal of Queensland that had allowed an appeal against a decision of the District Court of Queensland to refuse an extension of time in which to commence an action makes the point clearly. He says at page 554:

“Those facts enliven the exercise of the discretion, but they do not compel its exercise in favour of the applicant. Without them, the applicant has no right to call for the discretion to be exercised in his or her favour. Proof of them does not give the applicant a presumptive right to the exercise of the discretion.”

[18] So it is in this jurisdiction. There are certain matters set out in s.394(3)(a) to (f) that I must take into account in determining whether I am satisfied that there are exceptional circumstances, however I must then apply my discretion as to whether an extension of time should be granted. In the words of McHugh J in the Brisbane South Regional Health Authority case I must decide whether “justice will be best served by excepting the particular proceedings from the general prohibition”.

[19] Mr Viera was dismissed on 13 September 2013 and lodged his application for an unfair dismissal remedy on 8 November 2013, on day 56 after his dismissal or 35 days out of time. To have been within time Mr Viera would have had to have lodged his application on 4 October 2013. A significant portion of the 35 days that the application was out of time is accounted for by the fact that the General Protections application was made and progressed to the point of a conference on 31 October 2013. However, the General Protections application was lodged on 11 October 2013, late by 7 days.

[20] Mr Baldwin and Mr Robinson agreed that the period of time I should focus on in considering Mr Viera’s reasons for his late application was this period, because even if the period associated with the conduct of the General Protections application were discounted, it was this delay that put the Unfair Dismissal application out of time. Mr Baldwin described this as the “initial period”.

Reasons for initial period of delay

[21] A number of reasons for late lodgement had been advanced in various communications that found their way onto the Commission file in this matter. However, it was Mr Viera’s evidence in the proceedings before me that I consider contained the reasons he relied upon for my consideration of his application.

[22] Mr Viera’s evidence was to the effect that:

• He was aware of correspondence of 27 August 2013 from AWA Ltd concerning “Notification about workplace change” addressed to him but sent to his trade union, the Electrical Trades Union, NSW Branch



• He consulted his trade union and he was aware that his trade union said they would obtain legal advice



• He attended a meeting with AWA Ltd along with a trade union official, Mr Buttigieg, on 13 September 2013



• He received a letter of termination on 13 September 2013



• He was not certain that he was dismissed until his last day of work, he thought 16 September 2013 (but later accepted 17 September 2013) as he was hoping the decision could be reversed



• He is divorced and has access to his 14 year old son for half of the school holiday period. He loves his son very much and he values the time he spends with him enormously. At the relevant time, the week he was granted access was the first week of the school holidays. It was put by Mr Robinson that the third term school holidays commenced on 20 September 2013. It was not known during the proceedings what day of the week this was, however, I have since ascertained that this was a Friday. The first day of the school holiday period was therefore 21 September 2013. His evidence was that he collected his son and drove to the central coast. He thought this was likely to have been on the weekend, which I have ascertained by consulting the 2013 calendar, was 21-22 September 2013



• He made one phone call to the law firm that had acted for him in his family court matter before the holiday and one during the holiday



• He spoke to Mr Baldwin on the phone once during his holiday and on a number of occasions after his holiday and met with him on or after 4 October 2013, the last day for making an in-time application



• He was aware of the 21 day time limit in making an application to the Commission and because of his family court proceeding he knew time limits were important. However, he believed that the time period commenced from the last day of employment which he thought was 16 September 2013. He was aware when he met Mr Baldwin that the time period for making the application had lapsed



• He regards his law firm as responsible for the delay in making the General Protections application.

[23] I accept that Mr Viera may have been preoccupied with his son in the period immediately following his dismissal and that the law firm was tardy in returning his calls and arranging to take instructions from him. However, he took the opportunity to contact the law firm that had acted for him in his family court proceedings both before and after going on school holidays with his son. He knew that there was a time limit on an application to the Commission, albeit not exactly when it would run out. However, even if it had run from 16 September 2013 his application would not have been lodged in time. The fact remains that he did not make an application in time nor insist that his lawyer make an application in time. The circumstances do not reflect well on the law firm, however, this is not a case of representative error where the matter was out of the control of the applicant. I think Mr Viera was in command of his own actions in exceeding the time limit. This circumstance is not exceptional nor “out of the ordinary course, or unusual, or special or uncommon” to use the words of the Full Bench of Fair Work Australia, the predecessor to the Commission, in Cheyne Leanne Nulty v Blue Star Group Pty Ltd. 6

Reasons for balance of the delay

[24] The period between the making of the General Protections application, 11 October 2013 and the making of the Unfair Dismissal application, 13 November 2013 was accounted for by the progress of the General Protections application up to the date of the Commission conducting a conference on 31 October 2013 and the time it took for Mr Viera and his legal representative, Mr Baldwin, to decide to make an Unfair Dismissal application and act on that decision.

[25] There is no reason put forward for the delay occasioned by the conduct of the General Protections application that could be described as exceptional. It was a conscious choice made by Mr Viera. He made the Unfair Dismissal application because he and his legal representative formed the view, in effect, that the General Protections application had no reasonable prospects of success. Mr Robinson points out, and I accept, that this conclusion was open to Mr Viera earlier than the conduct of the conference. This fortifies my view that Mr Viera made his own choices in the conduct of the matter. The conclusion that making another application is not of itself an exceptional circumstance that warrants an extension of time is consistent with the decision of the Full Bench in George Przedpelski v Trustee of Czapp Pty Ltd t/a Airport Doors 7 where similar circumstances existed.

Other factors

[26] I accept that Mr Viera was hoping for a different outcome to the notification about workplace change that he received on 27 August 2013, however, his evidence makes it clear that he received the letter of termination on 13 September 2013 and by 17 September 2013 he was aware he had been dismissed. There is nothing in this circumstance that weighs in favour of an extension of time pursuant to s.394(3)(b) of the Act. The action Mr Viera took to dispute his dismissal was to contact the law firm after 17 September 2013 and I regard s.394(3)(c) as neutral in deciding whether or not an extension of time should be granted.

[27] AWA Ltd contends that they would be prejudiced by an application proceeding five months after Mr Viera was dismissed and complain that they have already expended time and resources on the General Protections application. However, notwithstanding the time period, AWA Ltd is a large company and it is unlikely that information required to defend the case has deteriorated. I must consider the prejudice of conducting the case arising from the Unfair Dismissal application rather than the General Protection application and I do not think that AWA Ltd would suffer any hardship other than that usually associated with the conduct of an unfair dismissal case.

[28] Pursuant to s.394(3)(e) I am required to consider the merits of the case. Neither Mr Baldwin nor Mr Robinson addressed the merits of the genuine redundancy defence or the merits of the unfair dismissal case at any length. On the submissions and evidence before me I conclude that there is some merit to AWA Ltd’s case in relation to the genuine redundancy defence. However, this defence is not without complexity and I cannot form a view about the merit of Mr Viera’s response nor his substantive case should the genuine redundancy defence not be available to AWA Ltd. In these circumstances I regard s.394(3)(e) as neutral in deciding whether or not an extension of time should be granted.

[29] There is no other person or persons in a similar position so s.394(3)(f) is not relevant to this matter.

Conclusion

[30] Taking into account all the circumstances of this case and considering the matters I am required to take into account pursuant to s.394(3)(a) to (f) of the Act, I have decided against granting Mr Viera an extension of time in relation to his application. His application is dismissed. An order will issue with this decision.

DEPUTY PRESIDENT

Appearances:

G Baldwin, Champion Legal for Mr Paulo Viera

J Robinson, HWL Ebsworth Lawyers for AWA Ltd

Hearing details:

2014.

Sydney:

February 7.

 1   Respondent’s Outline of Submissions - Objection to Application for Unfair Dismissal Remedy - Annexure G

 2   Fair Work Bill 2008 - Explanatory Memorandum

 3   [2012] FWAFB 3212

 4   [2012] FWA 101

 5 (1996) 186 CLR 441

 6   [2011] FWAFB 975

 7   [2012] FWAFB 8577

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