Trevor Howell v ActivateRail Pty Ltd
[2024] FWC 2667
•26 SEPTEMBER 2024
| [2024] FWC 2667 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Trevor Howell
v
ActivateRail Pty Ltd
(U2024/9488)
| COMMISSIONER ALLISON | MELBOURNE, 26 SEPTEMBER 2024 |
Application for an unfair dismissal remedy - extension of time
ActivateRail Pty Ltd (ActivateRail) provides rail safety services to organisations in the rail industry. Mr Howell has worked with ActivateRail or its sister company in a variety of roles since May 2019. At the time of his termination Mr Howell was engaged as a senior technical expert in the role of Manager – Major Projects.
On 23 July 2024, ActivateRail summarily dismissed Mr Howell for serious misconduct. The alleged serious misconduct related to Mr Howell’s use of “simulated evidence shifts” for the purpose of obtaining an important work qualification (an “inner suburban certificate”). ActivateRail found that the use of simulated evidence shifts as opposed to conducting physical on-site shifts amounted to, amongst other things, providing false information and falsification of documentation.
Mr Howell believes his termination is unfair. Amongst other things, Mr Howell argues it was reasonable for him to assume he could use simulated evidence shifts for the purpose of obtaining his inner suburban certificate. Mr Howell points to the fact that the simulated evidence shifts were signed off by senior employees including the General Manager and the Training Co-ordinator.
Mr Howell filed an unfair dismissal application on 14 August 2024.
An application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect.”[1] If an application is not made in this time frame, it is out of time and will generally be dismissed. The only exception to this is when the Commission is satisfied that exceptional circumstances exist,[2] and the Commission chooses to exercise its discretion under s.394(3) of the Act to extend the period for the application.
Mr Howell’s application was received by the Commission one day out of time. This decision considers whether exceptional circumstances exist that warrant the Commission exercising its discretion under s.394(3) to extend the period for Mr Howell’s unfair dismissal application.
Relevant Dates, Legislation and Legal Principles
The parties agree, and I find, that Mr Howell’s employment was terminated effective 23 July 2024. This is confirmed in the termination letter presented to Mr Howell on 23 July 2024.
For Mr Howell’s application to have been made within the appropriate time (i.e. 21 days after the dismissal took effect), it needed to have been made by midnight on 13 August 2024. The application was filed in the Commission on 14 August 2024 and is one day late.
For Mr Howell’s unfair dismissal application to now proceed, it is necessary for him
to obtain an extension of time in which to make the application. Section 394(3) of the Fair Work Act 2009 (Cth) provides that the Commission may exercise discretion to allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
the reason for the delay;
whether the person first became aware of the dismissal after it had taken effect;
any action taken by the person to dispute the dismissal;
prejudice to the employer (including prejudice caused by the delay);
the merits of the application; and
fairness as between the person and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
The meaning of the term ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[4] It is accepted that 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, can be considered exceptional.[5]
I will now consider each of the matters under s.394(3).
Considerations under s.394(3)
What was the reason/s for the delay?
Mr Howell provided three interrelated reasons for the delay.
Miscalculation of Deadline
Mr Howell prepared his own application and miscalculated the date of lodgement by one day.
In relation to this reason for delay ActivateRail argued that not having legal representation is not an adequate reason for delay. ActivateRail submitted that Mr Howell was accustomed to working with procedures and requirements at ActivateRail and should have been able to submit an unfair dismissal form within the required timeframe.
Mental Health
Mr Howell has a history of mental health issues, including suffering a significant mental breakdown in 2021.
Mr Howell gave evidence that while he is usually able to manage his mental health condition, the dismissal exacerbated his condition. This is supported by medical evidence from Mr Howell’s doctor. In his written statement and oral evidence Mr Howell identified three main impacts his mental health had on the filing of his application:
After termination Mr Howell struggled to do anything for about a week;
Mr Howell was finding it difficult to process his situation, so accordingly he sought legal advice;
His mental state led him to miscalculate the 21-day timeframe, which is not something he would do in his normal state.
ActivateRail argues that Mr Howell’s mental health does not adequately explain the delay. ActivateRail argues in effect, that Mr Howell had ample opportunity to digest his situation prior to termination because of the investigation process conducted by ActivateRail. In addition, ActivateRail contends that Mr Howell performed other actions during the 21-day time period, including seeking legal advice, meeting ActivateRail employees to return company property, and making enquiries about other work, which show Mr Howell was capable of lodging an unfair dismissal application. ActivateRail submits that ultimately, the fact that Mr Howell completed and lodged his own application shows that his mental health was no bar to him lodging his unfair dismissal application in time.
Attempts to Seek Legal Advice
About a week after his termination, Mr Howell started to consider options regarding his termination, including visiting the Fair Work Commission website. Mr Howell gave written and oral evidence that he sought legal advice about his termination because he did not feel he had the necessary experience to respond to his termination, and because, given his mental state, he believed it would help him digest his situation.
Mr Howell contacted a few law firms and initially struggled to secure an appointment. Eventually, he successfully attended a paid initial consultation with a lawyer on Friday 9 August 2024, the 16th day after his dismissal. The lawyer reviewed his case and advised that they would send Mr Howell a costs agreement for their services if he wished to pursue the matter. In that meeting, the lawyer confirmed with Mr Howell that his unfair dismissal application must be made within 21-days, but did not specifically tell Mr Howell that the 21-day timeframe meant his application needed to be lodged the following Tuesday, 13 August 2024.
On Tuesday 13 August 2024, the lawyer sent Mr Howell an email regarding his unfair dismissal application and a costs agreement. Both documents were tendered as evidence. Despite the costs agreement being sent on the last day of the 21-day timeframe, there is no reference in the agreement, or the cover email to the fact that Mr Howell’s unfair dismissal application needs to be lodged that very day to be filed in time. Mr Howell ultimately decided not to proceed with the lawyer, but to file his own unfair dismissal claim.
ActivateRail argues that Mr Howell’s attempt and subsequent decision not to engage legal representatives does not provide exceptional circumstances. The unfair dismissal jurisdiction does not require legal representation and meeting the 21-day time frame was at all times, Mr Howell’s responsibility.
Consideration – Reasons for Delay
The delay is the period commencing immediately after the end of the 21-day period to file an unfair dismissal application, although circumstances arising prior to the delay may be relevant to the reason for the delay.[6] In this matter, I consider it is necessary to take into account circumstances arising prior to the filing deadline that may be relevant to the reason for the one day delay. On the material before me I find that the reasons for delay related to a combination of Mr Howell’s inaccurately calculating the 21-day time frame, Mr Howell’s mental health issues and the failure of Mr Howell’s prospective lawyer to identify 13 August 2024 as the final date for filing the application.
It should be said upfront that generally miscalculating the day for lodging an unfair dismissal is not an adequate reason for delay. Ignorance of the unfair dismissal jurisdiction and the statutory time limit is not considered an exceptional circumstance.[7] I also accept ActivateRail’s arguments that the unfair dismissal jurisdiction does not require legal representation and it is the responsibility of the unrepresented applicant to file on time.
However, when I consider the whole factual matrix before me, I am of the view that Mr Howell’s mental health issues, combined with the actions of the lawyers Mr Howell consulted, contributed to Mr Howell’s erroneous belief regarding the date of lodgement.
While Mr Howell’s medical condition may have led him to miscalculating the lodgement date, there was not enough evidence before me to make this finding. Rather Mr Howell’s medical condition is important contextually. I accept the medical evidence that the termination exacerbated his mental health condition. I further accept that after a week of not being able to do anything because of his mental health, Mr Howell decided to seek legal advice, in part, because his mental health condition made it difficult for him to process his situation and understand next steps. Seeking legal advice in this context seems a very sensible step.
It is relatively uncommon for an applicant to first seek legal advice, then to ultimately choose not to instruct the representative to file on their behalf, and to file the application late themselves. In these circumstances, the mere fact that the applicant chose at a late stage to prepare and file the application themselves does not constitute a valid reason for the delay. For example, in Samantha Jo Peters v Liquorland (Australia) Pty Ltd,[8] the applicant was given clear advice by her union regarding the filing deadline, but proceeded to file her claim one minute out of time. In this case the applicant was not granted an extension.
However, in the circumstances before me, the legal advice Mr Howell received did not specifically address the fundamental issue of date of lodgement. I accept Mr Howell’s evidence that at the initial consultation on Thursday 9 August, while the lawyer highlighted the 21-day limit – they did not specify that the 21 days expired the following Tuesday 13 August 2024 (and thus did not challenge Mr Howell’s erroneous miscalculation). Even more significantly, on Tuesday 13 August 2024, the law firm sent Mr Howell an email and proposed costs agreement to act for him with no reference to the fact that it was the last day for Mr Howell to file his application in time.
This is a significant omission. In my view, it was incumbent on the lawyer to make it clear to Mr Howell if he was going to file an application, whether through them or not, he needed to act on 13 August 2024. Mr Howell may have decided to proceed with the law firm and still been out of time because the lawyers had not emphasised the lodgement date. In these circumstances, I find that the lawyer’s omission in failing to specify the lodgement date contributed to the delay.
Taking into account all the material before me, I am of the view that Mr Howell has an acceptable reason for a one-day delay, and that this weighs in favour of a finding of exceptional circumstances.
When did Mr Howell first become aware of his dismissal?
The parties agree and I find that Mr Howell was made aware of his dismissal in a face-to-face meeting on 23 July 2024, and he was provided with his termination letter on that date.
I am satisfied that Mr Howell had the full benefit of the 21 days to file his application. Accordingly, this matter does not weigh for or against a finding of exceptional circumstances.
Did Mr Howell take any action to dispute the dismissal?
The parties agree that Mr Howell disputed his dismissal throughout the investigation process leading to his termination. It is also clear on the evidence before me that after the dismissal Mr Howell intended to dispute his dismissal, and took proactive steps to this end including seeking legal advice regarding his termination and visiting the Fair Work Commission website. While I find Mr Howell took action to dispute his dismissal, none of these actions put the Respondent on notice that he intended to dispute the dismissal. Accordingly, I find this matter weighs marginally in favour of a finding of exceptional circumstances.
Will ActivateRail suffer any prejudice because of the delay?
Neither party submitted that ActivateRail would suffer any prejudice because of the delay.
This factor weighs neither for nor against a finding of exceptional circumstances.
What are the merits of Mr Howell’s unfair dismissal application?
The background to the unfair dismissal application has been briefly outlined at [1]-[3] above. At the crux of the matter is whether it was reasonable for Mr Howell to use simulated evidence shifts to obtain a significant work qualification (an inner suburban certificate) required by a critically important client.
Mr Howell argues simulated evidence shifts were an accepted practice at ActivateRail (and in the industry) and/or that there were no clear policies or training suggesting he should not use simulated evidence shifts. Mr Howell points to the fact that senior employees including the General Manager and the Training Co-ordinator signed off on his simulated evidence shifts.
Mr Howell further argues he never intended to deceive or falsify records, and his actions were conducted in good faith believing he was following appropriate procedures.
ActivateRail argues that simulated evidence shifts are not recognised by ActivateRail as a legitimate way to obtain an inner suburban certificate, and this was, or should have been, clear to Mr Howell. ActivateRail argue that by using simulated evidence shifts Mr Howell provided false information and falsified documents. A thorough investigation was conducted, and the investigation found Mr Howell’s actions amounted to serious misconduct and was in clear breach of his employment agreement and ActivateRail’s policies and procedures. Other employees, including the General Manager and Training Co-ordinator were also disciplined in relation to the incident.
Ultimately, the merits of Mr Howell’s case turn on contested points of fact, particularly around practice and policy relating to the simulated evidence shifts. Evidence in respect of these contested points would need to be heard and weighed in a hearing of this matter, if an extension of time were granted. It is well established that it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of an extension of time hearing.[9]
However, it is not uncommon for the Commission to proceed to make factual findings on the basis of agreed or uncontested facts.[10] One currently uncontested fact is that senior employees including the General Manager and the Training Co-ordinator signed off on Mr Howell’s simulated evidence shifts. This uncontested fact alone is by no means conclusive in relation to Mr Howell’s case, indeed, ActivateRail have indicated that the General Manager and the Training Co-Ordinator were disciplined in relation to this matter. But the fact that the General Manager and the Training Co-Ordinator signed off on the simulated evidence shift - on the face of it - appears to support a strong arguable case for an unfair dismissal claim.
As a result, this matter weighs in favour of a finding of exceptional circumstances.
Fairness as between Howell and other persons in a similar position?
Mr Howell argued that other employees who were involved in the “simulated evidence shifts”, were not treated the same as him. ActivateRail argued that other employees had been disciplined according to their level of involvement in the misconduct. Ultimately these are contested matters that go more to the merits of the case than this matter.
Neither party brought to my attention any example of another employee who was dismissed in similar circumstances and had sought to bring an unfair dismissal application. No other relevant matter concerning this consideration were raised and I am unaware of any relevant matter. This matter weighs neither for nor against a finding of exceptional circumstances.
Conclusion – Taking the above matters into account, are there exceptional circumstances justifying an extension of time?
I will now take into account all the matters under s.394(3) to determine if I am satisfied there are exceptional circumstances. For the reasons given above, I have found that Mr Howell’s reasons for delay weigh in favour of a finding of exceptional circumstances. I have also found the action Mr Howell took to dispute the dismissal and the merits of the case weigh in favour of a finding of exceptional circumstances. I have found that the Respondent suffered no prejudice from the delay and that this, and all other matters are neutral.
Taking into account all of the matters under s.394(3) and all circumstances of this matter I am satisfied, that on balance, there are exceptional circumstances. Accordingly, I have decided I should exercise my discretion to allow a further period of time for Mr Howell’s application to be made.
The application will proceed to a merits hearing. I will set the matter down for a case management conference.
COMMISSIONER
Appearances:
M Howell, Applicant
S Pascoe for the Respondent
Hearing details:
2024
16 September
Melbourne
[1] Fair Work Act 2009 (Cth) s.394(2) (‘the Act’).
[2] With reference to matters set out in s.394(3) of the Act.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, 5 [13].
[5] Ibid, 5 [13]; Stogiannidis [38].
[6] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[8] [2024] FWC 1867.
[9] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36]
[10] Clarke v Uniti Group Ltd[2023] FWCFB 133, [25].
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