Staymar v UAM Pty Ltd
[2016] FWC 1477
•10 MARCH 2016
| [2016] FWC 1477 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
David Staynor
v
UAM Pty Ltd T/A UAM
(C2015/3475)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 10 MARCH 2016 |
Application to deal with contraventions involving dismissal – extension of time – exceptional circumstances warranting allowing a further period for the making of an application – period for making the application extended to 31 July 2015.
[1] Mr David Staynor (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 31 July 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by UAM Pty Ltd T/A UAM (UAM – the Respondent) on 9 July 2015 in contravention of the general protections provisions in the Act.
[2] As the application had been lodged one day outside the statutory timeframe for lodgement, the Commission issued Directions on 19 August 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.
[3] The extension of time issue was the subject of a telephone hearing on 1 October 2015. At the telephone hearing, Mr Eddy Gisonda of Counsel appeared with permission for the Applicant, while Mr James Kerr, the Applicant’s solicitor, gave evidence for the Applicant. Mr John Douglas appeared for UAM.
[4] For the reasons set out below, I have concluded that there were exceptional circumstances warranting an extension of time and extend the timeframe for lodging the application to 31 July 2015
Background
[5] UAM is one of Australia’s leading providers of diversified services to utility and energy organisations, government departments, councils and major blue chip companies. UAM was acquired by Spotless in July 2015 1.
[6] Mr Staynor commenced employment with UAM on 19 August 2013 and was dismissed on 9 July 2015. Mr Staynor contended that he was dismissed because he suffered from severe anxiety, stress and depression. UAM contends that Mr Staynor was dismissed because his position was redundant following the acquisition of UAM by Spotless on 1 July 2015.
[7] On 16 July 2015, Mr Kerr wrote to UAM on Mr Staynor’s behalf disputing the dismissal, with Mr Douglas responding on 21 July 2015.
[8] In subsequent developments, Mr Staynor’s general protections application was received by the Commission on 31 July 2015, one day outside the 21-day statutory timeframe for lodgement specified in s.366(1)(a) of the Act. In his application, Mr Staynor alleged that he was dismissed in contravention of s.351 of the Act, contending that he was dismissed on the basis of his physical or mental disability.
The Relevant Legislation
[9] Section 366 of the Act provides:
“366 Time for application
366(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).
366(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.”
Whether to allow a further period for the application to be made
[10] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.
(a) The reason for the delay
[11] Mr Staynor submitted that the reason for the delay in lodging his application was an administrative error on the part of his solicitor, Mr Kerr, who incorrectly calculated when the 21 day period expired. In his witness statement 2, Mr Kerr deposed that he took instructions from Mr Staynor on 13 July 2015 and that he incorrectly calculated the 21 day period on that day. Mr Kerr also gave oral evidence at the telephone hearing. In response to a question from Mr Gisonda as to when if at all he had advised Mr Staynor of the date his application was to be lodged by, Mr Kerr attested that he calculated the 21 day period on 13 July when he first met with Mr Staynor. It was Mr Kerr’s evidence that Mr Staynor instructed him to lodge his general protections application on 21 July 2015 after they had discussed the Respondent’s response to Mr Kerr’s letter of 16 July 2015. Under cross-examination, Mr Kerr confirmed that he miscalculated the 21 day period on 13 July 2015 and that there had been discussions between himself and Mr Staynor over the period 21 to 31 July 2015 regarding Mr Staynor’s general protections application, though Mr Kerr not indicate in his evidence who initiated those conversations.
[12] UAM submitted that in circumstances where representative error was relied upon as the reason for the delay that it was the actions of the employee that are the central consideration in deciding whether or not that reason was acceptable. UAM further submitted that in this case Mr Staynor asserted that he had given instructions to Mr Kerr to file his general protections application but provided no indication as to whether he had followed up on that instruction, noting that where an application is delayed because the employee has left the matter in the hands of their representative and has not followed up the claim, the extension may be refused.
[13] As noted by a Full Bench in Robinson v Interstate Transport Pty Ltd 3 (Robinson) the approach to representative error as an explanation for late lodgement was first set out in Clark v Ringwood Private Hospital (Clark)4in the context of a discretion to extend under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act) followed by a Full Bench decision in Davidson v Aboriginal & Islander Child Care Agency (Davidson).5
[14] The approach in Clark’s Case was summarised in Davidson 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.” 6 (Underlining added)
[15] An analysis of the material before the Commission indicates that:
- Mr Kerr miscalculated when the 21 day period expired on 13 July 2015;
- it is not clear whether Mr Kerr advised Mr Staynor on 13 July 2015 that he calculated that his application was due to be lodged on 31 July 2015;
- Mr Staynor instructed Mr Kerr to lodge an application on 21 July 2015;
- there were a number of discussions between Mr Kerr and Mr Staynor over the period 21 to 31 July 2015 regarding Mr Staynor’s application; and
- it is not clear who initiated those discussions.
[16] Based on the material before the Commission, I am satisfied that Mr Staynor gave clear instructions to Mr Kerr on 21 July 2015 to prepare a general protections application, that he is likely to have relied upon Mr Kerr to ensure that the application was lodged correctly and within time and that Mr Kerr did not do so as a result of having miscalculated when the 21 day period expired. Taken together, these considerations point to the existence of exceptional circumstances.
(b) Any action taken by the person to dispute the dismissal
[17] It was not disputed that Mr Staynor took action to dispute his dismissal when Mr Kerr wrote to UAM on 16 July 2015. However, both that correspondence and UAM’s reply of 21 July 2015 were well within the 21 day timeframe. I therefore consider this factor to be a neutral consideration.
(c) Prejudice to the employer (including prejudice caused by the delay)
[18] It was not disputed that UAM would not be prejudiced were an extension of time granted. I therefore also consider this factor to be a neutral consideration.
(d) The merits of the application
[19] Mr Staynor submitted that because UAM knew of Mr Staynor’s illness and his dismissal and given the lack of any warning or explanation regarding his dismissal that he presumed that he had been dismissed because he had a medical or physical disability. Mr Staynor also submitted that he was under a special work program at UAM which involved his supervisor being mindful of not placing him under too much stress when allocating work to him. Under cross examination, Mr Kerr attested that Mr Staynor had provided him with instructions regarding his illness but no documents.
[20] While UAM did not deny that it had taken adverse action against Mr Staynor by dismissing him, it submitted that at no time did Mr Staynor provide any evidence or make any assertion that he was suffering from a physical or mental disability. UAM further submitted that Mr Staynor had failed to produce any evidence of his disability to support his application. At the telephone hearing, UAM reiterated that Mr Staynor had not provided any evidence to substantiate his disability, adding that the decision maker regarding Mr Staynor’s termination had no knowledge of his disability/condition.
[21] While I acknowledge that the telephone hearing was not a substantive hearing of the merits of Mr Staynor’s application, it is particularly noteworthy that there was no material before the Commission to substantiate Mr Staynor’s claim that he had a disability or that he was under a special work program at UAM. Further, the reasons relied upon by Mr Staynor for presuming he had been dismissed as a result of his alleged disability were not overly compelling. Against that background, based on the material before the Commission, the merits of Mr Staynor’s application do not appear particularly strong. This does not point to the existence of exceptional circumstances.
[22] However, at the telephone hearing both parties foreshadowed the evidence they would lead should the application be the subject of a general protections court application. Having regard to the parties’ submissions in that regard and despite the absence of material to substantiate Mr Staynor’s claims regarding his disability, on balance, I consider this factor to be a neutral consideration.
(e) Fairness as between the person and other persons in a like position
[23] Mr Staynor submitted that he would be prejudiced were an extension of time not granted.
[24] UAM submitted that were the Commission satisfied that Mr Staynor gave instructions for the filing in his application and that he followed up on those instructions to ensure that they had been followed that this may go to the grant of an extension of time.
[25] Against that background, I consider this factor to be a neutral consideration.
Conclusion
[26] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 7(Nulty) in the following way:
“[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.”
[27] Having considered all of the factors set out in s.366(2) and drawing on Nulty, I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).
[28] The timeframe for lodging the application is extended to 31 July 2015. An order to that effect will be issued with this decision. The application will now be listed for a conference aimed at resolving the dispute.
Appearances:
E. Gisonda of Counsel for the Applicant.
J. Douglas for the Respondent.
Hearing details:
2015.
Canberra and Melbourne (telephone hearing):
October 1.
1 Exhibit G1
3 (2011) 211 IR 347
4 (1997) 74 IR 413
5 (1998) 105 IR 1
6 Ibid
7 [2011] FWAFB 975
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