Fair Work Act 2009_

s.394 - Unfair dismissal

[1] Mr Peter Matthiessen alleged the termination of his employment on 19 November 2015 was unfair.

[2] His unfair dismissal application lodged on 3 February 2016 was not made within 21 days of the date of the dismissal.

[3] At the hearing Pilbara Port Authority sought permission to appear. It was submitted that the matter involved some complexity due to the fact that an application had been made to the Western Australian Industrial Relations Commission which had not been withdrawn. Further it was submitted that the Port Authority did not have an in house advocate and its HR Director was also a witness in the proceeding. It was submitted that it cannot represent itself effectively and it would be unfair not to permit it to be represented. It further submitted that just because Mr Matthiessen was unrepresented was not a reason to deny the Port Authority representation. It further submitted that Mr Matthiessen was competent to represent himself. Mr Matthiessen did not oppose permission being granted. I decided to allow the representation. I accept the submission that it would be unfair not to permit the Port Authority to be represented as it was not able to represent itself effectively.

[4] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 where the Full Bench said: [13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

[6] Mr Matthiessen said that the reason for the delay was because he lodged his application with the WAIRC. He attached a copy of the application which shows that it was lodged on 16 December 2015. The WAIRC allows 28 days for employees to lodge their claim.

[7] The form completed by Mr Matthiessen advises that if the employer is a trading, financial or foreign corporation the Commission may not have jurisdiction to deal with the matter. Mr Matthiessen did not serve the document on the Port Authority in accordance with the requirements of the Commission and only served a copy on 7 January 2016. On 15 January 2015, the Port Authority served its response and it put Mr Matthiessen on notice that it was a national system employer and that the WAIRC did not have the jurisdiction to hear the matter.

[8] Mr Matthiessen attended the WAIRC conciliation conference on 3 February 2016 and filed this application the same day. Mr Matthiessen took no action from 15 January 2016 to 3 February 2016 to lodge this claim. He did not seek any advice in relation to the objection raised by the Port Authority. He said he decided, given he had a conciliation date, to await the outcome of that before deciding what to do.

[9] Mr Matthiessen said that, prior to lodging his claim with the WAIRC, he sought advice in relation to the appropriate body to lodge his application form from both the Fair Work Commission and the WAIRC. He said he completed the "am I eligible" checklist on the Commission's website. That checklist advised employees who are employed in Western Australia and who advise that they are employed by the Western Australian State Government that:

"the following employees are not covered by the national workplace relations system:

• employees of non-constitutional corporations (e.g. businesses that are sole traders and partnerships)

• employees of local governments that are not constitutional corporations."

[10] He then contacted the FWC and told them that the Port Authority was a state entity and was told to contact the WAIRC. He then contacted the WAIRC and lodged his application.

[11] Mr Matthiessen said it took him the 27 days to lodge with the WAIRC because he was waiting for his personnel file and the Christmas/New Year period was the cause of the delay in sending documentation to the Port Authority.

[12] The Port Authority submitted that Mr Matthiessen should have been aware that he was a national system employee. Mr Miles gave evidence that Mr Mathiessen was employed under a contract of employment which provided, at clause 16, for the resolution of disputes and refers disputes to Fair Work Australia for resolution. He further gave evidence that Mr Matthiessen was provided with a copy of the Fair Work Information Statement. Attached to Mr Miles contract is a note about Mr Matthiessen's induction which was conducted by telephone. That note advised that the Fair Work Information Statement was handed out. It is not clear how this occurred. While Mr Matthiessen did not question Mr Miles about his evidence he said in reply that he could not recall receiving a Fair Work Information Statement.

[13] The Port Authority submitted that there is nothing unusual about employees filing in the wrong jurisdiction and further, it submitted that obtaining incorrect advise was not exceptional.

[14] I am not satisfied that Mr Matthieson had a reasonable explanation for the delay. I do not accept that Mr Matthieson was provided with incorrect advice by the FWC staff. On his own evidence he told the staff member he was employed by a state entity. Further there was nothing in the checklist completed by Mr Matthiessen that told him that he was not a national system employee. Even if I accepted that lodging in the wrong jurisdiction explained some of the delay, Mr Matthiessen's failure to serve the documents on the Port Authority caused further delay as he did not receive prompt advice that the Port Authority objected to the application because he was a national system employee. Further, once Mr Matthiessen was alerted to the objection he should have sought advice. He was not entitled to do nothing and await the outcome of the conciliation before lodging his application with the FWC.

[15] I am therefore not satisfied that Mr Matthiessen had a reasonable explanation for the whole of the delay and this weighs against a finding that there are exceptional circumstances.

S.394(3)(b) Whether the person first became aware of the dismissal after it had taken effect

[16] Mr Matthiessen was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding of exceptional circumstances.

S.394(3) (c) Any actions taken by the person to dispute the dismissal

[17] Mr Matthiessen advised the Port Authority that he disputed the decision to make his position redundant prior to the decision being made. He did not dispute the dismissal after it took effect apart from lodging an unfair dismissal application form. He did not then serve the application until 6 January 2016. As such, the Port Authority was not aware that he was disputing the dismissal until some 48 days after the dismissal took effect. This weighs against a finding of exceptional circumstances.

S.394(3)(d) Prejudice to the employer (including prejudice caused by the delay)

[18] The Port Authority complains that it has already had to respond to the WAIRC claim and participate in the conciliation conference. It says that claim has not been withdrawn. I accept that there is prejudice to the Port Authority but it is not such as to weigh against a finding of exceptional circumstances.

S.394(3)(e) The merits of the application

[19] Mr Matthiessen disputed the genuineness of his redundancy. He said he could have been redeployed. The Port Authority submitted that the redundancy was genuine and despite not having an obligation to consult with Mr Matthiessen, it did. Further it said there were no appropriate positions to redeploy Mr Matthiessen to.

[20] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

S.394(3)(f) Fairness as between the person and other persons in a similar position

[21] There were no submissions that there were any persons in a similar position.

[22] I am not satisfied that there are exceptional circumstances. Mr Matthiessen did not have a reasonable explanation for the whole of the delay and none of the other criteria weigh in favour of such a finding. I decline to grant Mr Matthiessen an extension of time to lodge his application and accordingly his application for an unfair dismissal remedy must be dismissed.

Ms Rosemary Roach and Mr Damien Miles representing Pilbara Ports Authority.

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