[2010] FWA 7836

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Edward Hartig
v
Form 2000 Sheetmetal Pty Ltd
(C2010/5092)

COMMISSIONER RYAN

MELBOURNE, 8 OCTOBER 2010

General protections application - extension of time.

[1] An Application under S.365 of the Act for FWA to deal with a General Protections Dispute involving a Dismissal was filed by the Applicant in this matter on 5 October 2010. The date of dismissal was 23 June 2010.

[2] Section 366 provides that an application under s.365 must be made within 60 days after the dismissal took effect or within such further period as FWA allows under s.365(2).

[3] The application was made 105 days after the date of dismissal.

[4] The application in this matter contained the following in support of the application for an extension of time.

[5] The Applicant had filed an application under s.365 on 24 September 2010 which was within the time set by s.366(1)(a). That application was matter C2010/5026.

[6] That matter was listed for conference under s.368 of the Act on 5 October 2010.

[7] The Respondent’s legal representative wrote to Fair Work Australia on 29 September 2010 in the following terms:

[8] The Respondent’s legal representative wrote to Fair Work Australia again on the 30 September in the following terms:

[9] At the conference conducted by Fair Work Australia on 5 October the Respondent pressed its objection to the application being properly before Fair Work Australia.

[10] The Applicant’s legal representative advised that he had not acted for the Applicant in relation to the Unfair Dismissal application and had only commenced to act for the Applicant in relation to the General Protections application. The Applicant’s legal representative advised that he only became aware of the failure by the Applicant to formally withdraw his Unfair Dismissal application when he received the letter from the Respondent’s legal representative on 29 September and on receipt of that letter he immediately obtained instructions from the Applicant to file the Notice of Discontinuance in the Unfair Dismissal matter.

[11] At the conference on 5 October the Applicant’s legal representative advised that the Applicant would discontinue the application in C2010/5026 and make a new application under s.365. The Notice of Discontinuance and new application was emailed to my chambers and copied to the Respondent during the conference.

[12] The new application (the application in this matter) was clearly out of time and the Respondent advised that it would object to an extension of time being granted. The Applicant advised that they would rely upon paragraph 6 of the application in support of the application for an extension of time.

[13] The Respondent was directed to, and did, file and serve by close of business on 7 October its submissions in relation to the application for an extension of time.

Extension of Time

[14] Section 366(2) provides as follows:

[15] As the Explanatory Memorandum to the Fair Work Act makes clear, the terms of s.366(2) provide “an exhaustive list of the factors FWA must take into account when determining if there are exceptional circumstances.”

[16] I have taken into account each of those factors.

Reason for Delay

[17] The reason for the delay in the making of the current application was that this application was made in consequence of the challenge by the Respondent to the Applicant’s first s.365 application on the basis that the Applicant had started the first s.365 application without formally withdrawing his earlier s.394 application. The relevant chronology of events was set out in the Respondent’s submission as follows:

[18] I note that the Respondent incorrectly identifies the 4th October, rather than the 5th October as the date for the last 2 actions.

[19] The reason for the Applicant not complying with s.588 in discontinuing his unfair dismissal application was that he was unrepresented in relation to that matter.

[20] The Respondent contends that the Applicant’s representative should have been aware that the Applicant’s Unfair Dismissal application had not been discontinued. I am not prepared to make the assumption or draw the inference that the Applicant’s representative should have been aware of the Applicant’s failure to file a Notice of Discontinuance. The Applicant’s representative lodged the Notice of Discontinuance in relation to the s.394 matter on 30 September the day immediately after having received a copy of the Respondent’s letter to the Tribunal dated 29 September 2010. The Notice of Discontinuance was filed before the Respondents second letter was sent to the Tribunal on 30 September 2010. The conduct of the Applicant’s representative suggests that the Applicant’s representative has acted as soon as he became aware of the fact that the Applicant had not filed a Notice of Discontinuance in relation to the s.394 matter.

Any Action taken by the Applicant to Dispute the Dismissal

[21] As the chronology of events makes clear the Applicant took action within 12 days of his dismissal to challenge that dismissal. The Applicant has continued to take action to dispute his dismissal with the second application made under s.365 of the Act on 24 September and the current application being made on 4 October 2010.

Prejudice to the Employer including Prejudice caused by the delay

[22] The Respondent’s contention that it will be prejudiced by the grant of an extension of time relies solely on the assertion that “the Applicant raises fresh issues in his Application for FWA to deal with a General Protections Dispute which was not earlier relied on by the Applicant. The Applicant previously alleged that the termination of his employment was harsh, unjust and unreasonable, but now seeks to allege that it was for other reasons.” The Respondent also relied upon the principle enunciated in the Explanatory Memorandum to the Fair Work Act that the purpose of the provisions of Subdivision B of Division 2 of Part 6-1 of the Act was “to prevent a person double dipping when they have multiple potential remedies relating to a dismissal from employment”.

[23] Whilst the s.365 Application in this matter does raise issues which were not relied on in the earlier s.394 application it is clear that the current s.365 application raises the very same issue and raises it using the very same language as was raised in the first s.365 application.

[24] For the purpose of s.366(2)(c) prejudice cannot be considered to flow against the employer merely because the grounds of an application under s.365 are different from the grounds relied upon in an application under s.394. Something more is required.

[25] In this matter the first s.365 application was filed within the time limits set by s.366(1) and had the Applicant filed the Notice of Discontinuance in the s.394 matter prior to lodging that application the Respondent would have no complaint as to prejudice merely because the s.365 application was different from the earlier s.394 application.

[26] In this matter I cannot discern any prejudice that may flow against the Respondent as a result of the late filing of the second s.365 application when it is in the same terms as the first s.365 application.

Merits of the Application

[27] The Respondent in opposing the extension of time application in relation to this matter relies upon the material put to Fair Work Australia in its Employer’s Response to Application for Unfair Dismissal Remedy as supporting its contention that the Applicant’s employment was terminated for unsatisfactory performance.

[28] The only material before me from the Applicant is that contained in the s.365 application identifying that “The employee was dismissed after disputes arising out of the employee “tagging” unsafe forklift machines in his role as Occupational Health and Safety Officer.”

[29] Given the operation of s.361 of the Act I must start from the presumption that the dismissal was for the reason alleged by the Applicant unless the Respondent proves otherwise. Fair Work Australia is not the place for the Respondent to ‘prove otherwise’.

[30] On the face of the material before me the Applicant’s case has merit just as the Respondent’s case has merit. Fair Work Australia cannot test the merits of either the Applicant’s or the Respondent’s case. Therefore I consider that the merits of the case favour the Applicant at this point of time given the operation of s.361 of the Act.

Fairness as between the Applicant and other persons in a like position.

[31] The Respondent relied upon the decision of Commissioner Cambridge in Helen Wemyss v Mission Australia Employment Services [2010] FWA 1798 to support its contention that:

[32] It is necessary in my view to have regard to the genesis of s.366(2)(e). This phrase was used by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 to describe one of the principles he had discerned from earlier judgements in relation to extension of time applications. Marshall J referred to the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984)3 FCR 344 at 349, which, in relation to the phrase in question, referred to the decision of Shephard J in Wedesweiller and others v Cole and others [1983] FCA 94.

[33] Shephard J was dealing with an application by 153 public servants where the application before him was filed in November 1982, some 11 months out of time. However other matters involving a further 190 public servants and the same issue had been filed in early 1982 and although some of the earlier applications were filed out of time orders by consent had been made for an extension of time.

[34] In granting the extension of time for the later applications, Shephard J said:

[35] To properly take into account the criteria set out in s.366(2)(e) in the context of the present matter it is necessary to consider persons in a like position to the Applicant. The Respondent’s written submission does not do that. The Respondent’s focus on performance issues ignores the issue that this application alleges that “The employee was dismissed after disputes arising out of the employee “tagging” unsafe forklift machines in his role as Occupational Health and Safety Officer.” There is nothing before me which identifies any other employee or employees of the Respondent who are in a like position to the Applicant.

[36] In the circumstances of this matter this criterion provides little assistance to the resolution of the issue before the Tribunal. In the absence of any evidence about the treatment of other employees of the employer who are in a like position to the Applicant I have decided to treat this factor as being neutral.

Conclusion

[37] Having taken into account all of the circumstances surrounding the chronology of events since the termination of the employment of the Applicant was effected by the Respondent and having taken into account each of the criteria set out in s.366(2) I am satisfied that there are exceptional circumstances which allow me to extend the time in which the application in this matter can be made and I determine that the time for making the Application in this matter is extended until and including the 5th October 2010.

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