Fair Work Act 2009

s.365 - General protections

Shane Namour as trustee for the Namour Trust T/A Namour Transport

Application to deal with contraventions involving dismissal - jurisdictional objection - extension of time - representative error - extension granted - matter to proceed to conference.

• [1] Mr Chris Falefatu (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 3 July 2024. The Applicant claimed that adverse action was taken against him by Shane Namour as trustee for the Namour Trust T/A Namour Transport (the Respondent) under s.340 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Applicant was dismissed on 3 May 2024. The Application is 40 days out of time from the 21-day statutory timeframe prescribed under s.366(1)(a) of the Act. The Application can only be accepted if the Commission allows taking into the factors of s.366(2) which I have considered below.

Should an extension of time be granted under s.366(2) of the Act?

• [3] Section 366 of the Act provides when a further period is granted to accept a late application.

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position.

• [4] There must be exceptional circumstances in order to be granted a further period to lodge this application. In summary, exceptional circumstances are:

• Out of the ordinary course, unusual, special or uncommon. It does not need to be unique, unprecedented or vary rare.

• • It can be 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. [1]

• [5] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however it must be an acceptable[2] or a reasonable explanation.[3]

• [6] The Applicant submits that the reason for delay is due to representative error. Mr Hunter Trotman is the Applicant's representative. He sent an email to a Registry address without attaching the General Protections application on 23 May 2024 at 2:03pm. The email states:

"We refer to the above matter and attach by way of lodgement a Form 8 on behalf of our client Mr Chris Falefatu."

• [7] Mr Trotman thought the application was filed within the statutory timeframe and did not read an email regarding the Form F8 which identified that there was no Form 8 attachment and requesting that he submit a form with details of the Application. The Commission responded to this correspondence stating that there was no completed Form attached at 2:28pm.

• [8] Mr Trotman states that he did not read this communication from the Commission until 3 July 2024. Mr Trotman then sent the completed Form F8 on the same day.

• [9] Representative error is generally accepted as an exceptional circumstance of delay if the Applicant is blameless is causing the delay. The Full Bench summarises when a representative error is considered an exceptional circumstance:

"In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless, and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.

(iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted."[4]

• [10] I am satisfied that the Applicant had been communicating with his representative about his application during the 21-day statutory timeframe, and that the assumption that the application was filed was undertaken through his representative.

• [11] The Applicant enquired with Mr Trotman on 21 June 2024 when a listing date of conciliation would be provided. Mr Trotman advised the Applicant it would take 6-8 weeks for the Commission to give a listing date. This indicated that the Applicant was blameless as there was no reason for him to believe that he was required to do anything to follow up for at least 6 weeks. It was only after the representative found the error a month after the email sent on 3 July 2024, that the error come to light.

• [12] The Applicant's representative took active steps to lodge the application when he found out that the application was not filed. Given that it was an error because of the representative, I find that there was an exceptional circumstance for the reason of delay. This factor weighs in favour of granting an extension of time.

(b) any action taken by the person to dispute the dismissal;

• [13] The Applicant sought his legal representative on 8 May 2024, three days after dismissal and actively took steps in preparing his application. This factor weighs in favour of granting an extension of time.

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

• [14] The Respondent has raised some prejudice to the employer caused by the delay. Although I acknowledge that there is some prejudice that the Respondent was required to prepare for this hearing instead of going straight to a conciliation, the primary onus in establishing the extension of time is on the Applicant. This is a neutral factor.

• [15] In Kornicki v Telstra-Network Technology Group,[5] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [16] Without a hearing on the merits, it is difficult to consider the merits of the Applicant's claim. I am satisfied that the Application was not without merit. Accordingly, I find this a neutral factor.

(e) fairness as between the person and other persons in a like position.

• [17] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[6] Extensions of time have been granted in Rowe v National Pump & Energy Pty Ltd [2024] FWC 2103, and Riazi v Santos Limited [2024] FWC 536 granting an extension of time for representative error. This factor weighs in favour of granting an extension of time.

I find that there are exceptional circumstances in considering the above factors and the Commission may consider whether to allow a further period for the application to be made. I exercise my discretion to extend the period for the Application to be made to 3 July 2024. My Chambers will program the matter for conciliation.

K. Zhou appearing for the Respondent from Irwell Law

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[2] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].

[3] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].

[4] Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728 at [25].

[5] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[6] Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818, [31].

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