Phillip Pigram v Water Corporation
[2022] FWC 672
| [2022] FWC 672 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Phillip Pigram
v
Water Corporation
(U2022/2179)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 31 MARCH 2022 |
Application for an unfair dismissal remedy – out of time – dismissed
Mr Pigram (Applicant) applied for an unfair dismissal remedy having been dismissed from Water Corporation (Respondent) on 18 February 2022. The Respondent objected to the application on the basis that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with that objection.
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 preliminary matters are not presently relevant.
It is not contested that the unfair dismissal application was made out of time. For the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 394(3) 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]
The issue before me is whether the circumstances are exceptional, and whether it is fair and equitable for an extension to be granted.
Background
The Applicant was employed by Water Corporation in the role of Senior Operator in the Northwest Region of Western Australia.
Water Corporation is the principal supplier of water, wastewater and drainage services throughout Western Australia and is contracted to provide services at various sites.
According to the Respondent, the Applicant’s employment was terminated with immediate effect on 14 January 2022, because he did not:
a)comply with the requirement to be vaccinated against COVID-19 under the Critical Infrastructure Worker (Restrictions on Access) Directions (the Directions); and
b)follow a lawful and reasonable instruction of Water Corporation to be vaccinated in accordance with the Directions.
The consequence of this, said the Respondent, was that the Applicant was unable to perform the inherent requirements of his role.
For his part, the Applicant states that he was notified of his dismissal on 14 January 2022, and it came into effect on 14 January 2022.
As to why his unfair dismissal application was 14 days late, the Applicant provided the following explanation.
The Applicant said that his lateness was due to him making a mistake of fact regarding jurisdiction. He said that on 26 January 2022, he called a work colleague to see if he had a copy of the current enterprise agreement. His colleague confirmed that he had a copy and sent it to the Applicant on that same day. The Applicant said that after more research on the Fair Work Commission website and the Western Australian Industrial Relations Commission (WAIRC) website, he remained unsure where to lodge his claim.
The Applicant stated that on 1 February 2022, he called Wageline at 14:43hrs to see if they could help. The Applicant noted that he spoke to a lady whose name he failed to write down. Having explained to the lady the information he was seeking, he gave her Water Corporation’s ‘ABN’, and she purportedly informed the Applicant that it was a state government entity, which led him to believe he should lodge his claim with WAIRC.
According to the Applicant, he lodged a Form 2 Unfair Dismissal Claim with WAIRC on the 11 February 2022 and on 14 February 2022 received a phone call and email from WAIRC, saying that he may be federal system employee. The Applicant reported that the WAIRC provided information on other bodies to seek advice from. The Applicant stated he then conducted further research to be sure of the correct jurisdiction and lodged his claim with the Commission on 18 February 2022.
It is uncontroversial that the for the Applicant to have lodged his unfair dismissal application in time it needed to be made by 4 February 2022.
Consideration
There is discretion to extend the 21-day period set by the Act for making an application for an unfair dismissal remedy. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[2]
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty),[3] the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains a discretion to grant or refuse an extension of time.[4] Whilst Nulty considered the general protection provisions of the Act, its reasoning is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench 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.[5] 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.[6]
In the recent decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[7] the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:
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.[8]
In the directions issued to the parties both were referred to s 394(3) of the Act.
Reasons for the delay in filing the application
Consideration turns to whether the Applicant has provided a credible reason for the whole of the period that his application was delayed.[9] The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.[10] It does not include the period from the date of the dismissal to the end of the 21-day period. The circumstances from the time of the dismissal, however, 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.[11]
Representative error
The Applicant gave evidence that he had been informed by Wageline that Water Corporation was a state entity, which had led him to believe that the WAIRC was the correct jurisdiction in which to lodge his application.
Whilst Wageline is not a lawyer or paid agent, guidance can be gleaned from those authorities where representative error has factored in the unfair dismissal application being lodged late. In those cases, it is accepted that the conduct of the applicant is to be examined.[12] In Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service,[13] a Full Bench decision that considered an out of time application under s 365 of the Act, but is apposite for present purposes, the majority stated:
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.”.[14]
The Applicant has argued that his application was filed late with the Commission, due to issues in establishing the correct jurisdiction for an employee of Water Corporation. The Applicant submitted that the initial advice he received indicated he was employed by a state entity, and therefore he initially pursued his claim within the framework required by law for the WAIRC.
While the Applicant asserts having been advised he was employed by a state entity, the evidence to support this proposition is solely premised on the Applicant’s assertion and an invoice log evincing his telephone call to Wageline. The invoice log shows a telephone call of 298 seconds in duration purportedly to Wageline on 1 February 2022. I do not doubt that the Applicant called Wageline, however the direct evidence does not illuminate the advice imparted to the Applicant by Wageline or the instructions or information the Applicant provided to the service.
Further, while the Applicant stated he received advice from Wageline on 1 February 2022, he did not make an unfair dismissal application in the WAIRC until 11 February 2022. In respect of the period between 1 February 2022 and 11 February 2022, it appears that the Applicant had again been researching the jurisdiction in which to make his application. In his statutory declaration to the WAIRC, the Applicant acknowledged that Wageline had qualified they were unable to provide legal advice, and that he had been researching the issue of jurisdiction.
The Applicant clearly received advice from the WAIRC on 14 February 2022 that he was likely a national system employee. The WAIRC referred to the Applicant being covered by an enterprise agreement made in the federal jurisdiction. However, it was not until 18 February 2022, that the Applicant made his unfair dismissal application in the Commission. Again, the Applicant notes that he was researching the jurisdictional issue in this period.
There are several observations to make at this point. Clearly, the Applicant was able to identify who employed him. Further, on 26 January 2021, the Applicant received a copy of the enterprise agreement that covered him whilst employed (Water Corporation Enterprise Agreement 2021[15]). That Agreement makes specific reference to the Fair Work Commission at clause 2.
Additionally, it is evident from the evidence of Ms Posa, Manager People & Employment Relations of Water Corporation, that the Applicant was employed at a time where two enterprise agreements were negotiated and voted up (one being the Water Corporation Enterprise Agreement 2021 (Agreement)). Correspondence issued to the Applicant at the time of negotiating the enterprise agreements, voting them up and the results of the vote, referred to the ‘Fair Work Act 2009 (Cth)’ and the ‘Fair Work Commission’.
The Applicant had effectively been informed multiple times that he was covered by a federal enterprise agreement. Notwithstanding, there is no evidence that he raised this point with Wageline or considered the point further regarding the lodgement of an unfair dismissal application in the Fair Work Commission – which was open for him to do.
There was information before the Applicant whilst employed and after his dismissal, to suggest that the Fair Work Commission was the relevant jurisdiction. I consider that it would have proved unproblematic for the Applicant to have checked the document that governed the terms and conditions of his employment. That same document, the Agreement, which can be located on the Fair Work Commission website, refers to the Act, the Commission and to the National Employment Standards - all of which are indicators that the Commission would likely have been the first port of call. However, it must again be reiterated that while indicative of a first port of call – such indicators are not determinative in and of themselves, of jurisdiction.
It has previously been expressed by this Commission that there is nothing exceptional about lodging an unfair dismissal application in the WAIRC when the application should have been lodged in the Commission.[16] However, the proposition should not be read as a carte blanche statement that all applications mistakenly lodged in the WAIRC are by their nature unexceptional. Much will turn on the facts of the matter, as was the case cited to me by the Respondent.[17]
The Applicant delayed making the application in the WAIRC, in part, because he was contemplating whether it was the correct jurisdiction in which to make that application. The application filed in the WAIRC was filed outside of the statutory period set by Act for filing unfair dismissal claims in the Fair Work Commission.
Furthermore, while the Applicant appeared to have made attempts to clarify the correct jurisdiction for an unfair dismissal application, there is no evidence of the Applicant having actually contacted the Commission for guidance or even the WAIRC. I have also considered that when notified by the WAIRC that the claim or application had been brought in the wrong jurisdiction, the Applicant waited yet another three to four days to file the relevant application with this Commission. He did not act promptly.
As the Deputy President stated in Welthy v J Factor Holdings Pty Ltd t/as South Beach Hotel,[18] ‘[I]t is not unusual for employees in Western Australia to confuse the WAIRC and Fair Work Commission’.[19] In short, it was not reasonable for the Applicant to wait until the issue of the WAIRC’s jurisdiction was addressed by the WAIRC before he lodged this application. Further, I do not consider he had a reasonable explanation for the delay after this date. The unfair dismissal forms are not complex and do not require such a significant period in which to complete them. I am therefore not satisfied that the Applicant had a reasonable explanation for the whole of the delay.
I have considered the delay as the period beyond the 21-day period. However, regard has been had to the circumstances from the date the dismissal took effect. As noted, I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the whole period of the delay in lodging his unfair dismissal application. This weighs against a finding that there are exceptional circumstances.
Whether the Applicant became aware of the dismissal after it took effect
At all material times from the time the Applicant was dismissed until the date the unfair dismissal application was made, the Applicant knew he had been dismissed. I consider this to be a neutral factor.
Action taken to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[20] I have considered all the evidence in this respect, including the lodgement of the unfair dismissal application in the WAIRC.
The Applicant engaged with Water Corporation in relation to its consideration of terminating his employment. However, the Applicant took no steps to dispute the dismissal after it took effect until he filed his unfair dismissal application with the WAIRC.
Having considered the evidence and submissions of the Applicant and Respondent, I consider it to be a neutral factor.
Prejudice to the employer
I cannot identify any particular prejudice that the Respondent would accrue if an extension of time were to be granted, and quiet correctly the Respondent makes that concession. I therefore consider this to be a neutral factor in the present case.
Merits of the application
The nature of the matter is such that consideration must be given to whether the application was made within the time period required in s 394(2) and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.
In Kornicki v Telstra-Network Technology Group, [21] 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:
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.[22]
Concerning the substantive application, the merits have not been fully tested. This is not out of the ordinary. 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 the applicant to lodge his application.[23] The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded. It follows that I consider this criterion to be neutral.
However, it is observed that the Respondent would appear to have a valid reason for the Applicant’s dismissal. That reason being an inability for the Applicant to meet the inherent requirements of his position. Furthermore, if the evidence led by the Respondent in the witness statement of Ms Posa held up under scrutiny, then a consideration of the other factors considered under s 387 of the Act, would likely lead to a conclusion that the Applicant had not been unfairly dismissed.
Fairness between the person and other persons in a similar position
The Deputy President in Morphett v Pearcedale Egg Farm,[24] considered this criterion and 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.[25]
I am satisfied that the issue of fairness as between the Applicant and other persons in a similar position is not a relevant consideration in the circumstances of this particular matter, and is therefore a neutral factor in determining whether to grant an extension of time.
Conclusion
I am not satisfied that there are exceptional circumstances. I do not consider that the Applicant’s case is strong so as to outweigh his lack of a reasonable explanation for the delay in lodging his unfair dismissal application. All other factors are neutral.
Consideration also turns to whether it is fair and equitable that time should be extended. I have concluded this not to be the case in light of my above findings. Accordingly, I decline to grant the Applicant an extension of time and therefore his application for an unfair dismissal remedy must be dismissed. An Order[26] to that effect issues concurrently.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] Fair Work Act 2009 (Cth) s 394(3).
[2] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989 [20].
[3] [2011] FWAFB 975 (Nulty)..
[4] Ibid [15].
[5] Ibid [13].
[6] Ibid.
[7] [2018] FWCFB 901.
[8] Ibid [38].
[9] Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 408-9.
[10] Biliana Henderson v Hoban Recruitment Pty Ltd T/A HOBAN Recruitment[2016] FWC 5041, [10].
[11] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB, 349 [29] – [31].
[12] Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service[2011] FWAFB 466.
[13] Ibid.
[14] Ibid [35].
[15] AE511338; PR729361.
[16] Ms Tomica Robertson v Zeugma Electrical & Communication Services Pty Ltd[2010] FWA 4525, [12].
[17] Ibid.
[18] [2016] FWC 1978.
[19] Ibid [15].
[20] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[21] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[22] Ibid.
[23] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Ms Kristen Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899.
[24] [2015] FWC 8885.
[25] Ibid [29].
[26] PR739707.
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