Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time.

[1] Mr Keith Long worked at Keolis Downer T/A Yarra Trams for approximately 12 years. On 9 March 2018, he applied to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act).

[2] Application for an unfair dismissal remedy must be made within 21 days after the dismissal "took effect", or if there are exceptional circumstances, such further period as the Commission allows.[1]

[3] The effective date of dismissal is in dispute. Yarra Trams says Mr Long was dismissed on 2 November 2017 and his application is 106 days late. It objects to the application and opposes any extension of time. Mr Long says his employment was terminated on 5 February 2018 and his application is 11 days late. He asks that an extension of time be granted.

[4] Mr Long filed materials in support of his application for an extension of time on 11 April 2018. Yarra Trams did not file any material other than the Form F3 Employer Response on 20 March 2018.

[5] On 20 April 2018, I heard the application for an extension of time. Mr Long was represented by Wisewould Mahony Lawyers and he and his wife gave evidence on his behalf. Ms Alexandra Marriott appeared by telephone for Yarra Trams and did not call any witnesses.

[6] On 2 November 2017, Yarra Trams wrote to Mr Long as follows:

"Following the investigation outcome meeting on 2 November 2017, I confirm Yarra Trams' decision to terminate your employment with effect from 2 November 2017.

As discussed, the reason for the termination of your employment is due to serious safety breaches of the Yarra Trams rules, specifically Cardinal Rule 2 - Handheld Mobile Devices.

Your breach is considered serious misconduct. Your final pay will include pay to the end of today, 5 weeks' pay in lieu of notice and accrued leave entitlements.

You are required to return all Yarra Trams property, please contact your team manager to arrange to do this and collect your personal belongings.

As explained in the meeting, you may appeal this decision by making a request in writing to the Chief Executive Officer within 48 hours."[2]

[7] The appeal process referred to in that letter is one established under the Yarra Trams Enterprise Agreement 2015 - Operations[3] (the appeal process term), which provides as follows:

"An employee who has been dismissed from the service of Yarra Trams or reduced in grade shall be entitled to an appeal to an Independent Chair of the decision if within 48 hours of such dismissal or reduction, he/she so requests in writing to the Chief Executive Officer.

Appeals must be dealt with by way of an oral hearing ('appeal hearing') before an Independent Chair. The employee shall be entitled to be represented at an appeal hearing by a member of a union or employee association or other nominated representative.

Appeal hearings will be held at an agreed location that allows for privacy and confidentiality of proceedings. However it is recognised that there will be times where it is not possible to do this, in which cases appeal hearings will be held at other locations.

(c) An employee advocate (normally an official of the Union), or other representative, at the selection of the employee or employees involved.

(e) Other person as required by the Independent Chair, or at the request of either advocate, to assist in the proper conduct of proceedings.

The Independent Chair is a person appointed by Yarra Trams, by agreement with the RTBU Tram & Bus Division prior to appointment. The Independent Chair is not to be a person who was involved in the making of the decision under appeal. The Independent Chair will not be an employee, a contractor, or otherwise in the service of the Employer.

The role of the Independent Chair is to facilitate the proper conduct of appeal hearings, in accordance with the Principles outlined in the Yarra Trams Disciplinary Counselling Policy and on the basis of all the material before him or her, and to make a recommendation on appropriate disciplinary action.

The employee and management Advocates are accountable for ensuring that all relevant facts and evidence are brought to the attention of the Independent Chair, for their consideration.

These provisions shall not abrogate any rights of appeal under the Fair Work Act on behalf of an employee who considers they have been unfairly dismissed"[4]

[8] Mr Long exercised his right of appeal under the appeal process term. He says that in doing so, the termination of his employment was effectively stayed. He relied on Ayub v New South Wales Trains (Ayub)[5] to submit that the dismissal did not take effect until communicated to and known by him. Ayub referred to the earlier case of Stevanovski v Linfox Transport[6] as authority for the proposition that at common law, an employment contract is terminated with effect from the date it is communicated to the employee and only when the termination is "clear on its terms".

[9] I do not accept that the dismissal was effectively stayed by the appeal process.

[10] There is nothing in the language of the appeal process term to suggest that an appeal has the effect of delaying or suspending a decision to dismiss.

[11] The letter of termination clearly states that the dismissal took effect on 2 November 2017. It set out reasons for dismissal and a requirement for all employer property to be returned. There was no commitment to suspend or delay the dismissal pending the outcome of any appeal.

[12] There is no dispute that Mr Long was given the letter of termination on 2 November 2017.[7] I find that it clearly communicated the fact of his dismissal to Mr Long. On the authority in Stevanovski, it took effect from that day. Ayub does not appear to me to assist in the present case.

[13] I find that the dismissal took effect on 2 November 2017. The delay in making this application is accordingly 106 days.

[14] Section 394(3) of the Act sets out the factors to be considered in deciding whether more than 21 days should be allowed for a person to lodge an unfair dismissal application, as follows:

• the reason for the delay;

• whether the person first became aware of the dismissal after it had taken effect;

• any action taken by the person to dispute the dismissal;

• prejudice to the employer (including prejudice caused by the delay);

• the merits of the application; and

• fairness as between the person and other persons in a similar position.

[15] An individual seeking additional time to make an application must provide a credible reason for the whole of the period of delay.[8] An extension of time can only be granted if there are exceptional circumstances; that is, circumstances "out of the ordinary course, or unusual, or special, or uncommon".[9] The circumstances "need not be unique, or unprecedented, or very rare".[10]

[16] The reason given by Mr Long for the delay in making his application is that he was awaiting the outcome of the appeal of his dismissal under the appeal process term and that after he received confirmation that the decision would not be reviewed, it took some time for lawyers he had contacted to return his calls.

[17] It is agreed that after his dismissal on 2 November 2017, Mr Long appealed the decision under the appeal process term.

[18] Before the appeal was finalised, Mr Long asked Mr Teasdale of the Rail, Tram and Bus Union - Tram and Bus Division (RTBU) if he could "go to Fair Work". According to Mr Long, Mr Teasdale told him:

"Whatever Brian Lacey says will be the same as Fair Work, so you don't need to go to Fair Work."[11]

[19] There is nothing before me to contradict this evidence. However, I am conscious that Mr Teasdale was not a participant in the hearing and has not had an opportunity to respond. If he did give this advice, it was inappropriate. It encouraged Mr Long to believe that a private, non-binding appeals process was an adequate substitute for an unfair dismissal application to the Commission. It discouraged him from making such an application either at that time, or after the appeal process was concluded.

[20] On 11 November 2017, Mr Long's appeal was heard by Brian Lacy, Appeals Chair.[12]

[21] On 14 December 2017, Mr Lacy issued a Decision and Recommendation in relation to the appeal.[13] The Decision and Recommendation was to the following effect:

1. There was a valid reason for dismissal, related to the handling of a mobile phone while driving tram 25 on 15 September 2017 for at least two stops;

2. A number of factors were nevertheless relevant to whether the dismissal was harsh, unjust or unreasonable, including:

   1. Mr Long's length of service and consistency;

   2. His acknowledgement of his own grave error of judgment and honesty throughout the investigation

   3. His failure to follow protocol either in reporting the receipt of lost property or disposing of it

   4. Yarra Trams failure to give weight or consideration to mitigating factors that led the Investigator to recommend a final written warning instead of dismissal.

3. The mitigating factors did not weigh in favour of the dismissal being found harsh given his safety breaches were "at the serious end of the scale";

4. Yarra Trams apparent failure to consider the mitigating factors or to consider alternatives to termination of employment weigh in favour of a finding that the dismissal was harsh and unreasonable;

5. Yarra Trams should review its decision to dismiss taking account of the mitigating factors in 2(a) above and whether there were alternatives to dismissal.

[22] On 22 December 2017, Yarra Trams advised Mr Teasdale that it would not review the decision to dismiss Mr Long.[14]

[23] Mr Long says this advice was not passed on to him by the RTBU. He says he called Mr Teasdale, who he depended on wholly in relation to his dismissal. He says Mr Teasdale told him that Yarra Trams had not got back to him.[15]

[24] On 5 February 2018, the discussion between Yarra Trams and the RTBU on 22 December 2017 was confirmed in writing to Mr Teasdale. Yarra Trams says the letter was issued at the RTBU's request. If so, it is not clear what motivated the request. Two weeks earlier, Mr Long had contacted lawyers and sent them some documents. There is no evidence that the lawyers asked him to obtain Yarra Trams' response to the appeal in writing to assist in the preparation of his case. There is also no evidence that the RTBU was asked to obtain the letter, although it seems strange it would do so in the absence of a request.

[25] Whatever its origins, the letter stated as follows:

"I write to you to confirm our discussion on 22 December 2017 regarding Mr Keith Long.

Yarra Trams has carefully considered the Recommendations of Mr Brian Lacy, Independent Appeal Chair, arising from the appeal proceeding regarding the termination of Mr Keith Long's employment.

Our position remains that the termination of Mr Long's employment was appropriate in all the circumstances."[16]

[26] The evidence does not establish when the letter to the RTBU of 5 February 2018 was communicated to Mr Long. However, in light of his submission that the dismissal took effect on 5 February 2018 when it was communicated to him, I infer that he received a copy of the letter on that date.

[27] I am satisfied that immediately after his dismissal, Mr Long challenged the decision by seeking that it be reviewed through the appeals process. This weighs in favour of a grant of additional time.

[28] On 22 January 2018, Mr Long contacted JN Zigouras lawyers and sent them documents about his dismissal. According to Mr Long and his wife Ronilla Long, the lawyers did not respond. Mrs Long called them again on or about 19 February 2018 to ask that they work on the case because "time was running" against Mr Long.

[29] At some time after 5 February 2018, Mr Long says the RTBU told him there was "no point issuing proceedings in the Commission for unfair dismissal.[17] Again the state of the evidence on this point is unsatisfactory. Quite serious allegations are made about the RTBU either giving inappropriate or wrong advice to Mr Long in circumstances where it is not in a position to respond and there is nothing to either confirm or contradict them.

[30] On 3 March 2018, JN Zigouras referred Mr Long to his current lawyer. On 7 March 2018, Mr Long met with his lawyers and on 9 March 2018, the application was filed.

[31] It is clear that after 3 March, his lawyers acted quickly on his behalf to commence the application notwithstanding the jurisdictional hurdle he now faced. However, the decision to wait so long for JN Zigouras to call him back was not satisfactorily explained. Mr Long says he was waiting for the lawyers to respond. Ultimately, it was his responsibility to diligently pursue the matter if his intention was to continue to challenge the dismissal. His failure to do so was unwise and weighs against the grant of additional time.

Whether the person first became aware of the dismissal after it had taken effect

[32] Mr Long became aware of the dismissal on 2 November 2017 when the dismissal took effect.[18]

[33] This factor does not weigh in favour of a grant of additional time to make the application.

Any action taken by the person to dispute the dismissal

[34] As discussed above, immediately after the dismissal, Mr Long challenged the dismissal by lodging an appeal under the appeal process term. After that time, Mr Long does not appear to have taken active steps to dispute the dismissal other than calling JN Zigouras on 22 January 2017 and sending it his documents. His wife then asked Mr Long to follow up and eventually took it upon herself to do so, calling them "three or four times".

[35] According to Mrs Long, JN Zigouras finally called back on 3 March 2017, apologised for the delay and referred them to another law firm. The delay does not reflect well on JN Zigouras, although I am conscious they too have not had an opportunity to give their version of events.

[36] I find this factor to be finely balanced. The election to appeal through the appeal process term weighs in favour of a grant of additional time but the subsequent lack of diligence in pursuing the matter weighs against it.

Prejudice to the employer (including prejudice caused by the delay);

[37] There is no evidence of any prejudice to Yarra Trams if the application proceeds. This factor is a neutral consideration.

[38] The application for additional time is being considered before the merits of the application have been properly considered. However, the parties agree that the facts giving rise to the dismissal are largely as set out in the Decision and Recommendation of Mr Lacy.

[39] Taking those facts into account, in my view, the merits of the application are not strong. They point to Mr Long having committed a serious safety breach in conflict with "Cardinal Rule 2" by using a mobile phone while driving a public tram as well as two separate failures to follow company policy.

[40] There are mitigating factors including Mr Long's length of service and conduct during the investigation leading to his dismissal. The fairness and quality of the process followed by Yarra Trams in dealing with the dismissal is in dispute.

[41] On balance, this factor weighs against the grant of additional time.

Fairness as between the person and other persons in a similar position

[42] There is nothing before me to indicate that fairness as between two or more persons is a relevant factor in this case. It is a neutral consideration.

[43] While Mr Long and his wife took steps to challenge the dismissal, including under the appeal process term, Mr Long could have been in no doubt that Yarra Trams did not intend to reverse the decision to dismiss him after 5 February 2018. I am not satisfied that the matter was diligently pursued by him after 5 February 2018.

[44] While regrettable, I do not consider it unusual for lawyers to sometimes fail to return the call of a prospective client. In those circumstances, an applicant seeking to challenge their dismissal has a responsibility to actively follow up with them or seek alternative counsel.

[45] Similarly, if he was given the impression by the RTBU that there was no point challenging the dismissal, the evidence of his decision to contact lawyers for advice suggests that he did not accept this advice without question because he decided to seek a second opinion. I am not satisfied that advice given by the RTBU adequately explains the delay in seeking to pursue the matter further.

[46] Taking into account the reasons given for the entire period of the delay as well as the other factors set out above, on balance I am not satisfied that there are exceptional circumstances such that the Commission should allow Mr Long a further period of time to make his application.

[47] The application is dismissed.

[1] Fair Work Act 2009 (Cth), s 394(2)

[2] Exhibit 1, Statement of Keith Long, Exhibit KL-2

[4] Form F3 Employer Response filed on 20 March 2018, Appendix 3; Yarra Trams Enterprise Agreement 2015 - Operations, Clause 3.5 of Attachment 1, AE416732

[5] [2016] FWCFB 5500 at [21]

[6] [2001] AIRC 388; PR903594

[7] Exhibit 1, Statement of Keith Long, Attachment KL-2

[8] Cheval Properties Pty Ltd v Smithers [2010] FWAFB 7251; (2010) 197 IR 403

[9] Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [13]

[11] Audio recording of hearing, 20 April 2018

[12] Form F3 Employer Response filed on 20 March 2018

[13] Exhibit 1, Statement of Keith Long, Attachment KL-3

[14] Form F3 Employer Response filed on 20 March 2018

[15] Audio recording of hearing on 20 April 2018

[16] Exhibit 1, Statement of Keith Long, Attachment KL-4

[17] Exhibit 1, Statement of Keith Long

[18] Exhibit 1, Statement of Keith Long

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