Rui Andrade v Goodyear & Dunlop Tyres (Aust) Pty Ltd David Hamilton Marcus Beh Robert Cross

[2017] FWC 5393

[2017] FWC 5393

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Rui Andrade
v
Goodyear & Dunlop Tyres (Aust) Pty Ltd
David Hamilton
Marcus Beh
Robert Cross
(C2017/4871)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 23 OCTOBER 2017

Application to deal with contraventions involving dismissal.

[1] Mr Rui Andrade alleged that the termination of his employment by Goodyear & Dunlop Tyres (Aust) Pty Ltd was in breach of the general protections provisions of the Fair Work Act 2009. Goodyear denies the allegation.

[2] At the hearing, I granted permission for the parties to be legally represented. There was no opposition to this course and I formed the view that this extension of time application did involve some complexity and representation would allow the matter to be dealt with more efficiently.

[3] As Mr Andrade’s dismissal took effect on 13 June 2017, his general protections application lodged on 1 September 2017 was not lodged within 21 days of the dismissal.

Background

[4] Prior to his dismissal, Mr Andrade had an application against Goodyear in the Federal Circuit Court. That application, lodged in 2015, alleged underpayment of wages, breaches of the General Retail Industry Award 2010 and breaches of the general protections provisions of the Act. That application was due to be heard on 17 July 2017. 1

[5] On 13 June 2017, Mr Andrade was dismissed. On 14 June 2017, the solicitors for Mr Andrade contacted the Circuit Court and sought an urgent listing. 2 Relevantly, no application for an injunction was made.

[6] On 16 June 2017, there was a directions hearing at which Counsel for Mr Andrade foreshadowed issuing a subpoena to Goodyear to produce documents and sought leave to amend the pleadings to allege further adverse action including dismissal. 3 Counsel for Goodyear agreed that leave should be granted to allow for the inclusion of subsequent events.4 The hearing dates were vacated.

[7] On 22 June 2017, a subpoena was issued to Goodyear and documents were produced on 5 July 2017. 5

[8] A further directions hearing was held on 14 July 2017 and Mr Andrade sought further mediation prior to filing amended pleadings. This was opposed by Goodyear.

[9] On 19 July 2017, the solicitors for Goodyear sent the solicitors for Mr Andrade a without prejudice letter. Part of that letter put Mr Andrade’s solicitors and Mr Andrade on notice that s.370 of the Act required Mr Andrade to either obtain a certificate under s.366 of the Act or apply for an interim injunction. Mr Andrade and his solicitors were put on notice that, as they had not done either, there was no proper basis to amend the pleadings to include the dismissal. 6

[10] On 19 July 2017, the solicitors for Mr Andrade sent Goodyear’s solicitors proposed consent orders in which they proposed that the amended pleadings be filed on 1 September 2017. 7 On 28 July 2017 consent orders were made.

[11] On 9 August 2017, the solicitors for Goodyear again wrote to Mr Andrade’s solicitors raising a jurisdictional objection to the proposed amended pleadings, namely the absence of a certificate issued by the Commission. 8

[12] On 1 September 2017, amended pleadings were filed with the Circuit Court. It added three new respondents and added pleadings in relation to the dismissal. On the same day, a general protections dismissal application was made to the Commission. That application has the same respondents as the amended claim in the Circuit Court.

The legislative framework

[13] The Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. 9 In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters10. Only if it is satisfied that there are exceptional circumstances, can it then exercise its discretion to decide whether to extend time.

[14]
The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 11 where the Full Bench said:

“[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." [Endnotes not reproduced]

(a) the reason for the delay;

[15] When considering the reasons for the delay the following principles are relevant:

• The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 12 



• An applicant needs to provide a credible reason for the whole of the period that the application was delayed. 13



• The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. 14



• The longer the delay in making an unfair dismissal application the more difficult it will generally be to get over the high hurdle of exceptional circumstances. 15

[16]
Mr Andrade said the delay was caused by the fact that he already had proceedings on foot. He immediately took steps in the Circuit Court to attempt to move the parties to mediation without incurring further costs. 16 He took reasonable steps to carefully formulate his amended general protections claim in accordance with the agreed timetable.17 He then commenced his proceedings in the Commission.18 It was submitted that “a large part of the explanation …. is the fact that the applicant waited until the further amended statement of claim was finalized before commencing the proceedings in the Commission.”19

[17] Mr Andrade’s solicitors were advised by Goodyear of the need for a certificate on 19 July 2017. When asked why the application was not lodged then Counsel for Mr Andrade said by that time “the application was already out to time”. 20 It was put to Counsel that he needed to explain the whole of the delay and that submissions that it was already out of time so further delay did not matter had not been a successful argument before the Commission. Counsel replied that “in the context of the respondents putting the applicant to the cost of amending his claim in the court and the practical reality that if we had not waited until we had finished the further amended statement of claim and started proceedings in the Commission earlier than that, (1) we’d still be late and (2) given the way the matter had been litigated over more than two years, we would still be subject to a complaint from the respondents that the Commission can’t do anything about the matter because there’s a pending statement of claim coming in the court proceedings in accordance with consent directions.”21

[18] It was put that an earlier lodgment in the Commission “wouldn’t save any time in the Commission’s proceedings and we’ve already got a hearing date in the court proceedings, so it’s not going to delay any time in the court either, so to the extent that whether the applicant files on 20 July or on 1 September doesn’t make any difference to the circumstances because the Commission is, in reality in this case, only going to be performing a conciliation function.” 22

[19] It was put that the Commission’s role was limited to conciliation as it was unlikely that the parties would consent to the Commission arbitrating the dismissal dispute. 23 It was put that “putting the claim on in the Commission straight away would have been a waste of time because the respondent would have said, just like it says to the court, ‘we’re not going to conciliate or mediate until we’ve seen the next statement of claim’.”24

[20] It was put to Counsel that had they filed soon after 19 July 2017 they would not have been required to explain the additional delay. Counsel accepted that they could have filed earlier but they would “still have the same difficulty because the respondents already told us that they were opposing the extension of time.” 25

[21] It was submitted that the reason dismissal matters come to the Commission first and the reason for the 21 day time limit is to ensure dismissal matters are dealt with promptly. It was submitted that “those objectives aren’t compromised in this case if the applicant doesn’t file his claim in the Commission until he’s gone to the expense of preparing a statement of claim in this case because in these exceptional circumstances the respondent has already said ‘we’re not interested in mediation’.” 26 It was said the Commission’s role has not been “compromised at all by the delay in the applicant waiting until after he’s completed his statement of claim.”27

[22] It was put that “it is an exceptional circumstance where the matter’s already on foot in the court and where the respondent’s representative and the applicant’s representative have been dealing with each other in litigation for some time and the respondents have indicated “we’re not interested in a conciliated or mediated outcome until you’ve got your statement of claim on.” 28

[23] It was put that the Commission should have regard to the fact that there is no practical difference to the litigation between the parties as a result of the delay. 29

[24] It was submitted that the decision of Mr Andrade to wait “until after the completion of the amended statement of claim was a sensible and logical course of conduct for the applicant in this case.” 30

[25] When it was put to Counsel that the existence of the court proceedings did not prevent them making this application and that a decision was made not to make the application immediately, Counsel said “the reason we didn’t file within the 21 days was that instead we immediately agitated it in the court.” 31 That was in the context of an impending court date so they needed to return to court to have the dates vacated and to amend his claim.32 It was reiterated that the reason for the delay was “because instead we took the other steps in the other proceedings and then made a decision to hold off filing in the Commission until the amended statement of claim was finalized.”33

[26] Goodyear submitted that Mr Andrade had not provided any explanation for the delay. It does not dispute the circumstances relied upon by Mr Andrade but says this does not explain why they did not file within the 21 days. Goodyear appear to accept that it may have been an oversight by Mr Andrade and his solicitors prior to them being put on notice on 19 July 2017 of the need for a certificate. However, once they were put on notice, Goodyear submitted that there was a positive decision to take no steps to seek a certificate.

[27]
It goes without saying that Mr Andrade had proceedings on foot however these proceedings did not relate to his dismissal. Even accepting that Goodyear agreed on a timetable to file an amended statement of claim, Mr Andrade was on notice from 19 July 2017 that there was a jurisdictional barrier to such an amendment yet he waited until 1 September 2017 to lodge his application.

[28] Mr Andrade was at all times represented by solicitors.

[29] Despite the advice from Goodyear about the jurisdictional barrier to the amended claim Mr Andrade decided to complete the amended pleadings prior to lodging this application.

[30] In this case there was no evidence or submission that Mr Andrade and his solicitors were not aware of both the need for a certificate and the 21 day time limit for lodging the application. There was no submission that this was a case of representative error.

[31] I accept that there was litigation on foot. However the existence of that litigation did not prevent an application being made to the Commission.

[32] The refusal of Goodyear to participate in further mediation in the Court does not explain the delay. Had the Commission application been made within the 21 days and had Goodyear refused to participate in conciliation until such time as an amended pleading was filed then either the conciliation may have been delayed or a certificate may have issued because the matter was unable to be resolved. Further, there is no evidence that had the application been lodged within 21 days that Goodyear would have refused to participate in conciliation before the Commission.

[33] Further, the delay caused by Mr Andrade’s decision to await the completion of the amended pleadings before filing this application was a decision entirely of his own making. His Counsel foreshadowed on 16 June 2017 an intention to amend the pleadings to include the dismissal. Mr Andrade’s solicitors proposed on 19 July 2017 a filing date of 1 September 2017 for the completion of the amended statement of claim knowing that this further delayed the filing of this application.

[34] I do not accept the submission that once an application is late that further delay is not relevant. It is well established that the whole of the delay must be explained. Nor do I accept that the fact that the delay will not impact the court date is relevant to the question of whether there is a reasonable explanation for the delay. It could be said that, given the time taken for these matters to be resolved in the courts, any delay in lodging an application will have little impact on the length of time the matter will take to be resolved by the court if it does not settle at conciliation. I am not satisfied that this is a reasonable explanation for delaying lodging an application in circumstances where there is a time limit to file the application.

[35] In the absence of a submission that the decision to delay filing the application was a result of representative error, I am not satisfied that there was a reasonable explanation for the whole of the delay. In circumstances where there was knowledge, at least from 19 July 2017, that an application needed to be filed in the Commission, the reasons for the delay put forward by Mr Andrade strongly weigh against a finding that there are exceptional circumstances.

(b) any action taken by the person to dispute the dismissal;

[36] It is clear that Goodyear was on notice from 16 June 2017 Mr Andrade disputed his dismissal. Mr Andrade’s solicitors put Goodyear on notice prior to the dismissal that he considered the allegations and the investigation that led to the dismissal were occurring because Mr Andrade had filed the Circuit Court matter. I am satisfied that Mr Andrade disputed his dismissal and this weighs in favour of a finding of exceptional circumstances.

(c) prejudice to the employer (including prejudice caused by the delay);

[37] Mr Andrade submitted that the delay in lodging this application would have no practical consequence. He has a court date in 2018 to hear the substantive application. It was submitted that the Commission processes would be enhanced because the conciliation would occur after the amended statement of claim was filed and therefore all matters in dispute would be before the Commission. Goodyear did not call any evidence or make any submission about any prejudice to it. I accept that Goodyear will not suffer any prejudice if an extension of time was granted. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(d) the merits of the application;

[38] In the matter of Kornicki v Telstra-Network Technology Group 34 the 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 Commission said:

"The merits of the substantive application. 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." 35

[39] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case." 36 

[40] Mr Andrade submitted that he was dismissed because he made complaints about his employment; raised work health and safety issues; and/or because he initiated and participated in the court proceedings. His letter of termination advised that Goodyear terminated Mr Andrade’s employment because he directly threatened another associate of Goodyear with violence; behaved in an aggressive and physically intimidating manner; put the safety of Mr R at risk; and in doing so breached his contract of employment and Goodyear’s policies.

[41]
To support his contention as to the reason for his dismissal, Mr Andrade relied on extracts from a witness statement filed in the Circuit Court proceedings in which a former manager gave evidence that he was told during 2015 or early 2016 by Mr C that the Vice President Retail Sector had said that “we want Rui (Mr Andrade) gone but he’s gone to Court so now we have to do it properly.” He also relies on Goodyear records which indicate that Mr R made allegations about Mr Andrade’s conduct but said he was not intimidated by Mr Andrade’s behaviour and despite the threat he did not expect Mr Andrade to carry it out. 37

[42] It was submitted that the prospects of Mr Andrade’s case are strong. 38

[43] Goodyear relied upon the letter of termination which set out the decision maker’s reason for the dismissal. It submitted that the matters relied upon by Mr Andrade namely that Mr R did not feel intimidated are not relevant to a consideration of a general protections claim.

[44] There are factual disputes between the parties which I am not able to resolve at this time. I am not able to determine that the prospects of Mr Andrade’s case are strong based on the limited untested evidence before me. However having regard to the requirement that Goodyear must establish that the reasons for the dismissal do not include reasons prohibited by the Act, Mr Andrade’s case is not unarguable and hence the merits weigh in favour of a finding of exceptional circumstances.

(e) fairness as between the person and other persons in a similar position.

[45] Goodyear submitted that regard should be had under this criterion to the additional respondents. It is not clear to me that Mr Andrade was required to include these respondents in this application. 39

[46] Accordingly I am not satisfied that the position of these respondents is a relevant consideration.

[47] Mr Andrade submitted that he was in an extraordinary position. It was submitted that “in circumstances where the Applicant is attempting to engage the protections of the statute in relation to his dismissal, and where the Respondent has consented in the Court for him to do so, he is now in a less fair position than people in a similar situation who can avail themselves of the statutory protection.” 40

[48] This criterion was considered by Commissioner Ryan in Ivan Whittle v

Redi Milk Australia Pty Ltd 41and he set out the relevant decisions in relation to this criterion.

[49]
I consider this criterion has a narrow application and in the absence of submissions that there were other persons in a similar position to Mr Andrade, in terms of matters currently before the Commission or matters which have been previously decided by the Commission, I consider this criterion to be neutral.

Conclusion

[50] I am not satisfied that there are exceptional circumstances.

[51] I accept the submissions that to only have regard to the lack of a reasonable explanation for the delay and not have regard to the other factors in s.366(2) would be an error.

[52] I have had regard to the fact that Mr Andrade has litigation on foot in the Circuit Court and that if he is not granted an extension of time he will not be able to agitate what to him is the final step in a series of unlawful steps taken by Goodyear. I accept that granting an extension of time will not further delay that litigation.

[53] However, in this case, I consider that the lack of a reasonable explanation for the delay outweighs the other factors. It was not put that this was a case of representative error. I cannot therefore assume that Mr Andrade was in fact given incorrect advice in this matter. A deliberate decision was made to ignore the time limit set by the Act. That decision has consequences, and failing a submission that this was representative error, those consequences fall to Mr Andrade.

[54] I have considered whether the decision not to file within the time limit set by the Act was a sensible and logical course of conduct. However I do not accept this submission. One only needs to look at what would have happened if the application had been filed within time, to see why the absurdity of this submission. General protections applications are not complex to complete. They are not pleadings. Had an application been filed in time, Goodyear could have made no objection. Had such an application been made, conciliation could have occurred prior to the date set for the filing of the amended pleadings. Had Goodyear refused to participate in conciliation, Mr Andrade could have asked the Commission to issue the necessary certificate. Mr Andrade would then have been able to file amended pleadings which included one of the essential prerequisites for make a general protections dismissal claim in the court namely the existence of the certificate.

[55] I have considered whether the decision to deliberately ignore the time limits set by the Act is itself exceptional but that would lead to a perverse outcome. Ignorance of the time limits without more is not considered exceptional. It is therefore difficult to conceive of how a deliberate decision to delay filing an application could ever be considered an exceptional circumstance.

[56]
Factors s.366(2)(b), (c) and (e) all weigh in favour of a finding of exceptional circumstances but neither singly nor in combination do they outweigh the lack of a reasonable explanation for the delay. A deliberate decision was made to ignore the time limit imposed by the Act and this is not a case where the merits of the application are, on the material before the Commission, along with the other factors so strong as to outweigh the fact that this decision was unreasonable.

DEPUTY PRESIDENT

Appearances:

M. Easton for the Applicant.

T. Donaghey for the Respondent.

Hearing details:

2017.

Melbourne, by telephone:

5 October.

 1 Exhibit R1 at [9].

 2 Exhibit A1 at [14].

 3 Exhibit R1 at [8].

 4   Ibid.

 5   Exhibit A1 at [17]-[18].

 6 Exhibit R1 at [17].

 7 Ibid at [18].

 8 Ibid at [20].

 9   S.366(1).

 10   S.366(2).

 11   [2011] FWAFB 975.

 12    Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 13   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409.

 14   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.

 15   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

 16 Submissions of the Applicant at [20].

 17   Ibid.

 18   Ibid.

 19   Transcript PN 43.

 20   Ibid PN 48.

 21   Ibid PN 52.

 22   Ibid PN 53.

 23   Ibid PN 54.

 24   Ibid.

 25   Ibid PN 56.

 26   Ibid.

 27   Ibid.

 28   Ibid PN 57.

 29   Ibid PN 62.

 30   Ibid PN 74.

 31   Ibid PN 165.

 32   Ibid PN 165-167.

 33   Ibid PN 168.

 34   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 35   Ibid.

 36   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 37   Outline of submissions of Mr Andrade at [29]

 38   Transcript PN 76.

 39   Bognar ve Skilled Offshore Pty Ltd and another [2016] FCCA 2962.

 40   Submissions of the Applicant at page 8.

 41   [2016] FWC 3773.

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