Coetzee v Regional Power Corporation [2014] FWC 6361 (24 September 2014) [2014] FWC 6361 [Note: An appeal pursuant to s.604 (C2014/6786) was lodged against this decision - refer to Full Bench decision dated 19 February 2015 [ [2015] FWCFB 1208 ] for result of appeal.] FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Abraham Jacobus Coetzee v Regional Power Corporation T/A Horizon Power Corporation (U2014/8107) DEPUTY PRESIDENT MCCARTHY PERTH, 24 SEPTEMBER 2014 Application for relief from unfair dismissal. [1] Mr Abraham Coetzee (the Applicant) lodged and Unfair Dismissal Application (the Application) on 30 June 2014. The Applicant asserts that he was unfairly dismissed from his employment with Horizon Power Corporation (the Respondent). The Applicant states that the dismissal took effect on 20 February 2014. The Application was therefore well beyond the time allowed by the Fair Work Act 2009 (the FW Act) for lodging an unfair dismissal application. [2] The reason for the delay and reasons why the Fair Work Commission (FWC) should accept the Application out of time were stated in the Application as follows: “1. When the dismissal took effect I went online and checked the WA State Government’s legal assistance site and was directed to the WAIRC [Western Australian Industrial Relations Commission]. 2. I was in email contact with registry staff at the WAIRC on the 10 th March 2014 and lodged an application B61 of 2014 on the 17 th March 2014 which I thought was for an unfair dismissal case. 3. The matter came before Commissioner Kenner of the WAIRC on the 17 th June 2014 and he explained that I was in the wrong jurisdiction and allowed me to discontinue that application and an order issued that day. 4. Since then I have tried to contact lawyers to assist with my case. 5. I was eventually able to contact Workclaims Australia on Friday the 27 th June 2014. After receiving advice I instructed that firm to issue this application which it did on the following Monday the 30 th June 2014. 6. I disputed the dismissal at the time it occurred and made that clear in my application to the WAIRC. 7. I am out of time because of the advice I received from the registry staff at the WAIRC who thought that as the respondent was effectively a state government entity, the correct jurisdiction was the WAIRC. However that turned out to be an error. 8. These circumstances constitute exceptional circumstances.” [3] The representative for the Applicant, Workclaims Australia, provided detailed submissions. Those submissions made a number of assertions and explanations some of which were as follows. “The reason for the delay 1. The applicant’s unfair dismissal application was filed out of time in the [FWC] because he originally submitted an application in the wrong jurisdiction. The applicant submitted an application to the western Australian Industrial Relations Commission [the WAIRC], unaware that this Tribunal was not able to determine his claim. 2. The reason he contacted the WAIRC was that he identified his employer as the state government as he thought that Horizon Power was simply part of the WA Government structure. When he contacted the WAIRC, staff there sent the forms for that jurisdiction, which he completed, filed and served. ... Any action taken by the person to dispute the dismissal ... 5. The applicant filed documents in the WAIRC and served these on the employer in late March 2014. The employer filed a detailed response through its solicitors Clayton Utz. 6. The applicant states he initially contacted the WAIRC regarding his dismissal and they informed him that he had to file his application within 28 days which he did. The application proceeded to a directions hearing on 17 th June 2014 when Commissioner Kenner informed the applicant that the WAIRC did not have jurisdiction and an order issued that the application was discontinued. 7. The applicant resides in Karratha and had difficulty finding legal help. He contacted Workclaims Australia on the 26 th June 2014 and his application was filed on the 30 th June 2014 immediately after the intervening weekend.” [4] The Respondent lodged submissions objecting to the Application being allowed. Included in the submissions by the Respondent were the following: ● The Applicant did not lodge an unfair dismissal claim at all in the WAIRC but rather a claim for denial of contractual benefits (the Contractual Benefits Application) pursuant to s.29(1)(b)(ii) of the Industrial Relations Act 1979 (WA) (the WAIR Act). ● The Respondent filed a Notice of Answer and Counter Proposal (the Answer) to the Contractual Benefits Application on 24 April 2014. Included in the Answer were the following: “5. ... (b) The applicant has attempted to make an unfair dismissal claim, which is outside the Commission’s jurisdiction, in the guise of a claim for denial of contractual benefits” ... 14. As noted above, an industrial agreement did apply to the Applicant’s employment, specifically the Horizon Power ASU Salaried Employees Enterprise Agreement 2013. This Agreement was registered with the Fair Work Commission under the Fair Work Act 2009 (Cth) (FW Act). 15. In addition, an award also applied to the Applicant’s employment, being the Electrical Power Industry Award 2010. This modern award was made by the Fair Work Commission under the FW Act. ... 24. In the event that the Applicant had filed an unfair dismissal application with the Commission pursuant to section 29(1)(b)(i) of the IR Act, the Respondent would have objected to the application on the grounds that the Commission does not have jurisdiction to hear the application, as the Respondent is covered by the federal industrial relation system. 25. Specifically, the Respondent is a trading corporation and as such falls with the coverage of the FW Act.” [5] As it was unclear to me what actions the Applicant had taken in the WAIRC I examined the file of the WAIRC. The file reveals the following: ● It appears from the file that the Applicant lodged both a Form 2 –Unfair Dismissal Application and a Form 3 – Contractual Benefit Application on 17 March 2014. There are two stamped applications on the file. ● There is a file note for the same day stating that someone from the WAIRC called the Applicant in relation to the Unfair Dismissal Application and the remedy he was seeking, which was a claim for allowances. The WAIRC explained to the Applicant the procedures for filing a Contractual Benefit Application and advised the Applicant that he was not covered by an Agreement, but was covered under a contract. The Applicant advised the WAIRC that he did not wish to proceed with the Unfair Dismissal Application, but instead wanted to proceed with the Contractual Benefit Application. ● The WAIRC confirmed in the file note that the Contractual Benefits Application had been received, the filing fee had been paid and a stamped copy of the Application and the information packs in relation to service had been provided to the Applicant. The file note also indicates that the Unfair Dismissal Application had been placed on the file for the Contractual Benefits Application as the Applicant was not proceeding with it. [6] The reason proffered by the Applicant for the delay was that he unknowingly lodged an unfair dismissal application in the WAIRC rather than the FWC. I consider this explanation is disingenuous. The Applicant appears to have lodged an unfair dismissal claim in the WAIRC but almost immediately decided not to proceed with it. Whilst some of the information provided to the Applicant by the WAIRC Officer might have been incorrect (for example that he was covered by an agreement) it appears that the Applicant was aware that he abandoned his unfair dismissal application and made not further endeavours to dispute his dismissal until after the WAIRC conference in June. [7] It was pointed out to the Applicant in the Respondent’s Answer to the WAIRC application that his employment was governed by two FWC instruments and that if he was intending to pursue an unfair dismissal claim then it should have been lodged in the FWC. Having apparently decided not to proceed with his unfair dismissal claim in the WAIRC the Applicant took no action in the FWC until this Application was lodged. There is no explanation of the delay between the Respondent informing him on 24 April 2014 that the FWC was the correct jurisdiction for any unfair dismissal claim he may wish to pursue. It does not appear the Applicant took any action between 24 April 2014 and the WAIRC conference on 17 June 2014. [8] It is clear that the Applicant was on notice from 24 April 2014 that if he was pursuing an unfair dismissal claim then it was outside the jurisdiction of the WAIRC and within the jurisdiction of the FWC. Despite this the Applicant for whatever reason did not lodge the Application in the FWC until after a conference had been held in the WAIRC on 17 June 2014. I do not accept that there was any reasonable reason for the delay and certainly not one that could weigh in favour of a finding of the existence of exceptional circumstance. [9] It is not in dispute that the Applicant became aware of his dismissal on the day it took effect. [10] The Respondent has already suffered prejudice in the form of time, expense and resources devoted to the WAIRC application. Further expense and resources will cause further prejudice to the Respondent. The prejudice to the Respondent weighs slightly against a finding of an exceptional circumstance. [11] This does not appear to me to be a case with any likely prospects of succeeding. The Applicant was employed on a fixed term contract the term of which was due to expire on 31 March 2014. The fixed term contract contained an early termination clause which the Respondent invoked on 20 February 2014. He was paid four weeks in lieu of notice. As an aside even if the Applicant were successful in his claim for unfair dismissal a likely outcome would be payment of remuneration between 20 February 2014 and 31 March 2014 less four weeks pay. Furthermore, the Respondent appears to have strong grounds in support of their contention that the dismissal was a case of genuine redundancy. The merits of the Application weigh against a finding of an exceptional circumstance. [12] I consider it would be unfair between this Applicant and other persons in a similar position if the Application were allowed. [13] I find that exceptional circumstances do not exist. I therefore refuse to allow the Application. The Application is dismissed. DEPUTY PRESIDENT Final written submissions: Applicant, 24 July 2014 Respondent, 31 July 2014 Printed by authority of the Commonwealth Government Printer <Price code A, PR555378>