| [2017] FWC 6996[Note: This decision has been quashed - refer to Full Bench decision dated 16 February 2018 [[2018] FWCFB 1037] |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ian Menzies
v
Lindsay Australia Limited T/A Lindsay Brothers Management P/L
(C2017/6462)
COMMISSIONER RIORDAN |
SYDNEY, 22 DECEMBER 2017 |
Application to deal with contraventions involving dismissal.
[1] Mr Ian Menzies (the Applicant) was employed by Lindsay Australia Limited t/a Lindsay Brothers Management P/L (the Respondent) between 20 August 2017 and 24 October 2017.
[2] The Applicant filed a general protections application on 22 November 2017.
[3] The Fair Work Act 2009, (the Act), provides a statutory timeframe to lodge general protections applications:
Section 366 – time for application
(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).
(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.
[4] The Applicant’s application is out of time and has been referred to me to determine whether there are exceptional circumstances in existence in order to grant an extension of time for the Applicant to lodge his application.
[5] On 4 December 2017, the Respondent’s representative, submitted the Respondent’s F8A response. This documentation was also sent to the Applicant. The covering email stated:
“Dear Registrar,
C2016/6462 Ian Menzies v Lindsay Brothers Management Pty Ltd
We refer to the above matter and confirm that BBW Lawyers act for the Respondent.
Please find attached the following:
1: Notice of Representative Commencing to Act
2: Employer’s response
We note the jurisdictional objection raised in the Employer’s Response and the letter from the Commission to our client dated 24 November 2017 in that regard.
We understand that Directions will be issued shortly in respect of the ‘exceptional circumstances’ argument.
We shall seek leave to appear on behalf of the Respondent at any hearing of the jurisdictional out of time objection.
In the interim, please contact the writer if you require any further information.
Yours sincerely
Russ Baldwin
BBW Lawyers 1
(my emphasis)
[6] The Applicant submitted his submissions, in accordance with the FWC Directions, on 13 December 2017. The covering email, which was also sent to Mr Baldwin, stated:
“Dear Associate
1. Please see Documents pursuant to requirements emailed to the parties 5 December 2017.
2. I have been trying to contact chambers for some days, however, have been told the phone system is not working properly.
I request that I be able to present my case in person rather than over the phone.
I note the Respondent’s represented by special Counsel with a Martin place address. I assume it ought not be onerous for the Respondent.
I am completely opposed to telephone hearings unless contentions are resolved by prior consent which is not the case in this matter.
Kind regards
Ian. D. Menzies” 2
(my emphasis)
[7] On 18 December 2017, I advised Mr Baldwin and the Applicant that I had granted Mr Baldwin leave to appear.
[8] The Applicant has appealed this decision. The reasons why I granted leave for Mr Baldwin to appear are set out below.
[9] Section 596 of the Act states:
Section 596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a) where a person is from a non-English speaking background or has difficulty reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.
(3) The FWC's permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).
(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(ii) an association of employers that is not registered under the Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.
[10] Relevantly section 596(2)(a) provides a discretionary power to the Commission based on the complexity of the matter. The Applicant has raised a variety of unique issues which he alleges were perpetrated by the employer, which resulted in him being subjected to adverse action.
[11] The Applicant has also raised that the amendments to the Act in 2012, where the statutory timeframe for a dismissed employee to submit a general protections application was changed from 60 days down to 21 days, provided an exceptional circumstance.
[12] Further, the Applicant submitted that the Full Bench decision in Nulty v Blue Star Group Pty Ltd 3 where it was held that mere ignorance of the statutory timeframe was not an exceptional circumstance, should not be used as a precedent in these types of matters due to the make up of the Bench.
[13] I note that the Applicant sent his submission on 13 December to the Respondent’s legal representative, Mr Baldwin. Also, as highlighted above, the Applicant’s email raised the issue of appearing in person at the Commission for the jurisdictional hearing where he stated:
“I request that I be able to present my case in person rather than over the phone. I note the Respondent’s represented by special Counsel with a Martin Place address. I assume it ought not be onerous for the Respondent.”
[14] As a result, I formed the view that the Applicant was not opposed to Mr Baldwin appearing in this matter. I approved Mr Baldwin’s application to appear on 18 December 2017.
[15] If the Applicant had objected to Mr Baldwin appearing in his correspondence of 13 December 2017, I would have taken his objection into consideration. Subject to the compelling nature of any argument the Applicant raised, I still would have used my discretion to allow Mr Baldwin to appear, simply because of the complexity of the issues that the Applicant has raised.
[16] For the above mentioned reasons, I exercised my discretion in accordance with section 596(2)(a) of the Act to allow the Respondent to be represented by Mr Baldwin from BBW Lawyers.
COMMISSIONER
1 Email from Mr Baldwin dated Monday, 4 December 2017 11:40am.
2 Email from Mr Menzies dated 13 December 2017 12.37pm
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