[2018] FWC 1296

Fair Work Act 2009

s.394 - Unfair dismissal

Northern SEQ Distributor - Retailer Authority T/A Unitywater

Application for an unfair dismissal remedy - extension of time - representative error.

[1] Mr McFarlane commenced employment with Northern SEQ Distributor - Retailer Authority T/A Unitywater (Unitywater) in February 2008.

[2] On 7 December 2017 Mr McFarlane lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming that he had been unfairly dismissed by Unitywater. His application was made nine days outside the 21 day period prescribed by s.394(2) of the Act.

[3] The matter was listed for hearing on 5 March 2018 to determine whether Mr McFarlane should be granted an extension of time pursuant to s.394(3) of the Act to make his application. At the hearing Mr G Hutchinson appeared on behalf of Mr McFarlane and Mr M Rodgers appeared on behalf of Unitywater.

[4] Section 394(3) of the Act provides:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.

[5] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on the Applicant.

[6] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd[1] 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."

[7] I now deal with each of the provisions of s.394(3) of the Act.

[8] Mr Hutchinson submitted that representative error was the reason for the late filing of Mr McFarlane's application. It was submitted that Mr McFarlane signed the unfair dismissal application on 24 November 2017 at the offices of his legal representative, within the 21 day time frame prescribed by the Act.

[9] Mr McFarlane gave evidence that upon signing the application he "expected and had no reason to expect otherwise, that the application would be lodged with the Fair Work Commission".[2] At the hearing Mr McFarlane gave evidence of his actions following the dismissal and stated that once he had completed and signed the application it was left "in the hands of [his] lawyers".

[10] Unitywater submits that Mr McFarlane and his representative were aware from 27 October 2017 that termination of Mr McFarlane's employment was a possibility. It submits that it is unclear why Mr McFarlane did not take steps to challenge his dismissal earlier than the date on which he signed the unfair dismissal application, some 17 days after the dismissal. It submits that there is no evidence of steps taken by Mr McFarlane to follow up the matter with his lawyers to ensure that it was lodged in time. Unitywater contends that had Mr McFarlane followed up the matter, there may have been a shorter delay in filing the application.

[11] The general approach of the Commission where representative error is relied upon to explain the late lodgement of an application has been considered by a number of Full Benches. The following general propositions, summarised by the Full Bench in Davidson v Aboriginal and Islander Child Care Agency,[3] 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.

[12] In Officeworks Ltd v David Parker,[4] a Full Bench of the Commission said:

"[14] We consider that this is also the approach which should be adopted in relation to s.394(3) of the Act and the late lodgement of unfair dismissal applications. Representative error may be a sufficient reason to allow a further period for an application to be made. However all the factors in s.394(3) must be taken into account in determining whether there are exceptional circumstances that warrant extending the time limit.

[15] The approach which has been adopted by the Commission in relation to representative error applies principles which have been applied in the courts in relation to delays or negligence by solicitors in making applications or instituting proceedings within time limits.

[16] In the circumstances of the present matter we consider that, in deciding whether or not representative error will constitute an acceptable explanation for delay in the lodgement of the application, consideration should be given to a variety of factors including the extent to which the applicant's own conduct contributed to the delay and the nature of the representation concerned.

[17] Under the Act, there is no general limitation as to whom a party might be represented by in proceedings before the Commission. However a person may only be represented by a lawyer or paid agent in a matter before the Commission, including by making an application or submission on behalf of the person, with the permission of the Commission. In general, the legislative policy is that persons will act on their own behalf in making applications and submissions to the Commission. In so doing, the person may seek the advice or support of other persons. As the Senior Deputy President observed in relation to unfair dismissal matters in her reasons for decision:

[11] Applicants are regularly represented before the Commission by a variety of persons who are not legally qualified or even experienced in industrial law. Solicitors do not have a right to appear in the Commission. Permission to appear must be specifically granted.

[12] Support persons who assist applicants to lodge their applications and appear before the Commission may be family members, friends and even sometimes social workers or Church support persons.

[18] In circumstances where 'representative error' is relied upon in Commission proceedings as an excuse or explanation for the failure to meet time limits, it is appropriate to have regard to the professional qualifications and expertise of the representative concerned. This will enable an assessment to be made as to the extent to which it was reasonable for a party to rely upon the skills and expertise of the representative in acting on their behalf. Clearly where the representative is a lawyer, an experienced industrial advocate, or an officer or employee of an organisation of employers or employees, it might more readily be concluded that representative error provides an acceptable explanation for the delay and such error should not be blamed upon the party concerned. However where the representative chosen has no experience or expertise in the area of legal and employment matters, there might be less justification for reliance on that person and the responsibility for delays or other errors might be attributed to the party concerned.

[19] In general, representative error may be more readily accepted as an explanation or excuse where the person relied upon has professional qualifications or expertise in dealing with legal and employment matters than where reliance is placed on a family member or friend." (citations omitted)

[13] Having considered the evidence before me and adopting the above approach, I am satisfied that Mr McFarlane has made out an acceptable explanation of the reason for the delay in lodging the application. Mr McFarlane was entitled to rely upon his legal representative to act on his instructions. In circumstances where Mr McFarlane has provided his completed application to a qualified legal professional within the 21 day time frame, the delay in the filing of the application cannot be attributed to him.

[14] This weighs in favour of a finding that there are exceptional circumstances.

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

[15] There is no dispute that Mr McFarlane was advised of his dismissal on 7 November 2017. I find this weighs against the granting of an extension of time.

Any action taken by the person to dispute the dismissal

[16] It was submitted that Mr McFarlane's legal representative put Unitywater on notice in correspondence prior to the dismissal that if a decision was taken to terminate Mr McFarlane's employment he reserved the right to rely on that correspondence for the purpose of an unfair dismissal application. Mr Hutchinson submitted that Unitywater had been aware from this time that the dismissal would be disputed.

[17] Unitywater submits that following the termination of his employment, Mr McFarlane did not advise that he intended to dispute the dismissal.

[18] I accept that Mr McFarlane's legal representative put Unitywater on notice in correspondence prior to the dismissal that his dismissal would be disputed, however there was no correspondence post-dismissal. Overall, I find that this is is a neutral factor in determining whether to grant an extension of time.

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

[19] Unitywater submits that it was "entitled to arrange its affairs and resources on the basis that an unfair dismissal claim can no longer be made beyond the lodgement period, except in exceptional circumstances"[5] and that given the nine day delay in the filing of the application it was entitled to assume that Mr McFarlane had decided not to make an application.

[20] Mr McFarlane submits that there has been no prejudice to Unitywater.

[21] I am not persuaded that granting an extension of time would result in a prejudice to Unitywater. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

[22] For the purpose of determining whether to grant an extension of time, the Commission 'should not embark on a detailed consideration of the substantive case.'[6]

[23] Unitywater submits that Mr McFarlane was dismissed for serious misconduct. Mr McFarlane submits that the behaviour engaged in by him was incorrectly characterised as serious misconduct and should not have resulted in termination of his employment.

[24] On the material before me, I am unable to make a final determination of the merits in this matter. Accordingly, this is a neutral consideration.

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

[25] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[7] considered this criterion and said 'cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.'[8]

[26] Unitywater submits that Mr McFarlane and his colleague were both dismissed as a result of their conduct on 12 October 2017, and as such there are no issues of unfairness as between Mr McFarlane and other persons in a similar position.

[27] There is no evidence before me as to the circumstances of Mr McFarlane's colleague, and accordingly I find this to be a neutral consideration.

[28] Having considered all of the matters to which my attention is directed by the Act, I am satisfied that there are exceptional circumstances as to warrant my granting an exception to the statutory time limit for the lodgement of this application.

[29] An order to that effect will issue with this decision.

M. Rodgers for Northern SEQ Distributor - Retailer Authority T/A Unitywater.

[1] [2011] FWAFB 975.

[3] (1998) 105 IR 1.

[4] [2014] FWCB 5779.

[5] Outline of submissions on behalf of the Respondent, at 29.

[6] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

[7] [2015] FWC 8885.

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