[2010] FWA 2480 Download Word Document FAIR WORK AUSTRALIA DECISION Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Mr Markos Wilson v Woolworths (C2010/2552) SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 15 APRIL 2010 Extension of time application – exceptional circumstances – purportedly inaccurate advice from Fair Work Australia – comparison with persons in like circumstances [1] This matter concerns an application by Mr Markos Wilson (“ the Applicant ”) for Fair Work Australia (“ FWA ”) to allow his application made under s.365 of the Fair Work Act 2009 (“ the FW Act ”) despite it not being made within the stipulated time period of 60 days. [2] The Applicant’s application was made 15 days beyond the statutory time period under s.366(1)(a) of the FW Act. Section 366(1)(b) of the FW Act makes it clear however, that FWA may allow an application not made in conformity with s.366(1)(a) of the FW Act subject to various conditions being satisfied. [3] The FW Act relevantly reads in this regard as follows: 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. [4] The task before me is to determine, as a matter of discretion, whether I am satisfied that there are exceptional circumstances for the delay in lodging the application, taking into account the various matters cited above. [5] The Applicant originally filed an application pursuant to s.394 of the FW Act in respect of the termination of his employment with the Respondent. 1 This matter was subject to a conciliation conference (via telephone) with a FWA conciliator on 11 December 2009. [6] The Applicant subsequently decided that he would discontinue his s.394 application and instead make an application under s.365 of the FW Act (and for which I conducted a conciliation conference, which failed to resolve the contest between the parties). [7] Prior to issuing a certificate under s.369 of the FW Act, the Respondent sought the resolution of the issue under s.366(1)(b) of the FW Act. [8] The Applicant claims that the principal reason for the delay in filing his application under s.365 of the FW Act was because he was informed by the FWA conciliator following the conciliation conference (in a telephone conversation he claims took place on 12 December 2009) that in seeking to make an application under s.365 of the FW Act that he had 60 days in which to make his application in respect of the unlawful application that he intended to make. 2 [9] The Applicant gave evidence under an affirmation that this was the unambiguous nature of the conversation. He did not hesitate in relation to his recollection of that discussion. He took the comment about the 60 day time frame to be a reference to 60 days from the date of the telephone conversation and not 60 days from the date of the termination of his employment took effect (which was the same day on which he was notified of thereof), which was Monday, 26 October 2009. [10] In giving his evidence, the Applicant was not hesitant in relation to his recollections on that matter. He did not condition or qualify his recollections by reference to words such as "to the best of my recollection" or otherwise. The Applicant's evidence that he has given under affirmation was that he directly recalled the precise nature of the communication between himself and the FWA conciliator in respect of the 60-day time frame. [11] That said, I was invited by the Respondent however to infer from the surrounding context that the Applicant’s claims are untenable or unsustainable. The Respondent contended that the FW Act does not contemplate the application being made 60 days from the time of a conciliation conference, or from the time of the conversation between the Applicant and the FWA conciliator. The FW Act makes clear that the application must be made, in respect of s.365 applications, 60 days from the date the termination takes effect, which was Monday, 26 October 2009. [12] In such circumstances, I am invited to infer that a FWA conciliator, who would be experienced in these matters and familiar with the statutory framework, reasonably would not have provided that information. [13] An added inference may also be drawn from the evidence that the Applicant had had two conversations at least with a Legal Aid adviser (who I take to be a solicitor) prior to his application being made and that the Applicant might reasonably have been informed of the statutory time period by that person. [14] However, the particular advice given to the Applicant does not form part of the Applicant's evidence. That is, the Applicant’s evidence about his discussions with third parties does not ground any adverse inferences about his conduct in relation to his application. [15] Finally, there is no information on the file that the correspondence between FWA and the Respondent subsequent to the conciliation gave an indication of the statutory time period applying to his application. Nor do any of FWA’s Forms (such as Form 8 of FWA’s Forms) make reference to the statutory time periods that apply in relation to s.365 applications (or how such a time frame is differentiated from applications made under s.372 of the FW Act). Generally, there was nothing that appears to have been put before the Applicant that might reasonably have caused him to reconsider the advice he claims he was given by the FWA conciliator. [16] I am left with some contextual circumstances, from which it is suggested by the Respondent that I should draw a conclusion adverse to the Applicant. Whilst they may be salient considerations, I must prefer the Applicant's direct evidence, of which I have given account of earlier. That evidence was given, as I have said, in an unambiguous and unconditioned or unqualified manner. The Applicant was adamant about the advice he had received from the FWA conciliator on 12 December 2009 in a direct telephone conversation, and his evidence was left undisturbed following cross examination. [17] Of course, the evidence that the Applicant has given today is not able to be challenged, in effect, from the point of view of the relevant FWA conciliator. That is a circumstance which is unavoidable, for sound reasons of public policy. But it did remove from the inquisitory process an important means by which the probity of the Applicant’s evidence could be tested. [18] This discussion constitutes my findings concerning the matter to which I must have regard under s.366(2)(a) of the FW Act. [19] In respect of s.366(2)(b) of the FW Act, I need to take into account any action taken by the Applicant to dispute the dismissal. In my view, the conduct of the Applicant in telephoning his former employer in which the Applicant further agitated all the matters about which he sought Woolworths' response, indicates to me that the Applicant was not a person who did no more than sit upon his rights, as he believed them to be. [20] The Applicant gave evidence of having attempted to further agitate the matters by way of direct communication with the Respondent after such time as his employment had been terminated. [21] That is a matter which displays an intention to contest the application and to demonstrate to the Respondent that despite the decision to terminate his employment, the issues in contest had not reached finality and the Respondent was therefore on notice that the matters would be contested in the future. [22] In relation to s.366(2)(c) of the FW Act, I need to determine whether there was any prejudice to the employer, including prejudice caused by the delay. There is no discernible prejudice caused by the delay, in my view. None was put to me in any substantive way. There is delay itself, which causes some measure of inconvenience (such as this very application), but I see no substantive prejudice arising in that regard. [23] In respect of s.366(2)(b) of the FW Act, the merits of the application have not been canvassed through the proper formal determinative process by which evidence is taken under oath and which is further adduced through the machinery of cross-examination and re-examination. I do not reflect on the merits of the matter in any certain way and, at their highest, they must taken to be of neutral weighting in relation to the discretionary task before me. [24] Finally, as to the matter of the fairness between the Applicant, the person and any other persons in a like position, I not aware of any claim being made that suggests any similarity with the circumstances relevant to this applicant. [25] It is not abundantly clear to me as to how s.366(2)(e) of the FW Act operates as a guiding principle to which I need to take into account. The origins of that principle appear to often to emanate from the decision of Wilcox J in Hunter Valley Developments Pty Ltd and Ors v. Cohen (1984) 58 ALR 305. [26] That judgment, as I have read it, in fact is referable to another decision, that is the decision of Sheppard J in Wedesweiller and Others v Robert William Cole and Others (1983) 47 ALR 528. In that judgment (cited in the Australian Law Reports at pages 534 and to a limited extent at 535) Sheppard J provides for a discussion of a particular set of circumstances in which there were approximately 190 similar applications before the Federal Court of Australia at that particular time of which one of the 190 applications concerned the Applicant who was directly before Sheppard J. It is from that discussion of that particular set of circumstances, it appears as though a principle emanated that there was a necessity to consider the fairness amongst employees in similar situations as being a proper matter of consideration. [27] From that case, it further appears the matter was then associated with the reasoning of Wilcox J in Hunter Valley Developments Pty Ltd and Ors v. Cohen (as cited above), though it is not entirely evident it was applied in his reasoning in the particulars before him. [28] Nonetheless, the principle as it was then eventually appears to have been imported into the summary reasoning of Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298. The Brodie-Hanns judgment, in respect of its consideration of that particular principle, seems to have approached the principle in relation to whether or not the court adopts a uniform approach to matters of a similar kind. [29] It is not therefore entirely clear as to whether or not the so-called principle is operative in relation to the approach to matters of a similar kind that are currently before the court or the tribunal or whether the court or the tribunal is to consider how, in some general sense, similar matters have been approached historically. [30] These comments aside, having considered all of these matters, I am of the view that there are exceptional circumstances, taking into account particularly the reason for the delay in this matter, which concerns the purported advice of the FWA conciliator on which the Applicant reasonably relied upon. [31] Consequently, I will issue the certificate that I must under for the purpose of s.369 of the FW Act. 3 SENIOR DEPUTY PRESIDENT Appearances : Mr M Wilson for himself Mr J Moore of the National Retail Association for the Respondent Hearing details: 2010 Brisbane March 15 1 The application pursuant to s.394 of the FW Act was withdrawn prior to the Applicant’s filing his current claim under s.365 of the FW Act. 2 The Applicant claims this conversation occurred on 12 December 2009. 3 As a post script, I indicate that following further exchanges between FWA and the Applicant and the Respondent, the Applicant and the Respondent agreed upon terms upon which the s.365 application was discontinued. Printed by authority of the Commonwealth Government Printer <Price code {C}, PR995477>