Timothy Collins v Trimatic Contract Services Pty Ltd

[2013] FWC 7707

[2013] FWC 7707

The attached document replaces the document previously issued with the above code on 7 October 2013.

The decision has been amended to correct the name of one of the Respondent representatives on page 4 and page 7.

Penelope Curtis

Associate to Deputy President McCarthy

8 October 2013

[2013] FWC 7707

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Timothy Collins
v
Trimatic Contract Services Pty Ltd; Peter Jones; Timothy Ungar
(C2013/3749)

DEPUTY PRESIDENT MCCARTHY PERTH, 7 OCTOBER 2013

Application to deal with extension of time for contraventions involving dismissal.

Background

[1] Mr Timothy Collins (the Applicant) lodged an application with the Fair Work Commission (FWC) to deal with a general protection dispute (the application) on 26 March 2013. In the application the Applicant asserts that Trimatic Contract Services Pty Ltd (the first Respondent) contravened section 357 of the Fair Work Act 2009 (the FW Act) when the Applicant was dismissed.

[2] The application states that the date of the dismissal was 21 or 22 February 2013. The application names three Respondent’s to the dispute. The second Respondent is Mr Peter Jones and the third Respondent is Mr Timothy Ungar. The three Respondent’s lodged a single Employers Response to the application (the Employers Response) on 24 April 2013. The Employers Response attached a letter of termination of a consultancy agreement, terminating that agreement with effect from 22 February 2013.

[3] The Employers Response made a number of jurisdictional objections and sought dismissal of the application on jurisdictional grounds, including that the Applicant was at no time employed by any of the Respondents’, was not dismissed, and that the Applicant was not a person protected under Part 3.1 of Chapter 3 of the FW Act.

[4] The Employers Response also identified that the application was made outside the time allowed by the FW Act and that the Applicant had not applied for an extension of time nor identified any reasons that could establish exceptional circumstances existed to grant an extension of time. It is not disputed that the application was lodged outside the allowable time.

[5] I conducted a conference on 30 May 2013 where it was agreed that I deal with the extension of time required before the matter proceeded further. It was also agreed that I should determine that matter on the papers from any affidavit evidence and documents that the parties would provide. I issued directions to that effect on 6 June 2013.

[6] This decision therefore deals with whether I should allow for a further period for the application to be lodged other than the 21 days allowed by operation of s.366(1)(a).

[7] The Applicant was represented by Mr Philip Brunner of Lark Lawyers and the Respondent was represented by Mr Heldsinger and with him Ms Maric of HLS Legal.

The submissions and evidence

The reason for the delay and actions taken by the Applicant to dispute the dismissal

[8] The Applicant submitted that the reason for the delay was that he had sought legal advice immediately after receiving his termination notice. His Solicitor Mr Brunner required time to consider and advise the Applicant on the legal issues involved.

[9] The Applicant provided two affidavits which included an outline of the sequence of events leading to the application being lodged. The Applicant telephoned Mr Brunner on the day he was given notice of termination (21 February 2013) and met with him on the actual date of the termination (22 February 2013). He provided Mr Brunner with some documents and was requested by Mr Brunner to provide him with further documents relating to his employment. The Applicant proceeded to send documents to Mr Brunner over the next few days and spoke to him on several occasions. The Applicant also gathered together other documents that he intended to provide to Mr Brunner.

[10] The Applicant met with Mr Brunner on 26 February 2013 and handed over a bundle of documents he had collected. Mr Brunner also advised him that he had been in contact with a Barrister regarding the matter but the Barrister was unable to meet with him until 7 March 2013.

[11] Throughout this period the Applicant was searching for a document from 2006, which Mr Brunner had requested, however he was unable to locate it.

[12] The Applicant provided a medical certificate dated 19 February 2013 that declared him unfit for work from 19 February until 4 March 2013 due to illness. There was no description in the certificate nor any explanation provided of the nature of the illness. On 28 February 2013 the Applicant states that he was feeling unwell again and attended a medical practitioner on that day. A medical practitioner declared the Applicant unfit for work until 15 March 2013. It is unclear whether the Applicant’s condition was such that he could not meaningfully communicate with Mr Brunner or otherwise progress his application to ensure that it was lodged within the time allowed.

[13] Mr Brunner met with Mr David Howlett, a Barrister, on 7 March 2013. Following that meeting Mr Brunner arranged for documents the Applicant had provided him to be provided to Mr Howlett together with a brief overview of the circumstances the Applicant had advised him. The documents were sent to Mr Howlett on 12 March 2013. Mr Howlett advised Mr Brunner on 14 March 2013 that he would not be able to provide advice until somewhere between 18 and 20 March 2013.

[14] The Applicant maintained contact with Mr Brunner throughout this period to keep informed of the progress of the matter. I infer the Applicant’s medical condition did not prevent him from being involved in the progress of his application and from giving instructions in relation to it.

[15] Mr Brunner provided Mr Howlett’s advice and a draft application to the Applicant at about 4 pm on 21 March 2013. Then, shortly afterwards, held a telephone conversation and discussed a mutually convenient time to meet. Mr Brunner was unavailable on 22 March 2013 due to commitments from early morning until about 2 pm. Mr Brunner was then unavailable due to preparation for other proceedings before the FWC. A meeting with Mr Brunner at the earliest mutually convenient date was 25 March 2013. The Applicant postponed that meeting for one day as he felt ill on that morning. They met on 26 March 2013 and the application was lodged on that day.

[16] The Applicant says that the reason for the delay relates primarily to seeking advice and ensuring the Solicitor and Barrister providing advice were provided with sufficient relevant material to give that advice. The actions taken by the Applicant to dispute the dismissal involved a sequence of communications with his Solicitor and in turn by his Solicitor with the Barrister.

[17] The Respondent submitted that the time taken to seek legal advice and for the Solicitor to consider the legal issues were not unusual but rather a regular and normal circumstance confronting Solicitors. They suggest that Mr Brunner had all of the relevant material with the exception of a single document and had been advising the Applicant regarding issues surrounding his employment since 13 February 2013. They suggest that Mr Brunner had a sufficient basis and information to form a preliminary view as to the Applicant’s right to make the application or at least to take steps to protect his position, which he failed to do.

[18] They also point out that the Applicant’s representatives are subject to legal professional conduct rules and through those rules are under a duty to not accept an engagement unless they are in a position to carry out and can deal with the engagement diligently.

[19] The Respondent also refers to the evidence provided by the Applicant and suggests the following can be drawn from that evidence:

● From 27 February to 6 March 2013 (being a period of seven days from day six to day 13 of the limitation period) neither the Applicant nor Mr Brunner appear to have taken any action with regard to the matter. Similarly from the 8 March 2013 10 March 2013 (being day 15 and 17 of the limitation period) no action appears to have been taken.
● After the limitation period which was 14 March 2013 no action appears to have been taken from the 16 to 18 March 2013 and from 23 to 25 March 2013.
● It was not until 19 March 2013 that the Applicant queried Mr Brunner whether he had heard from Counsel and Mr Brunner followed up with Counsel.

[20] The Respondent suggests that the evidence demonstrates that the Applicant’s conduct and that of Mr Brunner illustrates a failure to take timely action and this was a significant contribution to the delay in the application being lodged.

[21] The Respondent also argues that the Applicant adopted a wait-and-see approach with the knowledge that there was a 21 day time limitation which expired on 14 March 2013 and that the delay was not a case of representative error due to the Applicant contributing to the delay.

[22] It is clear that the Applicant’s primary reasons for the delay in lodging the application relate to the actions he was taking to dispute his dismissal. The legal issues surrounding this matter are not straightforward as is evidenced by the jurisdictional grounds that the Respondent has made in objection to the application. This is not a case where it is obvious that the Applicant was employed and nor is it obvious that he was dismissed if he was.

[23] Whether the matter is straightforward or not however is not determinative of whether the application should be allowed.

[24] The Parliament in establishing the time allowed for these matters made no exceptions. The Parliament also provided no opportunity for an extension of time to be able to be provided within the timeframe allowed for lodging these types of applications. The Workplace Relations Act 1996 provided for an application to be lodged within 21 days or such period the Commission allows if the application is made within those 21 days.  1 This provision was not retained in the Fair Work Act 2009 nor reinserted when the timeframe to lodge was reduced from 60 days to 21 days in the Fair Work Amendment Act 2012. One must presume therefore that the Parliament expected all matters to be able to be lodged within the 21 days including where the complexity of a matter might require substantial legal expertise and consideration.

Consideration

[25] The reason for the delay are evident from the paragraphs above. The Applicant sought advice and there was a delay in that advice being provided and considered. However, it seems that the Solicitor acting for the Applicant considered it was necessary to obtain further opinion before providing the advice to the Applicant and the Barrister involved had other commitments that caused part of the delay. The Applicant’s Solicitor also had other obligations and apparently priorities that added to the delays. I do not consider that much weight should be given to the reasons provided for the delay. I do not consider delays in obtaining legal advice should be given much weight in this matter especially where the Solicitor and Barrister involved are both well experienced in matters under the FW Act.

[26] The Applicant did take actions to dispute the dismissal and in particular by seeking legal advice. Those actions taken did create a situation where one should have expected the application to have been lodged in the time allowed. The Applicant also regularly followed up the status of the matter with his representative. Indeed the Applicant appears to have been reasonably diligent in his engagements and follow ups with his Solicitor. These actions by the Applicant do weigh in the Applicant’s favour. However there is no suggestion that either the Applicant or the Solicitor were not aware of the 21 day time frame. Furthermore the Applicant or his Solicitor could have lodged an application within the time limit allowed and either withdrawn it later, or provided more particulars at a later time.

[27] The Respondent will be prejudiced by the application being allowed, however I consider this criteria to be of neutral weight.

[28] There are considerable jurisdictional arguments regarding the application and the Respondent relies on those arguments to support their contentions regarding the merits of it. These arguments include issues such as whether the Applicant was employed by the Respondent’s and whether he was dismissed. There are also arguments about whether the application relates to allegations of conduct and events up to six years ago. The underlying facts in support of the application are strongly contested. I am not inclined to assess the merits of the application through a prism of an assessment of the jurisdictional elements. I therefore also give neutral weight to the merits of the application.

[29] The fairness between the Applicant and other persons in a like position do not weigh in favour of the Applicant. Many applications of this type are made and a significant proportion are made by unrepresented applicants. It is rare for an unrepresented applicant to lodge the application out of time and it would create an unfairness to those persons if represented applicant’s had a time advantage even if only partially because of that representation.

[30] I will not allow a further period for the application to be made as I am not satisfied that there are exceptional circumstances.

DEPUTY PRESIDENT

Appearances:

Mr Brunner for the Applicant

Mr Heldsinger and Ms Maric for the Respondent

Final written submissions:

Applicant 19 August 2013

Respondent 21 August 2013

 1   s.643(14)

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