Robert Danby v DLW Health Services Pty Ltd T/A Essendon Aged Care and Footscray Aged Care
[2011] FWA 7430
•7 NOVEMBER 2011
[2011] FWA 7430 |
|
DECISION |
Fair Work Act 2009
s.365—General protections
Robert Danby
v
DLW Health Services Pty Ltd T/A Essendon Aged Care and Footscray Aged Care
(C2011/4981)
COMMISSIONER GOOLEY | MELBOURNE, 7 NOVEMBER 2011 |
Application to deal with contraventions involving dismissal.
[1] On 1 July 2011 Mr Robert Danby made an application pursuant to section 365 of the Fair Work Act 2009 (the Act) for Fair Work Australia to deal with a general protections dispute.
[2] Mr Danby named as the respondent to that application his employer DLW Health Services Pty Ltd (DLW) alleging that his employer had terminated his employment in contravention of section 340(1) of the Act.
[3] Mr Danby’s employment with DLW ended on or around 6 May 2011. Mr Danby’s application against his employer was made within 60 days and the application was referred to conciliation on 26 August 2011.
[4] On 29 August 2011 Mr Danby filed an application for an extension of time to add additional respondents to the application lodged on 1 July 2011. The effect of the amendment is to add as respondents to the proceedings Mr Trevor Weir and Mr Peter Lane who are directors of DLW.
[5] It is not contested that the application in respect of Mr Weir and Mr Lane is out of time and that an extension of time is required to lodge a general protections claim against them.
[6] The application was listed for an extension of time hearing on 6 October 2011.
[7] Mr Jack Tracey of Counsel appeared with permission for Mr Danby and Mr Anthony Massaro a legal practitioner appeared with permission for Mr Weir and Mr Lane.
[8] Mr Danby gave evidence on his own behalf and was cross examined.
Evidence of the Applicant
[9] Mr Danby gave evidence that he is a company director of DLW 1 and prior to May 2011 he was also employed as a general manager.2 He was represented by Harmers Workplace Lawyers from May 2010 who were dealing with his dispute with his employer3 over his remuneration as general manager and other matters. The letter of termination dated 3 May 2011 advised that Mr Danby’s position as general manager was redundant. Mr Danby claimed the redundancy was not genuine.
[10] Mr Danby gave evidence that prior to the termination of his employment his lawyers reminded the employer’s representatives “of adverse actions” and that some of those adverse actions were occurring prior to the redundancy taking place.” 4
[11] Mr Danby gave evidence that from December 2010 there had been open, and without prejudice, correspondence directed at settling his dispute with his employer and fellow directors. 5
[12] Mr Danby gave evidence that his lawyers advised him that he had 60 days in which to lodge a general protections application. 6 It was his evidence that at his conference with Mr Tracey held just prior to the conciliation conference held on 26 August 2011, he was given advice to add Mr Weir and Mr Lane as respondents to the proceedings.7 It was his evidence that this was not considered prior to this date and that he was guided by his legal representatives.8
[13] In cross examination Mr Danby admitted that he was aware of the concept of adverse action prior to the termination of his employment but he was not sure of what it was. It was his evidence that his lawyers told him that some of the things that were happening to him could be adverse action. 9
[14] Mr Danby acknowledged that, in a letter of 13 May 2011 from his lawyers to DLW, his lawyers advised DLW that its conduct contravened the Act and that Mr Danby was considering an adverse action claim. Mr Danby put DLW, Mr Lane and Mr Weir on notice that he reserved his right to bring proceedings against them. 10
[15] Section 366 of the Act provides as follows:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
(a) the reason for the delay
[16] Mr Tracey submitted that the reason for the delay was representative error in that Mr Danby’s lawyers inadvertently failed to include Mr Lane and Mr Weir as respondents. They did not advise him that he could bring a general protections claim against Mr Lane or Mr Weir.
[17] There was no evidence from Mr Danby’s lawyers to this effect. At its highest, the evidence of Mr Danby was that when he met with Mr Tracey prior to the conciliation Mr Tracey advised that Mr Weir and Mr Lane should be added as respondents.
[18] It was submitted that Mr Danby delayed lodging the application against DLW until near the end of the 60 day time limit because “there was quite a degree of correspondence that would indicate things were approaching resolution.” 11 As Mr Tracey submitted, this delay was because Mr Danby would rather settle than come to the tribunal or to court.”12
[19] It appears that Mr Danby chose not to bring his claim against DWL until the last minute as he had hoped to avoid instituting legal proceedings. He therefore did not obtain the opinion of Mr Tracey about bringing proceedings against Mr Weir and Mr Lane until the period for lodging such a claim had passed.
[20] Mr Massaro submitted that the letter of 13 May 2011 clearly established that Mr Danby was considering an adverse action claim against both the company and its directors. 13 Mr Tracey submitted that this correspondence was equivocal.14
[21] There was no evidence that Mr Danby instructed his lawyers to commence an adverse action claim against Mr Lane and Mr Weir and that they neglected to do so.
[22] However Mr Danby sought legal advice from a firm that was described by Mr Massaro as “a specialist law firm” and they did not advise him to commence a section 365 proceeding against Mr Weir and Mr Lane.
[23] Mr Danby submitted that the failure of his legal representatives to advise him that he could take a general protections claim against Mr Weir and Mr Lane constituted representative error.
(b) any action taken by the person to dispute the dismissal
[24] It is not disputed that Mr Danby disputed his dismissal with DLW. 15
(c) prejudice to the employer (including prejudice caused by the delay)
[25] It was not submitted that DLW, Mr Lane or Mr Weir would suffer any prejudice.
(d) the merits of the application
[26] It is not clear that Mr Danby could succeed in a claim against Mr Weir or Mr Lane in relation to section 365 of the Act.
[27] Section 365 of the Act provides as follows:
“365 Application for FWA to deal with a dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to FWA for FWA to deal with the dispute.”
[28] It was not disputed that Mr Danby was dismissed by DLW. Mr Danby alleges that he was dismissed in contravention of section 340(1) of the Act.
[29] Section 340(1) of the Act provides as follows:
“340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).”
[30] Adverse action is defined as follows:
“342 Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action | |||
Item | COLUMN 1 Adverse ACTION IS TAKEN BY ... | Column 2 if ... | |
1 | an employer against an employee | the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee’s prejudice; or (d) discriminates between the employee and other employees of the employer. | |
2 | a prospective employer against a prospective employee | the prospective employer: (a) refuses to employ the prospective employee; or (b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee. | |
3 | a person (the principal) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor | the principal: (a) terminates the contract; or (b) injures the independent contractor in relation to the terms and conditions of the contract; or (c) alters the position of the independent contractor to the independent contractor’s prejudice; or (d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or (e) refuses to supply, or agree to supply, goods or services to the independent contractor. | |
4 | a person (the principal) proposing to enter into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor | the principal: (a) refuses to engage the independent contractor; or (b) discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor; or (c) refuses to make use of, or agree to make use of, services offered by the independent contractor; or (d) refuses to supply, or agree to supply, goods or services to the independent contractor. | |
5 | an employee against his or her employer | the employee: (a) ceases work in the service of the employer; or (b) takes industrial action against the employer. | |
6 | an independent contractor against a person who has entered into a contract for services with the independent contractor | the independent contractor: (a) ceases work under the contract; or (b) takes industrial action against the person. | |
7 | an industrial association, or an officer or member of an industrial association, against a person | the industrial association, or the officer or member of the industrial association: (a) organises or takes industrial action against the person; or (b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment; or (c) if the person is an independent contractor—takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or (d) if the person is a member of the association—imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member). | |
(2) Adverse action includes:
(a) threatening to take action covered by the table in subsection (1); and
(b) organising such action.”
[31] Section 340 of the Act is a civil remedy provision.
[32] Section 550 of the Act provides as follows:
“550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.”
[33] It is not disputed that Mr Danby was dismissed but he was not dismissed by Mr Weir or Mr Lane, albeit they signed the letter of termination. Mr Danby alleges that they were involved in that dismissal.
[34] It is arguable that Mr Danby’s claim against Mr Weir and Mr Lane in relation to his dismissal is bound to fail because he would be unable to prove that Mr Weir or Mr Lane “dismissed him” and therefore he would be unable to prove that they took adverse action against him.
[35] It was submitted that Mr Danby’s claim against DLW has a prospect of success solely deriving from the reverse onus of proof. 16
[36] Assuming that Mr Danby could establish that DLW had contravened a civil remedy provision Mr Massaro accepted that Mr Weir and Mr Lane may have a case to answer assuming he could get over the “jurisdictional issues” 17 namely that Mr Weir and Mr Lane did not dismiss Mr Danby. I understand this submission to accept that Mr Lane and Mr Weir would have a case to answer that they were involved in a contravention of a civil remedy provision.
(e) fairness as between the person and other persons in a like position
[37] Mr Massaro submitted that the Applicant was represented by a specialist law firm. Further as the general manager for DLW he managed the employer’s human resources. He is, it was submitted, a sophisticated litigant. 18 Further it was submitted that DLW was solvent and would be able to meet any judgement made against them in this matter.19
[38] It was submitted in reply that Mr Danby did not know that proceedings could be brought against individuals. 20
Conclusion
[39] Fair Work Australia and it predecessors have taken the approach that depending on the circumstances representative error may be a sufficient reason to extend time. 21 These cases have often involved a failure of the representative to act on the client’s instructions. That was not the case here. Here Mr Danby relied upon and acted upon the advice of his representatives. I adopt the view of Vice President Lawler who said that a “lay person should not be regarded as acting in a blameworthy fashion when they act on the advice of an expert that they retain for the purpose of giving expert advice.”22 Therefore failing to advise an applicant that proceedings should be instituted against a particular respondent within the time limit for instituting the proceedings may constitute representative error.
[40] However on the material before me I do not consider that Mr Danby’s representatives made such a representative error in not instituting section 365 proceedings against Mr Weir and Mr Lane.
[41] While Mr Danby was not advised that he could bring proceedings against Mr Weir and Mr Lane in relation to the dismissal I am unable to conclude that a failure to give that advice was an error. No submissions were made that Mr Danby would not be able to institute proceedings pursuant to section 550 of the Act against Mr Lane or Mr Weir without a section 369 certificate naming them as respondents.
[42] Mr Tracey submitted that Mr Danby could not bring a section 372 application against Mr Weir and Mr Lane because “the applicant was constrained to bring a section 365 application in this matter because of the dismissal being involved, in the words of section 365.” 23
[43] I do not accept that Mr Danby was unable to bring an application under section 372 against Mr Lane or Mr Weir in relation to conduct that occurred prior to the dismissal. Further there is no requirement that Mr Danby have a certificate to bring the proceedings in the appropriate court alleging adverse action prior to the dismissal by Mr Lane and Mr Weir.
[44] I accept that no prejudice would be suffered by Mr Lane, Mr Weir or DLW if an extension of time were granted. I further accept that if DLW is found to have contravened the Act then there is an arguable case that Mr Lane and Mr Weir were involved in that contravention and that much was conceded by Mr Massaro. I also accept that Mr Danby had raised with Mr Lane, Mr Weir and DLW his allegations about adverse action taken prior to the termination of his employment and contested his dismissal at the time and since.
[45] However, given I have not found any representative error, I do not consider that there are exceptional circumstances warranting the granting of an extension of time and the application is dismissed.
COMMISSIONER
Appearances:
J Tracey of Counsel for the applicant.
A Massaro for the respondent.
Hearing details:
2011.
Melbourne:
October 6.
1 Transcript PN 14
2 Ibid PN 29
3 Ibid PN 20
4 Ibid PN 34
5 Ibid PN 40
6 Ibid PN 45
7 Ibid PN 47
8 Ibid PN 48
9 Ibid PN 54
10 Exhibit R1 and Transcript PN 60
11 Transcript PN 45
12 Ibid PN 70
13 Transcript PN 141
14 Ibid PN 112
15 Ibid PN 142
16 Ibid PN 144
17 Ibid PN 145
18 Ibid PN 146
19 Ibid PN 148
20 Ibid PN 152
21 Clarke v Ringwood Private Hospital 74 IR 413 at 418
22 McConnell v A&PM Fornataro[2011] FWAFB 466 at [66]
23 Transcript PN 103
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