Transport Workers Union of Australia v Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services

[2010] FWA 9622

[2010] FWA 9622

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Transport Workers’ Union of Australia
v
Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services
(C2010/5074)

COMMISSIONER BISSETT MELBOURNE, 15 DECEMBER 2010

Application to deal with contraventions involving dismissal.

[1] The Transport Workers’ Union of Australia (TWU), on behalf of its member Mr Boston, has made an application under s.365 of the Fair Work Act 2009 (the Act) for Fair Work Australia to deal with a contravention of the general protection provisions of the Act involving a dismissal.

[2] Mr Boston was dismissed from his employment on either 28 July or 2 August 2010. The timing of the dismissal is important.

[3] In the first instance Mr Boston lodged an application under s.364 of the Act seeking relief from unfair dismissal. He had lodged that application within the 14 day time limit required under the Act. I understand that matter proceeded to conciliation. At or not long after that conciliation Mr Boston discontinued that application.

[4] On 1 October 2010 the TWU lodged the application the subject of these proceedings.

[5] The Respondent in this matter - Veolia Environmental Services (Australia) Pty Ltd t/as Veolia Environmental Services (Veolia) - has raised a jurisdictional objection to Fair Work Australia dealing with the matter on the basis that the application was lodged outside the 60 day time limit provided for under the Act.

[6] A conference of the parties was held on 20 October 2010. At that time the parties agreed that the jurisdictional matters should be dealt with by written submissions and a decision made ‘on the papers’. I subsequently issued directions for the filing of material by the parties.

[7] This decision goes to the matter of whether the application was made within the prescribed time limit and, if it was not, whether I should exercise my discretion to extend the period for lodging the application.

Statutory framework

[8] The filing requirements for an application under s.365 of the Act are:

366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA 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.

[9] The basis on which Fair Work Australia may allow an extension of time for the making of the application is the same as that which applies to an application for an extension of time to make an application for an unfair dismissal remedy, except that in a general protections matter there is no requirement to consider when the employee first became aware of the dismissal after it had taken effect (see s.394(3)(b)).

[10] The Applicant says the application was made within time but that, if it wasn’t, I should exercise the discretion available and extend the time for lodging the application.

What was the date of termination of Mr Boston’s employment?

[11] The application was lodged on 1 October 2010. Sixty days prior to this is 2 August 2010. If Mr Boston was dismissed prior to 2 August 2010 the application is out of time.

[12] The TWU contends that Mr Boston did not receive advice of the termination of his employment until 2 August 2010, when a letter of termination was received in the mail. This, it says, is the earliest date of his termination. Their alternative submission is that, given his final payslip 1 indicates it is for the period 26 July - 1 August 2010, with the pay date of 4 August 2010, the date of termination is therefore 4 August in which case the application is within time.

[13] The alternative argument can be dispensed with quickly. The pay period indicated on a system generated pay slip along with the pay date is no indication of the date of termination of employment. It is no more than an indication of the pay period and the date payment of wages would be made. These dates would appear on all pay slips issued to employees. On this material the date of dismissal is not 4 August 2010.

[14] The Respondent submits that:

• On 28 July the Respondent wrote to Mr Boston advising of the termination of his employment;



• On 29 July the Respondent deposited into Mr Boston’s bank account via electronic funds transfer his termination payment including notice;



• Following a call from Mr Boston’s wife on 29 July 2010 a copy of the letter of termination of employment was faxed to a fax number provided by Mrs Boston on that day;



• On 30 July Mr Sandall of the TWU rang Ms Walter of the Respondent seeking to discuss the ‘unlawful termination of Dale Boston.’ Ms Walter sent an email to this effect to another representative of the Respondent advising the call had been received. 2

[15] The Respondent provided with their written submission evidence of the letter sent, the pay slip, the fax and the email from Ms Walter.

[16] The TWU does not dispute the dates and chronology outlined above. It does maintain however that the dismissal did not take effect until 2 August 2010, when there was formal notification to the employee of the dismissal. 3

[17] I find no basis for the submission of the TWU. I find that the date of termination of Mr Boston’s employment is at the latest 30 July 2010. Mr Boston and the TWU were both aware of the termination of Mr Boston’s employment by this date.

[18] On the basis of this finding the application is out of time.

Statutory considerations

[19] Given my finding that the application is out of time I must now consider each of the matters under s.366(2) to determine if I should grant an extension of time.

The reason for the delay

[20] Mr Boston first lodged an unfair dismissal application on 3 August 2010 (within time). This was the subject of a conciliation conference on 27 August 2010. At this conference some advice is said to have been given by the conciliator that Mr Boston consider lodging a general protections application. The reasons for this suggestion are not known.

[21] The Applicant submits that on 6 September Mr Boston’s father-in-law died suddenly, with the funeral held in Canberra on 9 September.

[22] On 14 September Mr Boston’s wife was hospitalised as an emergency patient. Although his wife was only in hospital for a few days, Mr Boston needed to take time off from his employment to care for her during her recovery.

[23] On 24 September Mr Sandall, the TWU official responsible for the matter, was hospitalised on short notice. He remained on sick leave well past the 60 day period.

[24] The Respondent says that there is no explanation for the failure of Mr Boston to lodge the application between 27 August and 6 September, that there is no information on when Mr Boston returned from Canberra or how long he cared for his wife, and in any event no explanation as to the failure to lodge materials within this period.

[25] The Respondent also submits that the illness of Mr Sandall does not create an ‘exceptional circumstance’ as the TWU is a large organisation which should be able to provide assistance to its member when a particular official is absent.

[26] The Applicant says in reply that Mr Boston cared for his wife for some 10 days from 14 September.

[27] The Applicant further submits in reply that there was confusion arising from the conciliation of the unfair dismissal matter such that the Applicant and Mr Boston had to consider legal ramifications and issues associated with changing to a general protections application following on from 27 August, and that this consideration was then affected by the death of Mr Boston’s father-in-law.

[28] Whilst there is no satisfactory explanation for the periods when Mr Boston and the TWU could have taken action to lodge Mr Boston’s general protections application it would appear that the fault rests with Mr Boston’s representative. The TWU was Mr Boston’s representative in his unfair dismissal application and is, in fact, the applicant in this matter as Mr Boston’s representative. That they were acting for him at all times is without doubt.

[29] I find that Mr Boston had, at all times, left the matter in the hands of the TWU to deal with. It is clear that at the time his employment was terminated he very quickly contacted the TWU and the TWU has represented him in this matter.

[30] Whilst I would expect that the TWU should be aware of the time limits applicable to the lodging of applications I cannot lay blame with Mr Boston for the delay. I cannot ignore however the hospitalisation of the relevant TWU official (Mr Sandall). Mr Boston should not be disadvantaged by Mr Sandall’s illness.

[31] Representative error was considered by a Full Bench of the AIRC in Clark v Ringwood Private Hospital. 4In that matter, on the question of representative error, the Full Bench found that

the following general propositions should be taken into account in deciding whether or not representative error constitutes an acceptable explanation for the delay:

(1) Depending on the circumstances, representative error may be a sufficient reason to extend time within which an application for relief may be lodged...

(2) 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...

(3) 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.

(4) 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...

[32] In all of the circumstances I find that there was a reasonable explanation for the delay in lodging the application. Mr Boston’s representative was attended by illness causing some delay beyond the control of Mr Boston whilst Mr Boston himself had a number of personal matters that he had to attend to including the death of his father-in-law and the illness of his wife. Mr Boston took reasonable steps to ensure that matters associated with the termination of his employment were attended to by his representative.

Any action taken by the person to dispute the dismissal

[33] The Applicant submits that the termination was contested and that this is evidenced by the filing of the unfair dismissal claim.

[34] Whilst the Respondent does not disagree that Mr Boston disputed his dismissal it says that the decision to withdraw that application when there was no jurisdictional barrier to proceeding goes against any finding of exceptional circumstances.

[35] I find that Mr Boston has taken action to dispute the dismissal.

Prejudice to the employer (including prejudice caused by the delay)

[36] The Respondent says that upon withdrawal of the unfair dismissal claim it considered the matter settled. There is therefore a prejudice to the Respondent in having an extension of time granted. It relies on the decision in Lane v Kangaroo Island Dive & Adventures Pty Ltd. 5 In that matter O’Callaghan SDP found that the granting of an extension of time would cause prejudice. Alternatively it submitted that the absence of prejudice is not a reason to grant an extension of time.6

[37] Beyond any inconvenience, the Respondent has put nothing to me on the prejudice that it says it will suffer if the extension of time is granted.

[38] The Applicant however has submitted that there can be no prejudice to the employer as it was well aware from the conciliation conference that the Applicant may pursue a general protections application.

[39] The extension of time sought is minimal. In the circumstances, and given that the employer was aware such an application may have been made I do not find any prejudice will arise as a result of the granting of the application.

The merits of the application

[40] The Respondent says there is no relationship between the reason for the dismissal of Mr Boston and adverse action provisions of the Act. Whilst I accept that this is its view I do not have enough information before me to make a determination of the merits of the case.

[41] I make no specific finding on the merits of the case.

Fairness as between the person and other persons in a like position

[42] Issues of fairness between Mr Boston and others in a like position provide little assistance. The circumstances of the delay in lodging are the key determinants in this matter. There are others in like positions to Mr Boston who have had an extension of time granted and others who have not.

Are there exceptional circumstances

[43] The basis on which I must decide if an extension of time should be granted is whether there are ‘exceptional circumstances’ taking into account those matters considered above.

[44] The term ‘exceptional’ has been considered in a number of decisions of Fair Work Australia. The Full Bench in Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers 7 found that

[t]he word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act. 8

[45] By the same reasoning there is no reason to give the term ‘exceptional’ any other meaning for the purposes of s.366 of the Act.

[46] I have found above that there was a valid reason for the delay based on representative error. I also found that Mr Boston had taken positive (and not out of time) steps to contest his dismissal by lodging a s.364 application for an unfair dismissal remedy. At the time of the conciliation conference some advice appears to have been given that Mr Boston should consider a general protections application. The reason this advice was given is not known. There was however some consideration of this by Mr Boston and his representative and the legal issues associated with making such an application.

[47] At the same time the application under s.365 of the Act should have been made a number of personal issues confronted Mr Boston - the death of his father-in-law and the illness of his wife.

[48] There has been in this matter a confluence of circumstances that, when considered together (and they should not be seen in isolation), lead me to conclude that there are exceptional circumstances such that an extension of time is warranted.

Conclusion

[49] I therefore find that the time for lodging the application for a general protections claim involving dismissal should be extended until 1 October 2010. An order to this effect will be issued.

[50] In granting the extension of time I make no finding as to the merit of the application in any way.

[51] The matter will be listed for conference as soon as is practicable.

COMMISSIONER

Final written submissions:

Applicant: 1 December 2010.

Respondent: 26 November 2010.

 1   A copy of Mr Boston’s payslip was attached to submissions.

 2   Veolia submission 26 November 2010.

 3   TWU reply submission 1 December 2010

 4   AIRC Print P5279 (22 September 1997).

 5   [2010] FWA 3939 (25 May 2010).

 6   Chacko v Compass Group (Australia) Pty Ltd[2010] FWA 7418.

 7   [2010] FWAFB 7251 (17 September 2010).

 8   [2010] FWAFB 7251 (17 September 2010), [5].

Printed by authority of the Commonwealth Government Printer

<Price code C, PR505017>