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[2011] FWA 3193
Fair Work Australia
2011-05-30
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Cronulla Sutherland Leagues Club Limited T/A Sharkies
Unfair dismissal - extension of time - application dismissed
[1] On 11 January 2011, Brad Linsell ("the applicant") filed an application pursuant to s.394 of the Fair Work Act 2009 ("the Act") for an unfair dismissal remedy in which it was alleged he had been constructively dismissed. Cronulla Sutherland Leagues Club Limited t/as Sharkies ("the respondent") has raised a number of objections to the application, including a threshold objection that the application was not filed within time. The application has been allocated to me for determination of that discrete, threshold issue.
[2] The applicant had been employed by the respondent in various managerial capacities since October 2005. The applicant considered that, commencing during the course of 2010, he was subjected to bullying and mistreatment. On 5 October 2010, the applicant instructed solicitors, Clinch Long Letherbarrow with Cropper Parkhill ("CLL"), regarding the alleged bullying and mistreatment by the respondent.
[3] On 2 November 2010, the applicant began an absence from work from which he did not, ultimately, return. A WorkCover medical certificate dated 29 November 2010 was in evidence, which cited anxiety caused by severe workplace bullying as the reason for the absence.
[4] In correspondence dated 22 December 2010, CLL advised ClubsNSW (the organisation that was representing the respondent) as follows:
"... We regard the collective behaviour of the club, in part set out above, as amounting to a constructive dismissal of our client. He regards his position at the club at an end. We call for forthwith payment [sic] of his statutory annual leave entitlements. We note that our client intends to commence action in the appropriate jurisdiction for unfair termination.
1. Can you indicate whether you have instructions to accept service.
2. Can you indicate a time and date next week upon which our client can collect his personal belongings.
3. Can you indicate if we will have the courtesy of a response to our without prejudice proposal, noting that a suitable response will avert litigation."
[5] In a reply dated 23 December 2010, ClubsNSW strongly denied there had been a constructive dismissal on 22 December 2010 and emphasised that the respondent was concerned to ensure the applicant's return to work. The correspondence reiterated the respondent's view that the applicant's employment was not "at an end", but also indicated that, if the applicant was resigning, arrangements would be made for the payment of termination monies.
[6] On 31 December 2010, CLL responded to the correspondence from ClubsNSW dated 23 December 2010. Among other matters, the CLL correspondence advised:
[7] The CLL solicitor who initially had been acting for the applicant ("the first CLL solicitor") was about to commence a period of leave and, as such, he gave carriage of the matter to another solicitor ("the second CLL solicitor"). The first CLL solicitor advised the second CLL solicitor on 31 December 2010 that an application concerning unfair dismissal "was being contemplated" by the applicant. On reviewing the file, the second CLL solicitor considered it was clear that the respondent was of the view that the applicant was still in its employ and, in turn, it had been asserted that the applicant had been constructively dismissed.
[8] On or about 4 January 2011, the second CLL solicitor was informed by the applicant that he had collected his belongings from the respondent's premises on 2 January 2011 and had been handed a letter from the respondent's chairman dated 1 January 2011. Among other matters, the chairman's letter advised the applicant that, until the respondent was provided with medical advice that the applicant was unable to return to work, it remained the respondent's goal to achieve a return to work for the applicant. The letter noted the respondent had not received a WorkCover certificate for the period after 29 December 2010. The chairman's letter also advised that notwithstanding other matters such as the applicant's collection of his personal belongings, the respondent did not regard the employment relationship as being at an end given the applicant had not effected a written or verbal resignation.
[9] On 4 January 2011, ClubsNSW replied to CLL's correspondence dated 31 December 2010. The ClubsNSW correspondence raised the following points:
[10] On 4 January 2011, CLL replied to the ClubsNSW correspondence dated 4 January 2011. The CLL correspondence relevantly read:
"We note your fundamentally flawed assertion that our client's employment has not been terminated "in the traditional sense or in a constructive way". With respect, whether Mr Linsell's employment has come to an end constructively is not for you to determine.
We refer to your request for information in order for you to assess Mr Linsell's outstanding entitlements. Our letter of 22 December 2010 clearly addressed this. In any event, we confirm that for the purpose of the calculation or our client's entitlements Mr Linsell's employment ceased on 22 December 2010."
[11] The second CLL solicitor deposed it was at this time it became clear in his mind that the applicant's employment had now ceased with the respondent.
[12] On 7 January 2011, the second CLL solicitor forwarded a draft unfair dismissal application form to the applicant and to the first CLL solicitor for review and instructions. On 8 January 2011, the applicant provided further, detailed written instructions to the second CLL solicitor. The applicant's instructions were first sighted by the second CLL solicitor on 10 January 2011. On 10-11 January 2011, the second CLL solicitor finalised the preparation of the applicant's unfair dismissal application.
[13] The application for the unfair dismissal remedy was filed on 11 January 2011. The Form F2 (Application for Unfair Dismissal Remedy) did not specify a date the dismissal took effect. As to that date, the Form F2 read: "To be determined by the Tribunal."
[14] The applicant subsequently contended before Fair Work Australia that the dismissal took effect on 4 January 2011. If that is the case, the application was filed within the standard time-frame of fourteen days. The respondent contended the relevant date was 22 December 2010, and that the application was out-of-time as it was filed on the twentieth day after the dismissal.
[15] Counsel for the applicant, Mr D Stewart, primarily submitted that the application filed with Fair Work Australia was not out-of-time. In this respect, Mr Stewart referred to s.394 of the Act, which reads:
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3). ..."
[16] Mr Stewart submitted it was important to note that time starts to run for the filing of an application for an unfair dismissal remedy not from the date an employee's employment is terminated, but when, within the meaning of s.394(2)(a) of the Act, the dismissal "took effect": Beasley v Australian National University t/a ANU [2010] FWA 7308; Longobardi v Wagners Personnel Pty Ltd [2010] FWA 4568. By reference to what was described as the "salient chronology", Mr Stewart submitted the respondent had disputed the contention the applicant had been constructively dismissed on 22 December 2010 and that, properly considered, the dismissal took effect on 4 January 2011. That is:
[17] Drawing from matters such as these, Mr Stewart submitted it could not be said by the respondent that the dismissal took effect on 22 December 2010, given the assertions by the respondent after 22 December 2010 that the applicant was still employed. Mr Stewart submitted the application had therefore been filed within time.
[18] Ms H Carayannis of ClubsNSW disputed the contention advanced on behalf of the applicant that the application was filed within time. Ms Carayannis submitted that although the respondent disputed the assertion there had been a constructive dismissal brought about by the conduct of the respondent (and the respondent had endeavoured to maintain the employment relationship through its expressed intent to facilitate the applicant's return-to-work), the effective date of the termination of employment was 22 December 2010 rather than 4 January 2011. Ms Carayannis submitted the applicant's submissions as to date of the termination of employment being 4 January 2011 "must fail" given the correspondence from CLL as to the cessation of employment having occurred on 22 December 2010, because the applicant unequivocally treated the date of the cessation of the employment relationship as being 22 December 2010. There was no ambiguity, given the correspondence from CLL; and any contrary views that crystallised in another person's mind were irrelevant. Moreover, the applicant's case appeared to suggest, contrary to common sense, that the applicant was constructively dismissed on multiple dates - first on 22 December 2010 and then, for a second time, on 4 January 2011.
[19] I note that while there is dispute as to whether the termination of employment was brought about by a constructive dismissal or a resignation simpliciter, it was the applicant who determined to act on the alleged repudiation of the contract of employment and he determined that 22 December 2010 was the operative date of the constructive dismissal. That date was advised and reiterated to the respondent in CLL's various correspondence. It seems to me that no amount of cavilling by the respondent could have altered the fact that the applicant had unilaterally (as was his prerogative) determined to elect to treat the employment relationship as terminated by a constructive dismissal on 22 December 2010. Issues as to employer assent or concurrence do not relevantly arise here so as to alter that date to 4 January 2011 or, indeed, any other date.
[20] I conclude the date of the termination of employment, relevantly the date the (alleged, constructive) dismissal took effect, was 22 December 2010. Given that conclusion, the provisions as to extension of time thereby arise.
[21] Mr Stewart referred to the principles applying to extensions of time arising from cases such as Brodie Hans v MTV Publishing Ltd as [1995] 67 IR 198 and Blythe v Moreton Bay Regional Practice Network Ltd t/as Moreton Bay General Practice Network Inc [2011] FWA 733. As to the meaning of exceptional circumstances, Mr Stewart referred to Johnson v Joy Manufacturing Co Ltd t/as Joy Mining Machinery [2010] FWA 1394. Mr Stewart submitted that if his principal submission that the application was filed within time were not accepted, then the application would need to have been filed by 5 January 2011 to be within time - with the result that the application was only six days late. Importantly, the applicant had at all times been pressing his rights in relation to his employment with the respondent. On 31 December 2010, CLL had considered the possibility, among other things, of an unfair dismissal application - although at that time it was only being contemplated given the dispute as to whether the employment relationship was still on foot. It could not be said that the delay was due to the applicant's failure to press his rights in this matter.
[22] Ms Carayannis submitted that having regard to the principles discussed in Cheval Properties Pty Ltd trading as Penrith Hotel/Motel [2010] FWA 7251 there was no basis to conclude the applicant had established exceptional circumstances warranting an extension of time.
[23] Mr Stewart's submissions principally relied on representative error as the reason for the delay. On the basis of CLL's assertions in its correspondence that 22 December 2010 was the date of the constructive dismissal, time was "ticking" from that date. He submitted there was, however, a period of dispute with the respondent as to whether there had been a termination of the employment relationship. The CLL correspondence dated 4 January 2011 may have finally put beyond doubt the date of the termination of employment but, as against that, the second CLL solicitor gave evidence in which he did not shirk from responsibility or seek to attribute to the applicant any responsibility for the delay. In circumstances where the evidence indicated the second CLL solicitor had acted diligently, it would be a particularly harsh outcome for the applicant if an extension were not granted. The type of representative error was atypical, given the dispute about whether there had been a termination of employment; and the ambiguity about the date of termination of employment was attributable to the respondent. The applicant made all reasonable efforts to ensure his application was made in accordance with the Act and was entirely blameless for any delay. If any error occurred, it was representative error and, further, Fair Work Australia should nonetheless find that CLL made reasonable efforts to ensure the application was made within time. He submitted that representative error together with matters such as the blamelessness of the applicant, the shortness of the delay, the impact of public holidays and the merits of the applicant's claim of constructive dismissal combined to constitute exceptional circumstances favouring an extension.
[24] Ms Carayannis submitted the only relevant dispute in this matter was the dispute about the nature of the termination of employment. As to that, there was no confusion on the applicant's part as to the effective date of the termination of employment and of his intention not to return to work, given the applicant's instructions to CLL as conveyed in CLL correspondence. The correspondence from the applicant and CLL disclosed familiarity with industrial entitlements and remedies. Certain correspondence not only threatened legal action, but sought advice as to whether ClubsNSW could accept service of such process. Given the threats of legal action that coincided with the advice about the alleged constructive dismissal on 22 December 2010, there was no reasonable explanation before Fair Work Australia as to why the application was not filed within the stipulated time. To the extent the applicant relied on the public holidays after 22 December 2010, Ms Carayannis noted that CLL had conveyed communications on behalf of the applicant on 31 December 2010 and 4 January 2011, being dates within the time limitation period, but had not relevantly also filed the unfair dismissal application.
[25] Ms Carayannis also submitted the applicant could be considered to be well-aware of the requirements for making an unfair dismissal application, given his senior managerial role and required industrial relations-related proficiencies thereto pursuant to the relevant modern award and also by virtue of the fact that he had instructed CLL to threaten to commence proceedings on a number of occasions before filing this application. Ms Carayannis submitted the applicant was not blameless concerning the late filing. Rather, the applicant had many opportunities to instruct CLL to commence proceedings within time, but failed to do so; he simply did not act within time on the earlier threats to commence proceedings.
Person first became aware of the dismissal after it took effect
[26] Mr Stewart submitted it cannot be said the applicant first became aware of the dismissal after it had taken effect. There was clear dispute, with the respondent asserting the dismissal had not taken effect.
Any action taken by the person to dispute the dismissal
[27] Mr Stewart submitted the applicant actively challenged the dismissal and did not idly let time slip by. Further, the actions to dispute the dismissal should not be viewed in isolation from the applicant's actions preceding the termination of employment.
[28] Ms Carayannis submitted the applicant took no meaningful steps to dispute the alleged constructive dismissal, other than to send correspondence seeking a monetary settlement and threatening to commence proceedings.
Prejudice to the employer including prejudice caused by the delay
[29] In submitting that the delay would not prejudice the respondent, Mr Stewart referred to the impact of public holidays in the period following 22 December 2010. He also submitted that recollections would not have faded and the employer was on notice there was a live dispute.
[30] Ms Carayannis submitted the respondent was encountering well-documented financial difficulties and that to defend this application would give rise to additional, unreasonable financial burdens. The respondent had made endeavours to resolve matters in dispute in the months preceding 22 December 2010, and then first became aware of the unfair dismissal application only on 11 February 2011. Given the time lapse, the respondent had reasonably assumed the applicant had "moved on".
[31] Mr Stewart submitted the merits of the application are strong, having regard to the bullying and harassment that resulted in the applicant becoming unwell. While the allegations as to constructive dismissal may well be contested by the respondent, it could not be said the application was an obviously futile or unmeritorious claim.
[32] Ms Carayannis submitted that the various matters identified in the respondent's evidence militated against concluding the application had any merit. There was also (hearsay) evidence that the applicant had stated he had resigned.
Fairness as between the person and other persons in a similar position
[33] Mr Stewart submitted that matters concerning fairness as between the applicant and other persons in a similar position were "neutral" in relation to the application. On the other hand, Ms Carayannis submitted the applicant was "a victim of his own device", given matters such as his advantageous access to legal representation from an early stage and his own, inferred professional knowledge of legal remedies available to him. Based on such matters, Ms Carayannis submitted the applicant was in a position of comparative advantage as against other persons in a similar position.
[34] After I had reserved my decision, Mr Stewart filed further written submissions in addition to the submissions already made. Given that Ms Carayannis objected to the receipt by Fair Work Australia of further submissions and as I had not given leave for the making of further submissions by either party when I had reserved my decision, I do not propose to accept Mr Stewart's further written submissions and/or re-open the proceedings for a reply by ClubsNSW to the substance of those further submissions.
[35] The applicant did not personally provide any evidence in the proceedings. Drawing from the available evidence adduced by the second CLL solicitor, it appears the applicant determined to treat 22 December 2010 as the date on which the constructive dismissal took effect and, it may be observed, that date was entirely of the applicant's own selection. Correspondence from the first CLL solicitor dated 22 December 2010 and 31 December 2010 commented on the applicant's intentions concerning the commencement of unfair dismissal proceedings, but did not advise that CLL actually had been instructed to commence such proceedings at that time. For example, the CLL correspondence noted, as to a without prejudice settlement proposal, that "a suitable response will avert litigation".
[36] Ms Carayannis noted that financial proposals had been made, but with mere threats of legal action that were not then acted upon within time. As to this, it seems unclear to me why the first CLL solicitor advised in correspondence dated 31 December 2010 that the applicant's without prejudice offer would remain open until 5.00pm on 10 January 2011, unless earlier withdrawn. I say this is unclear because, absent a financial proposal on terms acceptable to the applicant so as to avert litigation, any filing of an application on or after 10 January 2011 would have been out-of-time. There is nothing to suggest there was any doubt on the part of the first CLL solicitor or the applicant as to the date of the termination of employment being 22 December 2010 when this time period for the settlement proposal was put on 31 December 2010.
[37] At the hand-over meeting between the first CLL solicitor and the second CLL solicitor on 31 December 2010, the first CLL solicitor informed the second CLL solicitor that an application for an unfair dismissal remedy was "being contemplated" by the applicant.
[38] On 4 January 2011, the second CLL solicitor sent correspondence to ClubsNSW reiterating 22 December 2010 as the relevant date of the constructive dismissal. The correspondence did not otherwise contain any advice, for example, that the applicant had given CLL instructions to so proceed with an unfair dismissal application.
[39] As to reason for the delay (s.394(3)(a)), I note Mr Stewart's submission that the second CLL solicitor did not seek to attribute any part of the delay in filing to the applicant and the applicant's case was advanced as being one involving delay attributable to representative error. Despite the submissions by Mr Stewart, the available evidence does not, however, lead to the view that the applicant made all reasonable steps to ensure his application was made in accordance with the Act.
[40] CLL had been instructed by the applicant since before 22 December 2010 as to the alleged bullying and mistreatment and its correspondence dated 22 December 2010 indicated that the applicant had instructed CLL to threaten the commencement of legal action. However, there was no evidence before Fair Work Australia as to the date the applicant instructed CLL to proceed with (i.e. rather than threaten) legal action comprising an unfair dismissal application in relation to the claimed constructive dismissal on 22 December 2010. Similarly, there was no evidence that CLL failed, for example, to act within time on the applicant's instructions once he had given those instructions within time, although I have noted the evidence of the second CLL solicitor that at the time of sending correspondence dated 4 January 2011 to ClubsNSW it became clear in his mind that the applicant's employment had "now ceased" with the respondent; but, as to that, I have noted also that the second CLL solicitor's correspondence dated 4 January 2011 specifically reconfirmed 22 December 2010 as being the date of the constructive dismissal. Although there was evidence that as at 31 December 2010 an unfair dismissal application was being "contemplated" and that a financial proposal had earlier been put to avert litigation (the offer was expressed by the first CLL solicitor to remain open until 5.00pm on 10 January 2011, unless earlier withdrawn), there was no evidence as to the date on which the applicant, in the end, instructed CLL to proceed with the making of the unfair dismissal application that had been under contemplation. That is, there was evidence that "on or about 4 January 2011" the applicant informed the second CLL solicitor that he had attended the respondent's premises and had been given a letter. A consideration of these matters suggest the applicant's instructions to proceed with the making of an unfair dismissal application had not been given as at 31 December 2010 and that the applicant next contacted CLL on or about 4 January 2011, but only to advise that he had attended the respondent's premises and had been given a letter. There was evidence also that, from 7 January 2011, the second CLL solicitor began attending to the preparation of the unfair dismissal application that was then filed on 11 January 2011. As Ms Carayannis noted, the applicant had foreshadowed legal action, but, for reasons that have not been reasonably explained, such action did not then proceed within the stipulated time-frame. This lateness of the application in this case does not appear to involve any representative error of the type, for example, recently considered by the Full Bench in M N Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728.
[41] I note also that the delay in making the unfair dismissal application was comparatively short and that recollections would not have been affected by the shortness of the delay, but the application was out-of-time and the statutory provisions as to exceptional circumstances thereby arise irrespective of the shortness of the delay. To the extent that reliance was placed on the public holidays arising during the period in question, I do not think that exceptional circumstances could be considered to arise in this case from public holiday-related delay. In this respect, as Ms Carayannis noted, the evidence indicated that CLL sent correspondence concerning the applicant around the public holiday-affected period relevantly in question, but an unfair dismissal application was not otherwise also filed within time during that period.
[42] The applicant was aware of the date the dismissal took effect as it was he who determined the date in question as being 22 December 2010 (s.394(3)(b)). There is no evidence the applicant was in any doubt that 22 December 2010 was the relevant date, and all correspondence concerning the matter from CLL confirmed that date.
[43] The evidence did not suggest the applicant took steps to challenge the dismissal itself until steps were taken in relation to the making of this application (s.394(c)(c)), although, among other matters, financial proposals to avert legal action were communicated to ClubsNSW. While the evidence indicated the applicant had been in dispute with the respondent prior to 22 December 2010, those events preceded the date relied on as the date of the constructive dismissal and there may be doubt as to whether events preceding 22 December 2010 could be construed as being steps taken to dispute the dismissal itself. Although the respondent had been on notice that there was, as Mr Stewart put it, a "live dispute", nothing actually came of that in terms of the making of an unfair dismissal application within the legislative timeframe despite correspondence suggesting the commencement of action was imminent, e.g., CLL correspondence seeking advice whether ClubsNSW would accept service of process.
[44] As to prejudice to the employer (s.394(3)(d)), the evidence indicated that the respondent is encountering financial difficulties and that defending this application would exacerbate those difficulties. There was nothing to contradict the evidence in this respect, and I accept it as evidence as to prejudice.
[45] Mr Stewart submitted that the merits of the application were strong and the application could not be said to be, for example, futile. However, the detailed evidence from the respondent's chairman, as it touched upon matters that may be relevant to a consideration of "merits" within the meaning of s.394(3)(e) of the Act, unsurprisingly tended generally to weigh against the submissions by Mr Stewart that the merits of the application are strong. The only material advanced during the hearing in the evidence in the applicant's case to perhaps counter the evidence adduced by the respondent was a WorkCover medical certificate annexed to the statement of the second CLL solicitor citing severe workplace bullying as the cause of an anxiety-related injury. As to that, a workers' compensation claim thereto was made by the applicant, but that claim was subsequently withdrawn by the applicant.
[46] As to fairness as between the applicant and other persons in a like position (s.394(3)(f)), I think there was some suasion to the submissions advanced by Ms Carayannis that the applicant was better-placed to attend to the filing within time of his application under s.394 of the Act than would be the case with other persons in a similar position. The applicant, rather than the respondent, determined the date of the termination of employment and, in so determining, he had prior access to legal advice and representation. While Ms Carayannis submitted that the applicant may be expected to be well-aware of provisions relating to employment law, given the award-referenced proficiencies required for managers of his rank, the extent of the applicant's personal knowledge of such matters was, however, indeterminate on the evidence, save only that early correspondence he personally sent to the respondent indicated an awareness of the concept of constructive dismissal.
[47] Fair Work Australia may allow a further period beyond fourteen days for this application to be made if satisfied that there are exceptional circumstances, taking into account the matters specified in s.394(3)(a)-(f) of the Act. Having considered the evidence and submissions advanced in the proceedings as to the cumulative considerations in s.394(3)(a)-(f), I have not been satisfied as to the existence of exceptional circumstances and, therefore, an order dismissing the application has been issued in conjunction with the publication of this decision.
Printed by authority of the Commonwealth Government Printer
Linsell
Cronulla Sutherland Leagues Club Limited t/as Sharkies [2011] FWA 3193