Robert Innes v Berkeley Challenge Pty Ltd

[2014] FWC 3991

[2014] FWC 3991

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Innes
v
Berkeley Challenge Pty Ltd
(U2014/6886)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 17 JUNE 2014

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

[1] On 12 June 2014 I advised the parties to this matter that an extension of time for the application would be refused. These reasons reflect the background and reasons for that decision.

[2] On 29 April 2014 the Construction, Forestry, Mining and Energy Union (CFMEU) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) on behalf of Mr Innes in relation to the termination of his employment with Berkeley Challenge Pty Ltd (Berkeley).

[3] In that application, the CFMEU advised that Mr Innes’ dismissal took effect on 4 April 2014. The CFMEU advised that the Fair Work Commission (FWC) should take into account, the following information in considering whether to accept his application out of time.

• Mr Innes contacted the CFMEU on 4 April 2014 to report his dismissal.



• The CFMEU made enquiries with the employer on Mr Innes’s behalf.



• The CFMEU office was subsequently closed from 18 April 2014 and reopened on 28 April 2014 on account of the various public holidays and industry shutdown. 1

[4] The application was referred to me for consideration. On 1 May 2014 my Associate forwarded to the address provided for the respondent, the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 23 May 2014. Mr Innes was required to provide a witness statement and a copy of any document relied upon, by 16 May 2014.

[5] Mr Innes provided material to the Fair Work Commission (FWC) by 16 May 2014. The information he provided detailed the actions he took with respect to the termination of his employment.

[6] At the scheduled conference on 23 May 2014 my Associate contacted Mr Malcolm, from Berkeley who advised that he had not received a copy of the application or the advice of 1 May 2014. As a consequence, the matter was rescheduled.

[7] Berkeley subsequently provided written submissions and a statement made out by Mr Malcolm as the Project Manager to whom Mr Innes reported.

[8] The extension of time issue was considered through a telephone conference on 12 June 2014. A sound file record of this conference was kept. Mr Innes attended this conference with Ms Dooley of the CFMEU. Berkeley was represented by Mr Douglas as its Human Resources Manager and Mr Malcolm.

[9] Whilst I have considered the extension of time issue on the material before me, my conclusion is based on the information provided to me by Mr Innes and Ms Dooley.

[10] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[11] Section 394 states:

“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.”

[12] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. The application was lodged some 4 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mr Innes’ circumstances can be regarded as exceptional for the purposes of this subsection.

[13] The information Mr Innes has provided confirms that, after he was advised of his selection for redundancy on 6 March 2014 he contacted the CFMEU and then engaged in various discussions with CFMEU personnel about possible alternative positions with Berkeley. Mr Innes advised the CFMEU on 4 April 2014 that his proposed termination of employment had then taken effect. He attempted to obtain alternative employment. Mr Innes advised that he contacted the CFMEU office on 28 April 2014 for advice. He advised that the CFMEU office was closed between the Easter holiday period and the ANZAC long weekend. On 29 April 2014 he visited the CFMEU offices when he instructed the CFMEU to lodge this application.

[14] Ms Dooley advised that the delay was due at least in part to Mr Innes needing time to consider whether to make the application and that he spent some two weeks coming to terms with the termination of his employment.

[15] The information provided to me by Mr Innes and Ms Dooley is such that I am simply not satisfied that Mr Innes’ actions represented any form of challenge to the redundancy decision until 28 April 2014. In this respect I have applied the concept of “exceptional circumstances” in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 2 in the following terms:

“[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.”

[16] I have considered the extent to which the delay in lodging the application should be regarded as a form of representative error in the context of the Full Bench position in Robinson v Interstate Transport Pty Ltd: 3

“24 The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s 170CE(8) of the Workplace Relations Act 1996 (Cth) (the WR Act). It was followed by a Full Bench in Davidson’s Case in relation to s 170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s 366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s 366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s 366(2), subject to consideration of the statutory considerations in ss 366(2)(b) to (e) of the Act.

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 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.”

(references removed)

[17] However, again on the information provided to me by Mr Innes I am not satisfied that Mr Innes took action to progress his application before 28 April 2014. In this respect he did not satisfy the obligation to demonstrate that he was blameless with respect to the late lodgement of the application. His decision to take two weeks to decide to dispute the termination and his failure to obtain advice before the 21 day period means that he was not blameless in terms of the delay.

[18] On the information provided in Mr Innes’ application, I am satisfied that he was made aware of the termination of employment decision well before 4 April 2014 which I have taken as the date that termination of employment took effect.

[19] It is clear from the information provided by Mr Innes that he liaised extensively with the CFMEU about possible alternative employment opportunities within the industry and with companies associated with Berkeley. It is not clear to me that Mr Innes took any other action to dispute the termination of his employment.

[20] I am not satisfied that the granting of an extension of time would, of itself, prejudice the respondent in this matter. However, this does not represent a basis upon which to found an extension of time.

[21] In terms of the merits of the application, the parties dispute the extent to which the termination of Mr Innes’ employment can properly be regarded as a genuine redundancy. The information before me in this respect is contradictory and I have concluded that the merits of the matter should be regarded as a neutral factor in my consideration of the extension of time issue.

[22] Considerations of fairness relative to persons in similar circumstances to Mr Innes do support an extension of time.

Conclusion

[23] For the reasons I have set out above, I am not satisfied that Mr Innes’ circumstances support an extension of time. Mr Innes inaction until 28 April 2014 means that he simply cannot rely on the closure of the CFMEU offices over the Easter/Anzac week as a basis for an extension of time and he has not advanced an acceptable reason for the delay. I am not satisfied that Mr Innes’ circumstances should be regarded as exceptional for the purposes of s.394(3). The request for an extension of time is refused and, accordingly, the application must be dismissed. An Order (PR552092) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

L Dooley representing the applicant.

J Douglas and G Malcolm representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

June 12.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

 3 (2011) 211 IR 347, paras 24 and 25

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<Price code C, PR552091>