Shawn Garson v Urban Land Authority T/A Places Victoria
[2013] FWC 6586
•9 SEPTEMBER 2013
[2013] FWC 6586 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Shawn Garson
v
Urban Land Authority T/A Places Victoria
(C2013/3672)
COMMISSIONER LEE | MELBOURNE, 9 SEPTEMBER 2013 |
Application to deal with an unlawful termination dispute - extension of time for lodgement of application - ss. 365, 366 Fair Work Act 2009.
[1] On 21 March 2013, Mr Shawn Garson (the Applicant) made an application pursuant to section 773 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed in contravention of Part 6-4 of the Act by Urban Land Authority T/A Places Victoria (the Respondent).
Introduction and Background
[2] This matter was originally allocated to Commissioner Lewin. Commissioner Lewin listed the matter for conference on 29 April 2013. An adjournment request was received from the Applicant. The adjournment was granted and the matter was re-listed for conference on 17 May 2013. A further conference was listed for 24 May 2013, but the matter remained unresolved. The matter was allocated to me as a result of Commissioner Lewin’s subsequent unavailability.
[3] The matter was listed for conference before me on 24 June 2013. The conference failed to settle the dispute. The Respondent raised two jurisdictional objections to the application. Firstly, the Respondent asserted that the Applicant was not entitled to make an application under section 773 of the Act due to the operation of section 723 of the Act. Secondly, the Respondent asserted that, should the Commission determine to amend the application to be an application under section 365 of the Act, that the application was made out of time.
[4] On the day of the conference, I issued a decision 1 to amend the application (using the power conferred on the Commission under section 586 of the Act) to be an application made under section 365 of the Act, as it was clear that the Applicant was entitled to make an application under section 365 of the Act. This course of action was not objected to by the Respondent. On the same date I issued directions for a hearing to be held on 27 June 2013.
[5] At the hearing, the Applicant conceded that the date of termination was 27 February 2013. 2 As detailed above, the application was made on 21 March 2013. The Applicant gave evidence that he had attempted to lodge his application online, unsuccessfully, during the statutory time period. Subsequent to the hearing, I sought information from the Fair Work Commission’s Information & Communications Technology team in order to assist with determining the veracity of these claims. Having obtained that information, I sought further submissions from the parties. I received submissions from both parties responding to the extra information provided.
The matter for determination
[6] An application made under s.365 of the Act must also comply with s.366 of the Act.
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC 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.”
[7] The matter for determination is whether or not this application meets the requirements of section 366 of the Act.
The law to be applied:
[8] Subsection 336(2) of the Act requires that, in deciding whether to grant an extension of time, I must consider if there are exceptional circumstances taking into account a number of factors. In considering what are exceptional circumstances I have adopted the approach of Vice President Lawler in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation 3, where it was stated that;
“In summary, the expression “exceptional circumstances” 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.” 4
Consideration of the factors in section 366(2) of the Act
Subsection 366(2)(a) - the reason for the delay;
[9] The delay in filing the application in this matter is one day. The application was received by mail stamped received 21 March 2013. For the application to have been received within the statutory time limit, the application must have been received by 20 March 2013.
[10] As described above, at the hearing the Applicant gave evidence that he tried to lodge his application on 20 March 2013 from his home email, while he was talking to a representative of the Fair Work Ombudsman. His evidence was as follows;
“I was on the phone with the Ombudsman. We tried to digitally put it through on the 20th, that day, and it wouldn't go through. Because I spent half a day scanning, and this and that, and it wouldn't go through your portal, and there will be evidence that I tried to attempt obviously through your system. The Ombudsman said to me - because he was helping me go through it on the phone. He said, "Well go and register a letter and post it in right away so it gets there", which I did do. So you'll probably get it postmarked on that envelope of the 20th, the date that I sent it.”
[11] The fact the postal version of the application was received on 21 March 2013 is consistent with the evidence that the application was posted on 20 March 2013.
[12] When asked by me if there was any evidence of him trying to lodge the application on 20 March 2013, the Applicant suggested that I check the Fair Work Commission’s computer drives as he was confident that such inquiry would yield evidence of his attempts to log in to the Fair Work Commission e-filing system. At the conclusion of the hearing, I requested that the Fair Work Commission Information & Communications Technology team conduct a search of the Commission systems to establish if there was any evidence of the Applicant trying to log in to the e-filing system on 20 March 2013.
[13] The information provided to me by the Fair Work Commission Information & Communications Technology team indicated that the Applicant had made two attempts to log in to the Fair Work Commission system. Those attempts were made on 18 March 2013 at 6.17pm and on 20 March 2013 at 1.38pm. The information provided to me by the Fair Work Commission Information & Communications Technology team indicated that the e-filing system was operational on these dates.
[14] Essentially, then, the reason for the delay submitted by the Applicant was a failure to be able to lodge the application electronically, despite his attempts to do so.
[15] The Respondent, when asked to comment on the evidence that supported the Applicant’s submission that he had in fact tried to log to the Commission e-filing system on 20 March 2013, replied that the Applicant had made no reference to his attempt to log in to listing-filing system on 18 March 2013. Rather, the Applicant at the hearing stated that he logged in on 19 March at 9.36am. Further, the Respondent submitted that if the Applicant had attempted to lodge the application on 18 March 2013, and encountered technical difficulties, the Applicant has not given reasons as to why he did not re-attempt to file on 19 March 2013. The Respondent also drew my attention to the evidence that the system was operational on the relevant days.
[16] The Respondent submitted that there are no exceptional circumstances when looking at the circumstances as a whole, which would allow me to be satisfied that I should grant the extension sought.
[17] In considering this matter, I note that there are some inconsistencies in the evidence of the Applicant. In particular, his claim, with some certainty, to having tried to log in on the 19th of March 2013. However, it is possible that the applicant confused the first log in day of the 18th with the 19th of March 2013. His evidence is consistent with the evidence obtained from the Fair Work Commission Information & Communications Technology team that the Applicant attempted to log in on two occasions.
[18] In any case, there was clearly an attempt to log in by the Applicant on 20 March 2013 in evidence. The evidence of the Applicant at the hearing that his unsuccessful efforts to lodge the documents, perhaps because of the amount of scanned material, was plausible.
[19] The Respondent submits that the Applicant, if encountering technical difficulties with the first log in (recorded on 18 March 2013) should have posted the material then. However, the Applicant did not give evidence that he had difficulties with lodging the material at the first log in. It is not clear if the Applicant attempted to lodge materials on 18 March 2013. What is clear is that he tried to lodge the application on 20 March 2013, which was within the statutory time period.
[20] In my view the circumstances in this case broadly parallel those in a decision of Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery 5where the employee attempted to lodge an application in time electronically but was unable to do so. In that case, His Honour determined that this constituted an exceptional reason for the delay.6 I agree with His Honours approach to a consideration of exceptional circumstances for the delay in that matter and apply the same approach here.
[21] I am satisfied that there is a reason for the delay which, having considered all of the circumstances is exceptional.
Subsection 366(b) - any action taken by the person to dispute the dismissal;
[22] The Applicant clearly took action to dispute the dismissal in attempting to lodge his application during the time period. The Applicant’s evidence at the hearing was that he was unable to do anything to contest the dismissal as he was unable to enter the Respondent’s premises and that he was, at the time of the dismissal, on stress leave.
[23] The Respondent submits there is no evidence of the Applicant contestingthe dismissal prior to the time of his submitting the application.
[24] Overall, there is no evidence that there was a contesting of the dismissal, other than the application having been made. However, I note that this is a case involving a one day delay allowing little time for other action to occur. Overall, I consider this factor to be a neutral consideration.
Subsection 366(c) - prejudice to the employer (including prejudice caused by the delay);
[25] As a one day delay is involved, there is unlikely to be prejudice to the Respondent. The Respondent did not put that there is any prejudice as a result of being one day out of time. 7 I am satisfied that there is no prejudice to the Respondent.
Subsection 366(d) - merits of the application;
[26] The Applicant claims that he was made redundant while on stress leave and he does not consider that fair. 8 In the application that he made, he referred to the retrenchment occurring as a result of him making a bullying complaint against one of his superiors in the organisation some years prior to the dismissal. That is, the bullying complaint was the workplace right that was exercised.
[27] The Respondent submits that the merits of the application are weak, stating that;
“(a) The Applicant was dismissed on 27 February 2013 because his position was no longer required to be performed by anyone and had been made redundant. The Applicant’s position was made redundant as a result of an organisation-wide restructure which resulted in a 30% overall reduction in staff.
(b) The fact that the Applicant had made a bullying complaint against [another employee] in 2009 had no relationship to, or bearing on, the decision to make his position redundant.”
[28] The Respondent also foreshadowed a jurisdictional bar to the matter proceeding in the Court (as per Re Australian Education Union; Ex parte State of Victoria 9).
[29] Considering the merits overall, the Applicant is said to have been made redundant as part of an organisation wide restructure. There is nothing to suggest that there is a relationship between the complaint made about another employee in 2009 and the Applicant being dismissed. While the Applicant was dismissed while temporarily absent, again, it is not at all clear there is a causal link. Overall, I agree with the Respondent that the merits of the case are, on the material before me, weak. However, I have insufficient material to determine that the application would have no reasonable prospects of success. However, the apparent weakness of the case weighs against granting the extension.
Subsection 366(e) - fairness as between the person and other persons in a like position.
[30] There are no considerations relevant to these sections that have not already been considered.
Conclusion
[31] I am satisfied that there is an acceptable reason for the delay. There was little action to dispute the dismissal other than the lodgement of the application. However, that was understandable in the circumstances. There is no prejudice to the Respondent. The merits of the application appear, on the materials before me, weak. However, this factor does not outweigh the other considerations such as to not allow an extension of time. There are no particular factors pertaining to the fairness consideration.
[32] Considering the circumstances as a whole, I am satisfied that there are exceptional circumstances and that an extension of time should be granted. A conference has already been conducted by me. That conference failed to settle the dispute and I am confident that all reasonable attempts to settle the dispute have failed. Accordingly, I will issue a certificate pursuant to section 369 of the Act concurrently with this decision.
COMMISSIONER
1 [2013] FWC 4078
2 PN58-59
3 [2007] AIRC 848
4 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848, [10]
5 [2010] FWA 1394
6 Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394, [29]
7 PN167
8 PN134
9 (1995) 184 CLR 188
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