WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2014 WAIRC 01364

DELIVERED : Thursday, 18 December 2014

FILE NO. : U 227 OF 2014

Applicant

AND

Goldfields Individual and Family Support Association (Inc.) t/as GIFSA

Respondent

CatchWords : Termination of employment – Alleged harsh, oppressive and unfair dismissal – Application filed outside of 28 day time limit – Whether it is fair to accept application – Principles applied – Acceptance of application out of time

Legislation : Industrial Relations Act 1979 (WA)   s 29(3)

Result : Claim of unfair dismissal made out of time accepted

Representation:

Counsel:

Applicant : Mr S Kemp and Ms S Holmes

Respondent : Mr D White

Solicitors:

Applicant : Jackson McDonald Lawyers

Respondent : DLA Piper Australia

Case(s) referred to in reasons:

Aboriginal Legal Service of WA Inc v Lawrence No. 2 [2008] WASCA 254; (2008) 89 WAIG 243; 178 IR 168

Bernhardt v Placer Dome Asia Pacific [2004] WAIRC 10926; (2004) 84 WAIG 884

Penelope Archer v Starick Services Inc [2013] WAIRC 00314; (2013) 94 WAIG 498

Bankstown Handicapped Children’s Centre Association Inc v Hillman & Anor [2010] FCAFC 11

Kenneth Green v Kununurra Regional Economic Aboriginal Corporation [2003] WAIRC 10610; (2004) 84 WAIG 314

Hutchinson v Cable Sands (1999) 79 WAIG 951

Malik v Paul Albert, Director General, Department of Education of WA [2004] WASCA 51; (2004) 84 WAIG 683

Mann v Ross (1999) 97 IR 385

Nicole Stein v Care Options Inc [2005] WAIRC 02292; (2005) 85 WAIG 3361

Case(s) also cited:

Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298

Brown v Stuart Randell @ Sacred Tattoos [2014] WAIRC 00152; (2014) 94 WAIG 236

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Nadia Mirez Toohey v Harold Hawthorne Senior Citizens Centre and Homes Inc. [2012] WAIRC 00371; (2012) 92 WAIG 932

R v Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board [1965] HCA 50; (1965) 113 CLR 228; (1965) 39 ALJR 216

Richter v Scottridge Holdings Pty Ltd trading as Super Safe Scaffolds [2013] FWC 2116

Reasons for Decision

1          This claim of unfair dismissal was received out of time and has been listed for hearing to receive submissions whether it should be accepted.  By s 29(3) of the Industrial Relations Act 1979 (the IR Act), the Commission may accept a claim of unfair dismissal out of time if the Commission considers that it would be unfair not to do so. 

2          A witness statement prepared by the applicant together with a number of attachments and a witness statement by the solicitor representing the respondent and a number of attachments were admitted by consent.  Both parties reserved their right to cross-examine on the statements if the application is accepted out of time.

3          Considerations which are usually relevant in considering whether it would be unfair not to accept a claim of unfair dismissal that is out of time are discussed in the decision of the Industrial Appeal Court in Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 683.  I find those considerations, in the context of this claim, are as follows. 

The length of the delay

4          The applicant was dismissed on 7 September 2014 and his employment terminated on that day.  His claim in this Commission was received on 12 November 2014, 66 days after the termination of his employment.  A claim of unfair dismissal in this Commission must be referred to the Commission within 28 days of the day the employee’s employment terminated.  Accordingly, the claim is 38 days out of time.

The reasons for the delay

5          Following his dismissal, the applicant filed a claim of unfair termination in the Fair Work Commission on 26 September 2014.  The applicant did so in the mistaken belief that the respondent was a national system employer.  In forming that belief, the applicant took into consideration that he had been employed as the Chief Executive Officer of the respondent pursuant to a letter which referred to the national employment standards with respect to his sick leave.  The letter of termination also referred to the notice provisions of the Fair Work Act 2009 (Cth) (the FW Act). 

6          At the time, the applicant believed the respondent was a trading corporation because it was not funded by grants but by receiving payment of a fee for administering grants made to its individual clients.  The applicant understood it was a fee for service that constituted trading.

7          On 6 October 2014 the respondent filed a Notice objecting to the jurisdiction of the Fair Work Commission on the grounds that the respondent is not a constitutional corporation and therefore not a national system employer.  After receiving it, the applicant’s solicitors had informed him that the respondent had entered into the Goldfields Individual and Family Support Association Incorporated Collective Enterprise Agreement 2013 which had been approved by the Fair Work Commission under the FW Act.  The applicant points out that only a national system employer can have such an agreement approved by the Fair Work Commission.  He submits that he therefore had a reasonable belief that the respondent was a constitutional corporation and therefore a national system employer and that his application to the Fair Work Commission was within jurisdiction.

8          On 10 October 2014 the applicant’s solicitors wrote to the respondent’s solicitors seeking information about the objection and reserving the applicant’s right to commence an unfair dismissal claim in this jurisdiction.  On 15 October 2014 the respondent’s solicitors wrote to the applicant’s solicitors setting out reasons for the objection.  The applicant’s statement says that he still believed the grants referred to in the letter were grants to clients and not to the respondent, and noted that the letter did not explain how the respondent could have an enterprise agreement under the FW Act if it was not a national system employer.

9          On 6 November 2014 the respondent, in accordance with directions issued by the Fair Work Commission filed witness statements, supporting documents and submissions outlining the reasons why it said it was not a constitutional corporation.  The applicant then met with his solicitors on 11 November 2014.  Having considered the material, the applicant accepted that the respondent was not a constitutional corporation and on 12 November 2014 arranged for the Fair Work Commission proceedings to be discontinued and this claim to be referred to the Commission.

Is there an acceptable explanation of the delay which makes it equitable to so extend?

10       The respondent argues that there is not an acceptable explanation for the delay.  The respondent points out that the applicant engaged and was represented at all material times by legal practitioners experienced in industrial law shortly after the end date of his employment.  He was put on notice as early as 6 October 2014 that the respondent raised jurisdictional objections concerning his claim in the Fair Work Commission and the respondent provided further evidence on 15 October 2014 to this effect.

11       The respondent submits that despite this, the applicant through his legal representatives failed to file a claim for unfair dismissal in this Commission within the 28 day period required.  The respondent points out that s 29AA of the IR Act recognises an employee may file for a claim of unfair dismissal in this Commission in circumstances where there are corresponding proceedings in the Fair Work Commission.

12       The respondent points out that on 6 November 2014 the respondent filed an amended objection providing that the applicant had not completed the minimum employment period of at least six months continuous service at the time of dismissal as required by sections 382 and 384 of the FW Act.  The applicant presumably changed tact and sought to discontinue the claim before the Fair Work Commission and initiate an unfair dismissal claim in this Commission on 12 November 2014 in order to avoid the amended objection thereby seeking a jurisdictional advantage.

13       The respondent submits further that the 38 day period that the claim is out of time is a significant delay relative to the 28 day period prescribed under the IR Act and it would be unfair to accept claim that is so significantly out of time.

14       I find as follows.  The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.  The misunderstanding whether the respondent is, or is not, a national system employer is the significant reason for the delay.  The issue which arises from the operation of state and Commonwealth legislation covering employment in WA of whether or not an employer is a national system employer, is not an uncommon issue.  It can be of itself an acceptable reason for the delay. 

15       I accept that, generally, where a party to proceedings is represented by legal practitioners experienced in industrial relations in WA, their understanding will allow them to recognise and deal with this issue when it might not be understood by an unrepresented litigant.

16       However, much depends on the circumstances.  In many, perhaps even most, circumstances, a correct assessment may readily be made from the correct identification of the employer as a company whether or not it is likely to be a constitutional corporation and therefore a national system employer.  In this case, where the respondent is a not for profit incorporated body, not only can there be a significant difficulty in making that assessment based upon the correct identification of the employer, the decisions of the WA Industrial Appeal Court in Aboriginal Legal Service of WA Inc v Lawrence No. 2 [2008] WASCA 254; (2008) 89 WAIG 243; 178 IR 168, contrasted with the Full Court of the Federal Court in Bankstown Handicapped Children’s Centre Association Inc v Hillman & Anor [2010] FCAFC 11, show that such an assessment can sometimes be uncertain even where a party to proceedings is represented by legal practitioners. 

17       In this case, too, the respondent itself contributed to the uncertainty about whether the respondent was a national system employer by having referred in the letter of employment to the national employment standards, to the FW Act in the letter of termination and by being party to an enterprise agreement under the FW Act, all of which are contraindications to its later statement that it is not a constitutional corporation. 

18       There is much to be said for the applicant’s submission that the financial and operational information necessary to determine whether or not the respondent is a trading corporation is information peculiarly within the knowledge of the respondent.  The applicant’s understanding was that the respondent was not funded by grants but by receiving payment of a fee for administering grants made to its individual clients.  The respondent filed a notice on 6 October 2014 challenging jurisdiction and provided further evidence to the applicant on 15 October 2014.  However it was once the respondent filed the witness statements, supporting documents and submissions that the reasons for its objection were able to be assessed by the applicant, and it was then that the applicant took steps to discontinue the claim in the Fair Work Commission and lodge in this Commission on 12 November 2014.

19       In these circumstances I find the applicant, through his legal representatives, acted reasonably in lodging his claim in the Fair Work Commission.  Further, I find the applicant, through his legal representatives, acted reasonably in maintaining that belief after it found that the respondent was party to an enterprise agreement registered in the Fair Work Commission.  I accept the submission on behalf of the applicant that only a national system employer is able to be a party to an enterprise agreement registered in the Fair Work Commission.  I find that there is an acceptable explanation of the delay.

20       The respondent submits that the applicant could have lodged a claim of unfair dismissal in this Commission as early as 6 October 2014 when the respondent first raised jurisdictional objections to the application he had lodged under the FW Act.  The applicant points to sections 725, 729 and 732 of the FW Act to argue that that was not the case.  I do not regard this issue as carrying great weight because whether the claim should be accepted out of time is not necessarily decided by whether the applicant could lawfully have lodged a claim in this Commission earlier than he did, it is whether he acted unreasonably in not doing so.  In the circumstances of the early uncertainty about whether the respondent was a national system employer outlined above, he did not act unreasonably.

21       I do not accept the respondent’s submission that the applicant conceded that the respondent is not a national system employer in order to escape the amended objection that he had not completed the minimum employment period of at least six months’ continuous service at the time of dismissal.  It is not open to an applicant to elect to abandon a claim of unfair dismissal filed in the Fair Work Commission to pursue instead the same claim in this Commission.  The jurisdiction is determined by whether the respondent is, or is not, a national system employer. That is a question, ultimately, of fact, not election by an applicant. 

Merits of the claim of unfair dismissal

22       For the purposes of deciding whether it would be fair to accept the application out of time, an assessment of the merits at this preliminary stage is only in a fairly ‘rough and ready way’.  It is helpful to note in Malik Steytler J at [25] observed:–

The Commission is empowered to accept a late referral if it would be 'unfair' not to do so and, while an assessment of the merits 'in a fairly rough and ready way' (see Jackamarra v Krakouer (1998) 195 CLR 516 at [9]) will often be an important consideration, there is nothing in the words of s 29(3) which imports any obligation, on the part of an applicant, to establish any degree of merit (and it should not be overlooked, in this regard, that the Commission is given broad powers to dismiss a matter summarily under s 27(1)(a) of the Act).  It is, of course, difficult to imagine that it would ever be unfair to an applicant to deny him or her the right to lodge a referral out of time where it was positively shown that the applicant had no prospect of success.

23       The applicant commenced employment on 24 February 2014 pursuant to a written contract of employment which provided his employment was subject to a three month probationary period expiring on 24 May 2014.  The statement of the applicant says that on or about 20 June 2014, whilst overseas, the respondent informed him that it had decided to extend his probationary period to 24 September 2014 as it had not had the chance to assess his performance due to leave he had taken.  The applicant’s statement is that he did not accept the extension of the probationary period.  The submissions of the respondent are that during his employment, the applicant had requested significant periods of time away from work on both paid, and unpaid, leave.  As a result on 20 June 2014 the respondent extended the applicant’s probationary period to 20 September 2014 in order to appropriately assess his performance due to his absence away from work.

24       The applicant’s employment was terminated on 7 September 2014.  The applicant says that the respondent gave no valid reason for his termination.  The applicant’s statement is that he was called on 4 September 2014 to ask if he could meet the respondent’s acting chairperson ‘for a catch up chat’ and when he attended the meeting on 7 September 2014, the acting chairperson informed him that the Board had decided to dismiss him and handed the him an envelope containing a letter confirming the dismissal.  The meeting was then terminated having lasted only a matter of minutes.  The applicant says he was not given any reason for the dismissal, he had never received any warnings about his conduct or performance and was never told that his employment was at risk.

25       The respondent’s submission is that on 7 September 2014 the respondent determined that the applicant’s employment would not continue past the probationary period due to unsatisfactory performance.  In the respondent’s view, the applicant failed to fulfil the requirements of his position as Chief Executive Officer including but not limited to:

1. Inappropriate conduct by the applicant in respect of staff members of the respondent;

2. Failure to carry out the basic requirements of his role and duties;

3. Failure to report and keep the respondent’s Board advised of key issues regarding the operations of the respondent; and

4. Directing staff to record unpaid leave as paid leave.

26       The respondent further says that on numerous occasions Board members of the respondent counselled and warned the applicant about his performance and conduct, however he failed to improve.  The respondent submits that the applicant’s claim lacks any substantive merit and is not likely to succeed. 

27       I make no finding as to the merits of the claim, however it is not clear at this preliminary stage that the applicant is not likely to succeed.  The respondent submits that it had extended the applicant’s period of probation and terminated him within that extended period.  However, whether the applicant was still on probation is contested.  The applicant says he was not given any reason for the dismissal, he had never received any warnings about his conduct or performance and was never told that his employment was at risk.  I acknowledge that if the respondent can establish by probative evidence the four matters it refers to as failures by the applicant to fulfil the requirements of his position, then the applicant’s claim may face difficulty but that is a matter for future evidence.  It cannot be said at this time that the applicant has no prospect of success.

Prejudice to the respondent

28       The respondent submits that it is a not for profit organisation that relies on state government grants to fund its community service‑focused activities and it has not in any way caused or contributed to the applicant’s delay in bringing this claim.  The respondent submits it has incurred significant legal expenses as a result of the applicant pursuing the claim in the Fair Work Commission including for the preparation of extensive witness statements and legal submissions.  The respondent submits that it will suffer significant prejudice if this claim proceeds in terms of incurring further legal costs, as well as drawing Board members and executive personnel away from the respondent’s day to day community-focused activities in order to prepare for and participate in further legal proceedings.

29       In reply, the applicant submits that the costs incurred by the respondent would be costs that would have been incurred if the claim in the Fair Work Commission had proceeded, and represents work which will not need to be repeated for the purposes of this claim.

30       I take into account that the respondent does not point to any significant prejudice arising from the delay in the claim being referred to the Commission.  Rather, the matters to which the respondent refers arise more from the applicant contesting his dismissal, such as the legal expenses as a result of the claim in the Fair Work Commission and the prospect of further expenses if the claim is accepted out of time.  I consider the submission on behalf of the applicant, that the costs incurred by the respondent in the preparation of extensive witness statements and legal submissions will largely not be wasted if this claim is accepted out of time, is valid.

Considerations of fairness as between the applicant and other persons in like position

31       The applicant submits that the Commission has accepted, or indicated that it would accept, claims of unfair dismissal out of time in similar circumstances to that of the applicant where a jurisdictional issue has been raised: Nicole Stein v Care Options Inc [2005] WAIRC 02292; Kenneth Green v Kununurra Regional Economic Aboriginal Corporation [2004] WAIRC 10610; Penelope Archer v Starick Services Inc [2014] WAIRC 00314.

32       The respondent observes that there are no other persons in a similar or like position and this point has little relevance to the matters before the Commission on this occasion.  The respondent drew attention to Bernhardt v Placer Dome Asia Pacific [2004] WAIRC 10926, where an applicant lodged a claim of unfair dismissal in the Australian Industrial Relations Commission and later sought to file a claim of unfair dismissal out of time in this Commission, which refused to accept the claim.  

33       In the circumstances of this case, I find the decisions to which I have been referred helpful, but not decisive; they each turned upon their own circumstances. 

Whether the applicant had taken action to contest the dismissal other than by filing this claim

34       I find that the applicant had taken action to contest the dismissal other than by filing this claim.  The respondent was informed 12 days after the termination by the applicant’s solicitors that the termination would be contested.  In my view, the fact that the respondent knew from some 12 days after the dismissal that the applicant would be contesting his dismissal, and that the claim was lodged in the Fair Work Commission and actively pursued, considerably lessens the consequence to the respondent of this claim having been lodged 38 days out of time. 

Conclusion

35       The considerations set out in Malik are not exhaustive and none of them is necessarily decisive.  Each case will turn upon its own individual facts and circumstances.  In the circumstances of this case, the evidence that the applicant gave early notice to the respondent that his dismissal would be contested by his application to the Fair Work Commission which was in time and actively pursued, in the context of the indications from the respondent that it is a national system employer, is important. 

36       The applicant had notified the respondent on 10 October 2014 that he reserved his right to commence a claim in this Commission in the event that the respondent was not a national system employer.  Further, he referred this claim within an acceptable time from the employer providing the financial and operational information going to whether it engaged in trading.

37       Balancing the matters set out in these reasons, I am positively satisfied that it would be unfair not to accept the referral out of time.  An Order will issue that the applicant’s claim of unfair dismissal be accepted out of time.