Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Brisbane Plumbing and Sewer Pty Ltd T/A Brisbane Plumbing and Sewer

Application to deal with contraventions involving dismissal - extension of time - representative error - extension of time granted.

[1] Mr Aidan Martin was employed by Brisbane Plumbing and Sewer Pty Ltd T/A Brisbane Plumbing and Sewer (Brisbane Plumbing) from 13 April 2017 until his employment was terminated on 31 July 2017. Mr Martin has made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed in contravention of the general protection provisions of the Act. Mr Martin claims he was dismissed for making a complaint or enquiry in relation to his employment, specifically, in relation to his remuneration.

[2] Mr Martin made his application on 28 August 2017.

[3] Section 366 of the Act states:

(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] For Mr Martin to have made his application within the statutory time limit of 21 days after the dismissal took effect, the application needed to have been filed by 21 August 2017. The application has been made seven days out of time.

[5] Mr Martin seeks an extension of time within which to make his application. Mr Martin's contention is that the application was filed outside of the statutory time limit due to representative error.

[6] Mr Martin is represented by a paid agent, Fair Work Claims. Affidavits of Mr Miles Heffernan, Mr James Joseph Bugeja [otherwise known as Mr James Darling] and Mr Jeremy Walton of Fair Work Claims were filed to explain the delay in the making of the application.

[7] Mr Heffernan is the sole director of Supportah Operations Pty Limited t/a Fair Work Claims. His affidavit attests that the first record of contact Fair Work Claims had with Mr Martin was 31 July 2017, the date of the dismissal, when Mr Martin filled out an online enquiry and was telephoned by Fair Work Claims.

[8] Evidence about the operations of the business and the usual procedures for conversion of clients was set out by Mr Heffernan. He stated that he and Mr Darling had sole responsibility for 'onboarding' new clients, and a relatively new recruit, Mr Walton was still in training.

[9] During the period where Fair Work Claims was signing Mr Martin up to become a client, Mr Heffernan informed Mr Martin, "..it takes around two weeks for the Fair Work Commission to process a general protections dismissal claim and for there to be an employer response."

[10] Mr Martin's payment to Fair Work Claims to become a paid client was made on 14 August 2017. Mr Heffernan's evidence was that Fair Work Claims does not proceed in filing an application for clients until such time as the client makes a payment to the organisation.

[11] Mr Heffernan stated that he consulted his General Practitioner on 2 August 2017 in regards to a tumour in his mouth, and then saw a specialist surgeon on 14 August 2017. He believed he was attending for a consultation but instead immediate surgery was recommended and occurred that day. He was advised not to return to week for one week. Mr Heffernan returned to work in a substantive capacity on 22 August 2017.

[12] When Mr Heffernan returned to the office on 22 August 2017 he read the end-of-day information prepared by Mr Darling for each of the days he had been away, but he did not read the one dated 14 August 2017.

[13] Mr Martin sent an email on 28 August 2017 including his termination letter and pay slips. Mr Heffernan stated that this was the trigger to file the application on the same date, seven days out of time. Mr Heffernan stated 'but for our error, [Mr Martin's] matter would have been filed on time.'

[14] Mr Darling stated in his affidavit, 'As Practice Manager I am responsible for new clients, payments, scheduling and ensuring that matters are filed on time in their relevant jurisdictions.'

[15] On 14 August 2017, Mr Darling invoiced Ms Desley Martin, Mr Martin's grandmother, and annexed a copy of the invoice. He stated that he sent his end-of-day 'day pack' or handover to Mr Heffernan and Mr Walton, but this email was not viewed or actioned as both of the recipients were suffering from medical conditions. Mr Darling was too ill to attend for work from 15 August 2017. He was examined by a Neurosurgeon on 17 August 2017 and informed that he should have surgery. The medical advice was that if left untreated, the condition would have a severe impact on his life and be debilitating.

[16] Mr Darling had surgery on 25 August 2017. Mr Darling said that because his leave was unplanned, Mr Walton could not be comprehensively trained as to the correct procedure in this area (i.e. reconciliation of invoices). Mr Darling also stated that he was 'struggling with [his] well-being' and was 'not in the usual mindset to prepare a handover', concluding that had he not taken the leave, the application would have been filed within time.

[17] Mr Walton stated in his affidavit that when he commenced employment with Fair Work Claims in May 2017, his role involved taking inbound calls and assessing the merit of cases. He later began working in other areas of the business, such as scheduling.

[18] His evidence is that after Mr Darling took leave from 15 August 2017, his own role changed to incorporate some of Mr Darling's duties, including the conversion of paying clients and invoicing. He did not receive training in conversion until Mr Heffernan returned from his medical leave.

[19] Mr Walton also provided evidence that he was diagnosed with a medical condition and was taking medication to assist with the treatment process of the condition, together with resultant stress and anxiety of the condition. He attested to experiencing difficulties with concentration at work because of the medication, with his employer making relevant accommodations of the medical condition.

[20] Fair Work Claims, as representative for Mr Martin, advanced the reason for the delay as being attributable solely to exceptional circumstances in the form of illnesses befalling some of its critical staff around the time that the application was due to be lodged. Three affidavits from the affected staff were provided ahead of the submissions, the evidence from which is set out above.

[21] Mr Heffernan submitted that Mr Martin was sent the company's 'New Client Materials' package on 2 August 2017 which included a costs agreement, to which Mr Martin agreed on 7 August 2017. On 9 August 2017, Fair Work Claims contacted Mr Martin to obtain details from him in order to construct an invoice to send to him. Mr Martin's grandmother was added as a contact on 14 August 2017, as she had been liaising with the Fair Work Claims office regarding the payment of their costs.

[22] It was conceded by Mr Heffernan that although Mr Martin had two files open with Fair Work Claims, only the General Protections application in the Fair Work Commission needed to be lodged urgently. The other claim regarding an alleged underpayment may be made within six years, that being the statute of limitations for the making of civil claims.

[23] It was submitted that Mr Martin gave instructions to the firm to represent him on 7 August 2017. The payment to Fair Work Claims was made on 14 August 2017. However, the file did not become a 'project' - whereupon it would immediately be assigned to a lawyer or consultant - because the payment was made by bank transfer, and the bank account remained unchecked until 24 August 2017 when Mr Heffernan returned and reviewed the bank account.

[24] Fair Work Claims submitted that had Mr Darling, Mr Walton, or Mr Heffernan simply taken a day off or gone home sick, those events in themselves would have been unexceptional. However, the exceptional circumstances that befell their office are summarised as follows:

1. Mr Darling required 12 weeks' sick leave to have spinal surgery and post-surgery rehabilitation, and was only able to provide one week's notice of the leave;

2. The diagnosis requiring Mr Darling to have spinal surgery had an impact on his mental health, which was the main reason that he left work on 14 August 2017 under advice from his doctor;

3. Mr Darling completed a 'day pack' on 14 August 2017 which included reference to Mr Martin's case - noting that he had been invoiced and requested that Mr Heffernan reconcile the invoice with the bank account. Unaware that Mr Heffernan was absent, this went unread by Mr Heffernan and the task was not completed;

4. Mr Heffernan also was required to undergo surgery suddenly, after receiving a medical examination about a tumour on his tongue and being advised to have it removed. Mr Heffernan was recovering from the surgery immediately following the surgery and appeared in the Commission on 18 August 2017, albeit not yet fully recovered. Mr Heffernan did not return to the office until 22 August 2017.

5. Mr Walton was also in ill health with a medical condition, but attended work at the office during the period of time from 14 August 2017, realising that both Mr Heffernan and Mr Darling were absent from the office and his presence would be crucial. However, with Mr Heffernan away, Mr Walton was not trained in all of Mr Darling's duties that he was to take on. Mr Walton's pain relief medication was submitted to have had some impact on his general functioning and performance.

[25] Fair Work Claims, on behalf of Mr Martin, submitted that the confluence of these events amounted to exceptional circumstances satisfying the test in Baker v The Queen.[1]

[26] It was submitted for Mr Martin that his actions in following up with Fair Work Claims on 28 August 2017 caused the application to be lodged that evening, and but for that proactive step it may have yet been a few more days before Mr Heffernan would have had the capacity and opportunity to look at the file.

[27] Fair Work Claims submitted that four checks and balances failed as a result of the combination of the exceptional circumstances cited above. These included the failure to check the bank account in the absence of Mr Heffernan, resulting in Mr Martin's file remaining inactive; the absence of a handover between Mr Darling and Mr Heffernan, because Mr Darling assumed Mr Heffernan would be at work on 15 August 2017, resulting in the invoice not being reconciled; the inability to contact Mr Darling while he was on leave; and the reduced capacity to adequately train Mr Walton due to the unexpected nature of both Mr Darling and Mr Heffernan's absences.

[28] It was submitted for Mr Martin that the failure of these checks and balances, resulting in the funds being received by Fair Work Claims but his file not being converted to a project, would have a significant impact on Mr Martin were the extension of time not granted.

[29] It was submitted that Mr Martin gave instructions on 7 and 14 August 2017, and had relied on his representative to ensure his application would be filed on time. Further, Mr Martin's enquiry on 28 August 2017 was the 'key trigger' causing the application to be filed. Mr Martin had taken 'all steps' reasonably required in order for his application to have been filed on time through his representative. As such, it was submitted that he as an individual was not at fault, and the error was caused purely by the exceptional circumstances affecting his representative.

[30] In considering the remaining criteria under s.366(2) of the Act, it was submitted that the length of the delay, being one week, would cause minimal prejudice to Brisbane Plumbing. It was also submitted that although Mr Martin was aware of the effective date of dismissal, that should not weigh against him as he had taken steps to progress his application. In respect of whether there would be fairness between Mr Martin and other persons in a similar position, it was submitted that any person who has engaged representatives ought be able to rely on those representatives, and that fairness would be maintained if the extension were granted, because Mr Martin would be denied an opportunity to challenge his dismissal in the Federal Circuit Court.

[31] The merits of the application were not exhaustively set out by Fair Work Claims in its submission, citing Kybelos v Champion Socks Pty Ltd[2] that the Commission 'should not embark on a detailed consideration of the substantive case'. It was submitted that there is an undisputed issue relating to the alleged underpayment of Mr Martin as a mature-aged apprentice, and that Mr Martin had approached his employer in relation to the alleged underpayment on or around 13 July 2017. It was submitted there existed a 'nexus' to the exercise of his workplace right, in making complaints or enquiries in relation to his employment, and his subsequent dismissal.

[32] Mr Heffernan concluded the submission by restating that the period from 14 August 2017 was an exceptionally difficult - indeed, the most difficult - period at Fair Work Claims since the genesis of the business, and the oversight in Mr Martin's case was an anomaly caused by the particular and sudden circumstances resulting in the two experienced case managers being absent from the business. In anticipation that the respondent may call on the Commission to raise a Jones v Dunkel[3] inference relevant as to why Mr Martin did not give evidence, it was submitted that the representative accepted full responsibility for the error and that is why no evidence was required from Mr Martin. Finally, it was submitted that these exceptional circumstances and the representative error should not preclude Mr Martin his opportunity to have his matter heard in the Federal Circuit Court.

[33] Brisbane Plumbing is represented by Employsure, Workplace Relations Specialists.

[34] Brisbane Plumbing disputed that exceptional circumstances existed, and submitted that despite the illnesses impacting on all the Fair Work Claims employees involved in client management at Fair Work Claims, a representative, Ms Roseanna Huskie, was nevertheless able to lodge the application.

[35] To rebut Mr Martin's reliance on representative error as a basis for the granting of an extension of time, Brisbane Plumbing noted a Full Bench decision, Laetisha Diotti v Lenswood Cold Stores Co-op Society,[4] where it was held, in the context of an unfair dismissal claim, that representative error does not provide an inviolable reason for granting an extension of time due to exceptional circumstances.

[36] Brisbane Plumbing also quoted a passage from Nulty v Blue Star Group Pty Ltd[5] setting out that mere ignorance of the timeframe is not sufficient to warrant an extension of time, however that particular argument was not advanced by Mr Martin.

[37] It was asserted further that no reasonable explanation for the delay which could justify the exercise of discretion in his favour can be provided by Mr Martin.

[38] It was conceded by Brisbane Plumbing that there is an 'element' of representative error in this matter, however it submitted that this was only one of a number of factors to be considered in the exercise of the discretion to grant an extension of time, and in this case, the delay was 'fundamentally caused by a complete lack of action on the part of the Applicant to follow up and properly instruct his representative'.

[39] Brisbane Plumbing argued that there was no evidence before the Commission indicating that Mr Martin was lacking capacity to progress his application in the 21 days following his dismissal, and none that he actively sought to enquire about the progress of his application and instruct Fair Work Claims. It was submitted by Brisbane Plumbing that this lack of action places some amount of responsibility on Mr Martin himself.

[40] Brisbane Plumbing also asserted that Mr Martin did not issue instructions to Fair Work Claims until 14 August 2017, and that this was indicative of his failure to ensure his application would be lodged on time, despite there being no evidence of a lack of opportunity or capacity to do so.

[41] The merits of the substantive application were briefly addressed by Brisbane Plumbing, submitting that the merits do not favour Mr Martin, or in the alternative, are a neutral factor. This position was argued on the basis that the adverse action experienced by Mr Martin was not because of his exercise of a workplace right, as argued by Mr Martin, but solely because of his poor performance during his probationary period.

[42] Brisbane Plumbing further submitted that an extension being granted to Mr Martin would advantage him in comparison to other persons in a similar position, because the reasons provided by him were not outside the ordinary course and would not constitute exceptional circumstances.

[43] If an extension were to be granted, Brisbane Plumbing submitted that this would also cause prejudice to the employer. Brisbane Plumbing is a small business with limited financial resources and no human resources department. The employer has incurred costs associated with defending the application and should the extension be granted, will have to expend more financial resources to further defend the matter.

[44] Brisbane Plumbing submitted that no demonstrable exceptional circumstances leading to the delay were advanced by Mr Martin. Also lacking, it submitted, were 'rational' or 'convincing reasons for the delay', and that the sole argument of representative error was unsupported by reasons amounting to exceptional circumstances. For all of the above reasons, and because of the prejudice it may suffer if the application were to proceed, Brisbane Plumbing submitted that the extension should not be granted.

[45] In response to the submissions advanced on behalf of Mr Martin, Brisbane Plumbing submitted that even if representative error is found, it still does not explain the whole of the delay before the application was lodged (28 days after the effective date of dismissal, and seven days later than the statutory deadline).

[46] It was submitted that consideration should be given to the test in Clark v Ringwood Private Hospital,[6] and the following extract (as paraphrased in Davidson v Aboriginal & Islander Child Care Agency[7]) was included in the submissions:

'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.'

[47] However, the remainder of that paragraph provides context for the types of situations contemplated by the Commission:

'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.'

[48] Brisbane Plumbing posited that the delay in payment between 7 August 2017, when Mr Martin agreed to the costs agreement with Fair Work Claims, and 14 August 2017, when payment was made, was a contributing factor to the application being lodged out of time. The gap between 2 and 7 August was also noted, being the period of time between Mr Martin receiving the materials from Fair Work Claims and his returning of the signed costs agreement to his representatives, and it was submitted that Mr Martin is required to explain this delay.

[49] Further, it was submitted that 'there is no reasonable explanation as to why the Applicant stood idle from 14 August to 28 August 2017' and that the evidence from Messrs Heffernan, Darling and Walton does not put forth any reasons Mr Martin had for not following up on the application. In the absence of any sworn evidence from Mr Martin, and in light of the statement by his representative that he will not be called as a witness, Brisbane Plumbing submitted that the Commission should draw a Jones v Dunkel inference, i.e. that 'untendered evidence would not have helped the party who failed to tender it'. Brisbane Plumbing argued that if Mr Martin were totally blameless, evidence should be expected to be adduced from him to demonstrate this contention.

[50] Brisbane Plumbing cited Todd Perry v Rio Tinto Shipping Pty Ltd[8] at [30] which states, 'a person relying upon representative error must also show that the person was blameless and did not by act or omission cause or contribute to the error'. It was submitted that a credible reason for the total period of the delay was not demonstrated by Mr Martin, and that the email sent by Mr Martin on 28 August 2017 does not actually indicate that he was making an enquiry about his application. In addition, the email sent by him appears to provide late instructions regarding the inclusion of his termination letter in his application.

[51] It was concluded by Brisbane Plumbing that Mr Martin was in some part responsible for the delay, and not 'totally blameless' as alleged by his representatives. Further, the absence of evidence from Mr Martin does not support the granting of an extension. It was submitted that the circumstances described in Fair Work Claims' submissions 'are not out of the ordinary course, unusual, special or uncommon' and contended that the extension should not be granted.

[52] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd[9] where the Full Bench said:

'[10] It is convenient to deal first with the meaning of the expression "exceptional circumstances" in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression "exceptional circumstances" in s.394(3) and held:

"[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.'

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression "exceptional circumstances" was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

"23. I am of opinion that the expression 'exceptional circumstances' requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:

'Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.'

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:

'We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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' in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services."

[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.' [Endnotes not reproduced]

[53] For exceptional circumstances to arise as contemplated by s.366 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[54] The onus of establishing exceptional circumstances is on Mr Martin who needs to provide a credible reason for the whole of the period that the application was delayed.[10]

[55] This point was emphasised by the Full Bench in the decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[11] which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

'[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

'[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. ...'

[30] This extract must be read in its entirety. The decision goes on to state:

'[12] ... The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.'

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.'

Subsection 366(2)(a) - The reason for the delay

[56] It has been demonstrated that from the date of his dismissal on 31 July 2017, Mr Martin took steps to engage Fair Work Claims as his representative. He completed an online inquiry on 31 July 2017, and participated in a telephone call on the same day.

[57] On 2 August 2017, Fair Work Claims sent to Mr Martin a 'New Client's Materials' package. On 7 August 2017 he signed the costs agreement.

[58] I accept on the evidence before the Commission, noting that it was not direct evidence of Mr Martin, he did not have the means to pay the invoice of $1,005.60. While it was alluded to that Mr Martin would not have been required to have paid the full amount of $1,005.60, and could have paid an amount of a $400 deduction to that amount on account of only immediately pressing one of his actions against Brisbane Plumbing, it is not surprising that Mr Martin did not have the funds to pay to Fair Work Claims.

[59] Mr Martin had just been dismissed, and if it is correct that he was paid a first year apprentice weekly wage of $400 per week, it is not surprising that he called upon a family member to assist him with the funding of his litigation.

[60] Mr Martin's grandmother made the payment on 14 August 2017, that being 14 days after the date of the dismissal, and well within the 21 day time limit. It is reasonable to conclude, and I do conclude that Mr Martin had an expectation that his paid agent would file the application within the remaining time limit available, which was not a small amount of time. Mr Martin did not wait until the last day of the 21 day time limit to have payment made on his behalf.

[61] Due to a very unfortunate series of events involving two staff from Fair Work Claims becoming quite ill at the same time and not returning to the office from 15 August 2017 until some time later, the file did not 'convert' within the firm. Mr Walton was not experienced enough to understand the file had not converted for it to move to the next stage and to be attended to by practitioners within the business.

[62] Mr Heffernan returned to the business on 22 August 2017, however in the absence of Mr Darling, I accept that he did not realise that Mr Martin's case needed to be 'actioned'. Relevant to Mr Heffernan's appearance in the Commission on 18 August 2017, Mr Heffernan appeared with leave in a matter before me. He was not expected to appear, and he had hoped to assist his colleague, Mr George Calderon in Mr Calderon's first arbitration before the Commission. I note that Mr Heffernan ultimately did most of the advocacy in that matter due to the complexity of it, and at times was demonstrably very unwell due to having had surgery only days before.

[63] I do not consider it was necessary for Mr Martin to have made a phone call to Fair Work Claims on or before 21 August 2017 to ensure his application had been made in time. He had given instructions for his application to be filed on 7 August 2017, and payment was made on his behalf on 14 August 2017. On the advice given to him on first making inquiries with Fair Work Claims that it typically might take two weeks from filing an application to learning of an employer's response, it is not unreasonable for Mr Martin to have been awaiting communication from his representative until around 28 August 2017.

[64] I do not accept on the evidence before the Commission that Mr Martin's emails to Fair Work Claims constitute an inquiry as to his application. They are simply emails sent from his phone to Fair Work Claims attaching his termination letter and pay slip.

[65] Whether Mr Martin was prompted in any way to send to Fair Work Claims the termination letter and pay slip, or whether he did it of his own initiative, the fact remains that the application was lodged on 28 August 2017, the same day the emails were sent by Mr Martin to his representative.

[66] I do not think it is suitable to draw a Jones v Dunkel adverse inference against Mr Martin for not giving evidence in relation to whether the Commission should grant an extension of time. Having determined that Mr Martin had a reasonable expectation he could expect to hear back from his representative approximately two weeks following the application being made on or around 14 August 2017, it is therefore not unreasonable Mr Martin took no action between the period 14 August and 27 August 2017. He had left the application in the hands of his representative, and on the advice of Mr Heffernan, a response from the employer would be unlikely within the two week period from lodging the application.

[67] If there had been no further inquiry by Mr Martin beyond the expected 'two weeks' as indicated by Mr Heffernan, it would be open to the Commission to be critical of Mr Martin's failure to make any inquiries beyond this time.

[68] I have had regard to the whole period between the date of the dismissal and the date the application was filed, and to Mr Martin's conduct during this period. I am satisfied that the delay in bringing the application was solely attributable to the unexpected absences of Mr Heffernan and Mr Darling during the final week of the 21 day period, and from the time when Mr Martin had entrusted Fair Work Claims to lodge his application on time. The delay was due to representative error and for the reasons above I consider Mr Martin to be blameless for the delay.

[69] This is a factor that weighs in favour of granting an extension.

Subsection 366(2)(b) - Any action taken by the person to dispute the dismissal

[70] Brisbane Plumbing acknowledged that Mr Martin disputed the dismissal on the day of the dismissal. As set out above, Mr Martin took steps to engage Fair Work Claims in respect of both of his termination and his alleged underpayment claim from 31 July 2017. This is considered to be action taken to dispute the dismissal.

[71] This is a factor that weighs in favour of granting an extension.

Subsection 366(2)(c) - Prejudice to the employer (including prejudice caused by the delay)

[72] The delay of one week will not cause any prejudice to the employer other than its costs, if any, relating to its objection to the extension of time application.

[73] Brisbane Plumbing has not demonstrated that any other prejudice will be suffered by it as a result of the application being filed late that would not have occurred had the application been filed on time.

[74] This is a neutral consideration.

Subsection 366(2)(d) - The merits of the application

[75] In the matter of Kornicki v Telstra-Network Technology Group[12] 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:[13]

'If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.'

[76] After considering the material filed by the parties in relation to the substantive application, it is clear that there are some factual disputes between the parties and it is not apparent that the application is without merit or that merit is anything other than a neutral consideration.

Subsection 366(2)(e) - Fairness as between the person and other persons in a like position

[77] It is well established that representative error will typically weigh in favour of a finding of exceptional circumstances where an applicant is blameless in the delay, has not contributed to such error and has given clear instructions to their representative to lodge an application.[14] In such cases no issue will arise with respect to fairness as between an applicant and other persons who have made applications outside of the required time in a like position.

[78] In my view, the facts in this case are consistent with other cases where an extension of time has been granted on the basis of representative error.

[79] I have considered each of the criteria set out in s.366(2) of the Act. I am satisfied that there are exceptional circumstances based on representative error for me to exercise my discretion to extend time.

[80] I exercise my discretion to extend the time for Mr Martin to lodge his application to 28 August 2017.

[81] The file will be referred to the General Protections Team to be scheduled for conciliation.

[1] (2004) CLR 513.

[4] [2016] FWCFB 349.

[5] [2011] FWAFB 975.

[6] (1997) 74 IR 413.

[7] (1998) 105 IR 1.

[8] [2016] FWCFB 6963.

[9] [2011] FWAFB 975.

[10] See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403.

[11] [2016] FWCFB 349.

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

[14] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony's Plumbing Service (2011) 202 IR 59 at [35].

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