Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Summary: extension of time - whether legal representative error - authority to represent Applicant's legal affairs - family friend - Rule 14.

[1] This matter concerns an application by Mr Robert John Cliff ("the Applicant") under section 394 of the Fair Work Act 2009 ("the Act") seeking an unfair dismissal remedy in relation to the dismissal from his employment by Mr John McKenzie, manager of Allaro Homes ("the Respondent"), on 12 November 2012.

[2] This matter has not previously been subject to a conciliation for reasons that the Respondent objected to the Fair Work Commission further dealing with this application until it determined whether the application should be permitted given that it was lodged some three days beyond the statutory time frame within which it is anticipated that an application of this kind would be lodged ordinarily.

[3] Section 394(2) of the Act (as it was at the time of the dismissal) requires applications for an unfair dismissal remedy made under Division 4 of Part 3-2 of the Act to be made either:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as the FWC allows under s.394(3). (my emphasis)

[4] Section 394(3) of the Act confers a discretionary power on the Fair Work Commission to allow a further period for an application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(b) whether the person first became aware of the dismissal after it had taken effect; and

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

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

(f) fairness as between the person and other persons in a similar position. (my emphasis)

[5] The Applicant maintains that he was terminated by correspondence dated 2 November 2012, signed by Mr John McKenzie, manager of Allaro Homes. The dismissal is said to have arisen as a result of a number of complaints by tradespersons engaged by the Respondent in relation to the Applicant's allegedly abusive conduct.

[6] The correspondence indicated that the Respondent would be terminating the Applicant's employment effective 12 November 2012, with payment in lieu of notice.

[7] The Applicant did not receive the correspondence until Friday, 9 November 2012, upon returning from a period of leave.

[8] Consequently, as the application was made on 29 November 2012, it was agreed by the parties that the application was made three days outside the time frame stipulated at s.394(2)(a) of the Act.

[9] The Applicant contended that the explanation for the delay resided in advice he received from a "family friend" who was a barrister.

[10] That person - Ms Tamara Robyn Thomson - gave evidence herself that she had practised as a government lawyer predominately, and that the Applicant was a long-term friend of her parents.

[11] Ms Thomson stated that her previous dealings had been with the state industrial relations tribunal and that she:

"was aware that Mr Cliff had 21 days in which to file any application for unfair dismissal. Having been a government lawyer for the entirety of my career, I was unaware at the time that private employee disputes were dealt with by Fair Work Australia."

[12] The Applicant claims that on 27 November "the family friend" advised him that she had been in error in advising that he had 21 days in which to make his application for an unfair dismissal remedy. Ms Thomson appears to have uncovered the requirement of s.394(2)(a) of the Act when she had investigated the FWA website (as it was) and uncovered the "14-day" statutory requirement.

[13] In summary, the Applicant claims that the application should be allowed, despite it being 3 days in excess of the statutory time frame, because of legal representative error. That is, he denies that he is responsible for his application not being in compliance with the Act, and maintains that the relevant facts give rise to exceptional circumstances.

[14] The Applicant refers to Ms Thomson as being a "family friend" or "friend of the family who is a barrister". Though Ms Thomson, on her evidence, is admitted to the bar at the Supreme Court of Queensland, she entered no legal professional relationship with the Applicant for the purposes of representing him in his application for an unfair dismissal remedy. That is, Ms Thomson at no time possessed a formal authority to represent and to receive instructions about the Applicant's legal affairs.

[15] It appears very much the case that Ms Thomson carried out nominal research on the Applicant's behalf as might be expected of such an informal relationship.

[16] I am not inclined to the view that Ms Thomson was acting as the Applicant's "legal representative". The Applicant appears not to have sought Ms Thomson out, as Ms Thomson claimed she offered him her advice. Neither the basis of the relationship nor the steps taken by Ms Thompson to represent the Applicant's interests are suggestive of anything other than informality and personal relationships.

[17] The Applicant's circumstances put him in no different position than any applicant who has sought information from a member of the general public in relation to an application for an unfair dismissal remedy.

[18] Yet, even if this were not so, the argument as led by the Applicant only accounts for one day of three days the application was late (in relation to the requirements of s.394(2)(a) of the Act). This is because he agreed and Ms Thomson opined that she informed him on 27 November 2012 that his application was one day out of time. If the Applicant had lodged at that time by any of the means available to him under the Rules of the Commission, his application would have been one day late.

[19] Rule 7 of the Commission reads as follows (in part):

(a) by physically delivering the document to a FWA office between the hours of 9am and 5pm; or

(b) by email (see rule 20); or

(c) by fax (see rule 21); or

(d) if FWA has made provision on its website for lodging a document by completing and submitting a web-based form - by completing and submitting that form in accordance with the instructions accompanying the form on the website.

[20] Rule 14 of the Commission relates specifically to the lodgement of unfair dismissal applications:

Despite rule 6, an application for an unfair dismissal remedy may be made by telephone at a telephone number approved for that purpose, provided that:

(a) the applicant pays the application fee prescribed in the Regulations by credit card, or applies for a waiver of the fee at the time the telephone application is made; and

(b) the applicant signs and returns to FWA a copy of the written application generated by FWA (amended as necessary to correct any errors) together with a completed application for waiver if a waiver of the fee has been sought.

[21] However, the Applicant did not take steps to make the application for a further two days. It was his responsibility to make the application. The Applicant has no effective explanation as to why it took him a further two days to make the application after such time as Ms Thomson had advised him of his predicament. This was, he said, as quick as his experience had allowed him to proceed.

(b) whether the person first became aware of the dismissal after it had taken effect

[22] There is no evidence that brings this matter into my consideration.

(c) any action taken by the person to dispute the dismissal

[23] The Applicant corresponded with his former employer and agitated his disagreement with his dismissal, and sought to resolve the matter. That is, the Applicant disputed the dismissal other than by making this application only.

(d) prejudice to the employer (including prejudice caused by the delay)

[24] There is no evidence of any material kind that the employer is prejudiced by a prospective decision to allow the application before me.

[25] As is ordinarily the case, there has not been an opportunity to ventilate the merits of the application in any comprehensive way, let alone to subject the evidence to the process of examination. The scope of argument in relation to the merits of the matter is quite wide. The Respondent contends the Applicant was warned at previous times about his supervisory style, with the Applicant rejecting such claims. The Respondent claimed the Applicant effectively damaged his business by acting abusively towards the trades contractors. The Applicant argued that he was protecting the business and ensuring the trades generated a satisfactory output, and in any event whilst he may has spoken aggressively (as is common in the building industry) he did not speak abusively towards them. I have not been in a position to reach a determinative view as to whose construction of the relevant events is truthful and accurate, and whose is not. The merits of the application therefore impact in neutral terms upon the exercise of discretion that is now before me.

(f) fairness as between the person and other persons in a similar position

[26] There is no evidence adduced in these proceedings that there is an issue of fairness arising between the Applicant and another person in a similar position.

[27] The Applicant was given advice from a family friend and entered into no formal legal professional relationship. That advice was in error. However, despite the family friend being legally qualified, the error does not constitute legal representative error. The Applicant's position is no different from any other applicant who seeks advice from a member of the public or personal associate on the way to making an application for an unfair dismissal remedy. The application should be treated in no different way, either.

[28] But these circumstances only explain the delay in part. The bulk of the period for which the Applicant's application was delayed was the responsibility of the Applicant himself. And for that two day period he has no effective explanation at all, other than that was the time it took him to get around to completing the application.

[29] In the end, and once the time sensitivity of the application became known and the FWA website had been accessed, the Applicant merely was dilatory in his further efforts to make the application.

[30] Taking into account all the matters above, including the steps taken by the Applicant to challenge his dismissal and the absence of prejudice to the Respondent in allowing the application, I am not of the view that the Applicant's circumstances can be characterised as "exceptional circumstances".

[31] The application for an unfair dismissal remedy is dismissed.

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