Rob McKinna v Kkeymakers (Australia) Pty Ltd t/a Kkeymakers Steel Fabrications

[2014] FWC 5369

[2014] FWC 5369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rob McKinna
v
Kkeymakers (Australia) Pty Ltd t/a Kkeymakers Steel Fabrications
(U2014/8072)

COMMISSIONER CRIBB MELBOURNE, 8 AUGUST 2014

Application for relief from unfair dismissal - jurisdiction - extension of time.

[1] Mr Rob McKinna (the applicant) has made an application under section 394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy in respect of his dismissal by Kkeymakers (Australia) Pty Ltd t/a Kkeymakers Steel Fabrications (the respondent, the company).

[2] The company has raised a jurisdictional objection on the basis that Mr McKinna’s application was lodged outside the statutory timeframe by 11 days. Mr McKinna was dismissed on 26 May 2014 and his application was lodged on his behalf on 27 June 2014.

[3] Directions were issued to both parties in relation to the filing of material ahead of a hearing of the applicant’s extension of time application. This was scheduled for Friday 8 August 2014. The company advised the Fair Work Commission (the Commission) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the union), Mr McKinna’s representative, that it did not wish to file any material and requested to be excused from attendance at the hearing. In light of this, it was agreed that the Commission would deal with the extension of time application on the papers.

[4] This decision concerns the extension of time application of Mr McKinna. As the company did not wish to file any documentation, the only material before me is that filed by the AMWU in accordance with the Commission’s directions.

1. Legislative framework

[5] Section 394(3) of the Act empowers the Commission to allow a further period of time for an application to be validly made, as set out below:

“(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.”

[6] I will deal with each of the considerations set out in s.394(3) in turn.

Section 394(3)(a) - reasons for the delay

[7] Mr McKenna’s evidence was that:

• Shortly after he was dismissed (on 26 May 2014), he contacted the AMWU and spoke to Mr Perrin, an organiser. Mr Perrin had said that he would look at running an unfair dismissal case and would refer the matter on. 1



• On Tuesday 10 June 2014, he received a call from Mr Terzic, an AMWU Industrial Officer. Mr Terzic spoke to him about his case and said he would lodge an unfair dismissal claim with the Commission. He was told by Mr Terzic that the next step would be conciliation in about a month and that he would hear from him. 2



• Later on 10 June 2014, he received an email from Mr Terzic. He understood that, unless he objected to what Mr Terzic had put together, his claim would be lodged by 2.00pm the next day. He therefore assumed that all was in hand. 3



• He then received an email from Mr Terzic on 27 June 2014, apologising for failing to lodge his unfair dismissal claim. 4

[8] Mr Terzic’s evidence was that:

• He is employed as one of three Industrial Officers with the AMWU Victorian Branch. 5



• For a large number of the matters that are handled, timeframes apply. Despite the considerable workload, most of the time, the Industrial Office meets the applicable deadlines. 6



• The Industrial Office takes a good deal of care to ensure that the deadlines for unfair dismissal applications are met. Lateness, due to the Industrial Office, would occur in one out of 250 - 300 cases. 7



• Mr Perrin was the organiser who first dealt with Mr McKinna. Due to Mr Perrin’s personal circumstances at the time, he did not ask Mr Perrin for a statement of events as far as he was aware of them. 8



• He was, however, given an internal Branch form to get the unfair dismissal application together on about 4 June 2014. 9



• He integrated the form into his workload and was conscious of the fact that the application needed to be lodged by mid June 2014. 10



• He interviewed Mr McKinna over the telephone on Tuesday 10 June 2014. He concluded the call on the basis that he would type up the application and email it to Mr McKinna for him to check. He also told Mr McKinna about the process and that there would be a telephone conciliation in about a month. When the date was known, someone would be in touch to make the necessary arrangements. 11



• Later that day, he emailed the draft application to Mr McKinna. The covering email said that the union would run with this application unless he wanted specific changes. At any rate, the application would be lodged by 2.00pm the next day. He had copied in the Industrial Office which meant that everyone was copied in. 12



• On 11 June 2014, Ms Spindler came into work whilst Ms Koh was still away. As he had been the only one in the office the previous day, he had a backlog of work to catch up on. This resulted in him firing off multiple orders to Ms Spindler to attend to a number of things. 13



• Prior to 2.00pm on 11 June 2014, he recalled saying to Ms Spindler to keep an eye on Mr McKinna’s application. Ms Spindler does not have such a recollection. 14



• Mr McKinna’s case fell off his radar until, on 27 June 2014, he received an email from Ms Koh about the application. Ms Koh came to his office and told him that Mr McKinna’s application had not been lodged on 11 June 2014 as he had expected. He instructed Ms Koh to lodge it and that he would explain the reasons for the late lodgement to the Commission. 15



• Ms Koh lodged the application about 45 minutes later and he then sent an email to Mr McKinna explaining what had happened. 16

[9] It was submitted by the union that Mr McKinna had every reason to believe that his application for an unfair dismissal remedy had been lodged previously and within time. 17 The union also argued that this was not a situation where the applicant had failed to follow things up. The period during which Mr McKenna waited was said to be well within the timeframe that he had been advised by the union.18

[10] The union freely admits that it is to blame for the delay in lodging Mr McKinna’s application. This was due to a breakdown in communication between Mr Terzic and Ms Spindler regarding lodging the application on 11 June 2014, Mr Terzic being the only one in the Industrial Office on 10 June 2014 and the resultant workload and Mr Terzic’s failure to check on the application after 11 June 2014. 19

[11] As the union’s Victorian Industrial Office was said to usually be reliable in meeting filing deadlines, this occasion of lateness was stated to represent exceptional circumstances. Further, it was submitted that the AMWU’s mishandling of the application constitutes representative error. The Full Bench decision in Clark v Ringwood Private Hospital 20 was referred to in this regard.21

[12] Having considered the witness statements of Mr McKinna and Mr Terzic, I am satisfied that the reasons for the delay are attributable to uncharacteristic administrative and communication failures with the Industrial Office of the AMWU Victorian Branch. The applicant has not contributed to the delay as he was advised that the conciliation conference would be in about a month and the application was actually lodged within that period.

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

[13] It was submitted by the union that Mr McKinna was aware of his dismissal when it happened. This consideration was said, therefore, not to advance the applicant’s case. 22

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

[14] It was Mr McKinna’s evidence that:

• At the time of his dismissal he had tried to put up a case in his defence but the General Manager would not let him discuss the situation. 23



• Shortly after he was dismissed, he contacted the AMWU for assistance. 24

[15] As this is the only evidence before me, I accept that Mr McKinna disputed the position put by the company about his lateness at the time he was being dismissed. Soon after his dismissal, Mr McKinna sought help from his union about his dismissal.

Section 394(3)(d) - prejudice to the employer

[16] It was argued by the AMWU that it is difficult to imagine any prejudice to the employer beyond the work required to defend the application. The delay of 11 days was said to not be excessive in the context of the usual length of the determinative process. 25

[17] On the basis of the submissions before me, I find that there is no additional prejudice to the company other than the usual prejudice which accompanies any granting of an extension of time.

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

[18] Mr McKinna’s evidence was that:

• His problems began when Ms Fujihara began to take a prominent role in the company as he and Ms Fujihara clashed. 26



• He received a warning regarding his manner on 1 May 2014. He had found this bewildering because he thought it was Ms Fujihara who had the abrasive manner. He had stood up to her badgering him but only when her criticisms where misplaced or unfounded. 27



• As a result of the warning, he was told to read then re-read the company’s code of conduct. This had taken place over a full day whilst he was confined to an office. 28



• In May 2014, he had problems with his hearing. This resulted in him being late for work, by 15 minutes, for an overtime shift on 19 May 2014. His supervisor was not concerned but Ms Fujihara had berated him and said that he was not to be offered any more overtime. 29



• On Thursday 22 May 2014, he telephoned work at 7.20am and advised that he would not be coming in. He went to the doctor who diagnosed stress and was given a medical certificate for two days. On Friday 23 May 2014, he called work again, at 8.00am, and said that he would not be coming into work. 30



• When he returned to work on Monday 26 May 2014 he was called into a meeting with the General Manager. He was told that he was being dismissed for calling in too late the previous Thursday and Friday. He tried to argue his case but Mr Hawkins would not entertain any discussion. He was given a warning regarding the dismissal issues. 31

[19] It was submitted by the AMWU that the dismissal was for conduct that was not serious. The dismissal was described as being precipitated by Mr McKinna’s lateness and failure to notify absences in a timely manner in the final week of his employment. 32 The union contended that the three transgressions relied on by the respondent do not justify dismissal.33

[20] As indicated earlier, the respondent made the decision to not file any submissions. In the circumstances, I am satisfied that Mr McKinna’s case is not without merit.

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

[21] The union argued that the comparator should be other AMWU members whose applications were dealt with by the AMWU’s Victorian Industrial Office. It was stated that the evidence shows that the vast majority of members have their cases lodged on time. Therefore, it was contended that it would be manifestly unfair if Mr McKinna is denied a valid application due to the AMWU’s errors. 34

[22] Having considered the union’s submissions, it is accepted that it would be unfair to Mr McKinna if the union’s error resulted in non acceptance of his application compared with the other AMWU’s members whose applications were lodged within time by the union.

Section 394(3) - are there exceptional circumstances?

[23] It was submitted by the union that exceptional circumstances exist in this case. This is on the basis that the AMWU’s mishandling of the application constitutes representative error and that it, together with the other factors, meet the test of exceptional circumstances.

[24] The respondent did not make any submissions on this or the other matters.

[25] The meaning of exceptional circumstances and the relevance of representative error in determining whether exceptional circumstances exist has been considered by Full Benches of the Commission in relation to s.366(2) of the Act which is in similar terms to s.394(3) of the Act.

[26] In Nulty v Blue Star Group Pty Ltd 35the Full Bench set out extracts from various authorities in which the meaning of ‘exceptional circumstances’ had been considered and stated:

[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. 36

[27] In Robinson v Interstate Transport Pty Ltd, 37 the Full Bench held that representative error, in circumstances where the Applicant was blameless, would constitute exceptional circumstances under s.366(2) of the Act, subject to consideration of the matters specified in ss.366(2)(b) to (e) of the Act.38 The Full Bench held that the approach enunciated in Clark v Ringwood Private Hospital39regarding representative error in the context of a decision to extend time, whilst made under previous legislation, continued to provide appropriate guidance under s.366(2). The Full Bench set out an extract of a summary of that approach from another Full Bench decision:40

[25] The approach in Clark’s Case was summarised in Davidson’s Case as follows:

“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(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 exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout 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.”

[28] The reason for the delay in the filing of Mr McKinna’s application for an unfair dismissal remedy is representative error ie. an error on the part of the AMWU’s Victorian Branch Industrial Office.

[29] I am satisfied that the circumstances surrounding the representative error are out of the ordinary course, unusual or special and are therefore exceptional. It is unusual for the Victorian Industrial Office of the union to lodge an application out of time. Mr Terzic’s statement that one out of every 250 - 300 applications is lodged late due to the fault of the union, is accepted. The situation, as described, indicated that Mr McKinna was blameless as the error was discovered during the period when Mr McKinna was informed that nothing further would be happening.

[30] Having regard to these factors and, taking into account the evidence and findings in relation to each of the matters specified in section 394(3) of the Act, I find that there are exceptional circumstances such that I should exercise my discretion and grant an extension of time.

[31] Accordingly, Mr McKinna’s application for an extension of time is granted. The date for lodgement is extended to 27 June 2014. An order 41 to this effect will be issued separately.

[32] The application will be referred for conciliation.

 1   Statement of Rob McKenna, dated 16 July 2014, at paragraph 18

 2   Ibid at paragraph 19

 3   Ibid at paragraph 20

 4   Ibid at paragraph 21

 5   Statement of Barry Joseph Terzic, dated 15 July 2014, at paragraphs 1 - 2

 6   Ibid at paragraph 6

 7   Ibid at paragraphs 7 - 8

 8   Ibid at paragraph 10

 9   Ibid at paragraph 11 and at Attachment A

 10   Ibid at paragraph 12

 11   Ibid at paragraphs 14 - 16

 12   Ibid at paragraphs 19 - 20 and Attachment C

 13   Ibid at paragraph 21

 14   Ibid at paragraph 22

 15   Ibid at paragraphs 23 - 24 and Attachment D

 16   Ibid at paragraph 25

 17   Submission in support of an extension of time, AMWU, dated 18 July 2014, at paragraph 10

 18   Ibid at paragraph 11

 19   Ibid at paragraphs 12 - 13

 20   (1997) Print P5279

 21   Submission in support of an extension of time, AMWU, dated 18 July 2014, at paragraphs 14 - 16

 22   Ibid at paragraph 18

 23   Statement of Rob McKenna, dated 16 July 2014, at paragraph 16

 24   Ibid at paragraph 17

 25   Submission in support of an extension of time, AMWU, dated 18 July 2014, at paragraphs 20 - 21

 26   Statement of Rob McKenna, dated 16 July 2014, at paragraphs 6 - 7

 27   Ibid at paragraph 8

 28   Ibid at paragraph 9

 29   Ibid at paragraphs 10 - 11

 30   Ibid at paragraphs 12 - 14

 31   Ibid at paragraphs 15 - 17

 32   Submission in support of an extension of time, AMWU, dated 18 July 2014, at paragraph 23

 33   Ibid at paragraphs 24 - 25

 34   Ibid at paragraph 26

 35   [2011] FWAFB 975

 36   Ibid at [13]

 37   [2011] FWAFB 2728

 38   Ibid at [24]

 39 (1997) 74 IR 413

 40   Davidson v Aboriginal & Islander Child Care Agency, PRQ0784

 41   PR554039

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