Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Gary Hooper Family Trust T/A Barron River Towing

Application to deal with contraventions involving dismissal - Whether further period to make application should be granted - Representative error - Appropriateness of processes of representative for dealing with applications - Whether applicant blameless - Further period granted.

[1] This Decision concerns an application by Mr Chris Lawless under s. 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a General protections dispute in relation to his dismissal by Gary Hooper Family Trust T/A Barron River Towing (Barron River Towing). Mr Lawless states in his Form F8 General protections application that he was dismissed on 23 January 2018. The application was made on 21 February 2018.

[2] By virtue of s. 366(1) of the Act an application under s. 365 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 366(2). The application was made eight days outside the time required in s. 366(1) of the Act. It is therefore necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made.

[3] Barron River Towing did not consent to participate in a conciliation prior to the determination of whether Mr Lawless should be granted a further period. Directions were issued requiring Mr Lawless to file a statement setting out the basis for the submission that there were exceptional circumstances justifying the grant of a further period in which to make his General protections application, by 4.00pm on Tuesday 20 March 2018. Barron River Towing was directed to file and serve any material in relation to the matter by 4.00pm on Tuesday 27 March 2018.

[4] Mr Lawless' material was not filed as required by the Directions and following correspondence from my associate on Thursday 22 March 2018, Mr Lawless' representative Unfair Dismissals Direct requested and was granted an extension of time, to 4.00 pm Friday 23 March 2018. Barron River Towing was afforded an extension until midday on Tuesday 3 April 2018. Mr Lawless' representative filed material in accordance with the amended Directions. Barron River Towing did not file any material prior to the hearing, or respond to correspondence as to its intention to file any material.

[5] The matter was listed for Objections Conference/Hearing on Wednesday 4 April 2018. Permission to be represented in relation to the extension of time application was sought by Mr Lawless and pursuant to s. 596 of the Act, I granted permission on the basis that no issues of fairness arose; and it enabled the matter to be dealt with more efficiently, given that Mr Lawless is relying in representative error as the basis for asserting that there are exceptional circumstances justifying an extension of time in which to make his application. Mr Lawless was represented at the hearing by Mr Tim Rizzuto, Industrial Relations Specialist of Unfair Dismissals Direct. Mr Garry Hooper, Director appeared for Barron River Towing.

[6] Mr Lewis Smith, Industrial Relations Specialist of Unfair Dismissals Direct and Mr John Bingham, Director of Unfair Dismissals Direct gave evidence as to why Mr Lawless should be granted a further period in which to make the application. Witness statements setting out the evidence of Mr Lawless, Mr Lewis and Mr Bingham were tendered and Barron River Towing was given an opportunity to cross examine both witnesses.[1]

[7] At the conclusion of the hearing of 4 April 2018 I indicated that I was not satisfied as to the date on which Mr Lawless gave an instruction to his representative to file his application. Mr Lawless was given an opportunity to provide further evidence in relation to this matter. Barron River Towing subsequently sought to be represented by the Motor Trades Association of Queensland (MTAQ), and requested to be heard in relation to the further evidence. A further Objections Conference/ Hearing was then listed for 16 April 2018, where Mr Lawless was represented by Mr Rizzuto and Mr Paul Murray of the MTAQ appeared for Barron River Towing.

[8] At the hearing on 4 April 2018, Mr Lawless gave evidence that he became aware of his termination on 23 January 2018 and contacted Unfair Dismissals Direct by telephone on that date. Mr Lawless made further contact with Unfair Dismissals Direct on 25 January 2018 to provide his email address, and again on the morning of 29 January 2018, to correct the email address he had previously provided and to follow up his earlier contact. Mr Smith of Unfair Dismissals Direct sent an email to Mr Lawless at 10.46 am on 29 January 2018, requesting further information necessary for the lodgement of his application. The email was annexed to Mr Smith's Statement, and is in the following terms:

Thank you for your enquiry to Unfair Dismissals Direct. I apologise for not calling back sooner, thank you for contacting our offices to provide the correct email address!

To allow us to complete our assessment of your case to see what action can potentially be taken against your former employer, please provide the following by return email, to the extent available:

1. A copy of your termination letter and any Employment Separation Certificate (if available);

2. Details of any complaints you have made in relation to your employment;

3. Details of any leave you have recently taken, including medical certificates;

5. A detailed timeline of the events leading up to your dismissal; and

6. Any additional information you feel is relevant to your claim.

There is no need for the assessment to be delayed simply because you do not have some of the documents in your possession. Strict time limits apply to employment claims. It is not uncommon for employers to refuse to provide an Employment Separation Certificate at first instance, for example. Please provide as much of the above that you have available. If we require anything further in order to complete our assessment of your case, we will let you know in due course."

[9] Mr Lawless provided the requested documentation that he had available to him shortly after receiving the email from Mr Smith on 29 January 2018. Mr Lawless states that he contacted Unfair Dismissals Direct by telephone after he had provided the documents, and left a message for Mr Smith that he wanted to speak to someone before proceeding. Mr Lawless also contacted Unfair Dismissals Direct again on 30 January and 31 January 2018 regarding the "progress of his case."

[10] Mr Lewis said he sent an email to Mr Lawless on 31 January 2018 attaching the Terms of Engagement that Mr Lawless was to sign and return. The email states as follows;

Thank you for providing Unfair Dismissals Direct with information concerning the termination of your employment. We have undertaken a detailed consideration of the same and are pleased to advise that Unfair Dismissals Direct is able to represent you as your paid agent in an application pursuant to the Fair Work Act 2009 (Cth.). This offer is conditional upon you returning a signed copy of our terms of engagement on or before the day and time specified in our terms of engagement, and in the manner specified therein.

We attach our terms of engagement for your perusal. You should read the document carefully and, once you understand the contents and wish to proceed with us on that basis, please return a signed copy of all pages to us.

Once received we expect your matter will be allocated to Lewis Smith, Industrial Relations Specialist, who will prepare your claim, and your former employer will be notified accordingly.

[11] Mr Lawless signed and returned the terms of engagement on 4 February 2018 by email. Mr Smith said he then sent a draft copy of the F8A application to Mr Bingham for his review on 9 February 2018, and that Mr Bingham was to lodge the application in the Commission. Mr Bingham said that he did not open the email from Mr Smith containing the draft application until 20 February 2018, and subsequently reviewed and filed the application.

[12] At the hearing, I asked Mr Lawless whether he was sent a draft copy of the F8A application by his representative when he had signed the terms of engagement. Mr Lawless said that he had seen the application when he signed the terms of engagement, and in response to a further question from me regarding when he gave the instruction for the application to be filed, Mr Lawless said "I don't really have the dates in front of me."[2] I also asked Mr Rizzuto about when a draft or a copy of the application was provided to Mr Lawless and had the following exchange with Mr Rizzuto:

"THE DEPUTY PRESIDENT: Yes, so the terms of engagement was signed on 4 February and returned, and on 9 February a draft copy of the application was sent by Mr Bingham for his approval and filing, and the email says: "This should be slightly better, but I'm more than happy to amend" - and then nothing happens till 20 February. What I'd like to know is was there a final version of the application shown to the applicant in that period?

MR RIZZUTO: Thank you, Deputy President. I might be able to shed some light on this. So the form F8 that Mr Smith sent to Mr Bingham on the 9th, that was a draft. It was meant to be a final draft, but not complete, so he sent it to Mr Bingham for review. So it wouldn't have been shown to the applicant before that stage as it wasn't final in that form. And now when Mr Bingham, as he wrote in his statement, opens it three weeks later, he realised what had happened; he made the necessary amendments for it to be a final draft, and submitted and filed the application as soon as possible."[3]

[13] In response to questions about when Mr Lawless gave an instruction to file the application, Mr Rizzuto said:

"MR RIZZUTO: You'll note that we only annexed the final page of the terms and conditions. An element of the terms and conditions is of course stating that Unfair Dismissals Direct will draft and file the application, so he gave the instruction when he returned the signed terms and conditions.

THE DEPUTY PRESIDENT: Well, I want to know what the full terms and conditions were then, Mr Rizzuto, because I can see nowhere between 9 February and 20 February when anything happened, and if the applicant knew on the first day that he consulted your firm that he only had 21 days then why didn't he follow the matter up between the 9th and the 20th when he hadn't been given an application to say this is what we're going to file?

MR RIZZUTO: That was not our regular procedure at the time to show the applicant, indeed our client, the application prior to filing, so it wouldn't have been normal process for him to have been given a copy in any event.

THE DEPUTY PRESIDENT: Well, I want some more information about when he gave the instruction and how to file this application, because I'm missing that part of the equation."[4]

[14] An extract of the terms of engagement was annexed to Mr Lewis' statement comprising the final page of the document, demonstrating that Mr Lawless signed the terms on 4 February 2018. In response to a question as to Mr Lawless' actions between 4 February 2018 when the instruction was given to file the application, and 20 February 2018 when the application was filed in the Commission, Mr Rizzuto said that Mr Lawless had no reason to believe that it had not been filed as Unfair Dismissals Direct had undertaken to prepare and file the application, and Mr Lawless had not been advised of anything to the contrary.

[15] At the conclusion of the hearing, I directed Mr Lawless' representative to file a further statement by close of business on Thursday 5 April 2018 that evidenced when Mr Lawless gave an instruction for the application to be filed. I also made it clear that if it was asserted that the signing of the terms of engagement included or constituted an instruction to file the application, evidence of the contents of the terms of engagement in respect of this issue would be required.

[16] A supplementary witness statement of Mr Smith was filed on Friday 6 April 2018, with a complete albeit redacted copy of Mr Lawless' signed terms of engagement. Barron River Towing requested to be heard in relation to this evidence and a further hearing was listed on 16 April 2018.

[17] At that hearing, Mr Smith explained the process he undertakes when accepting a new client. Mr Smith said that he took instructions from Mr Lawless during an initial phone call and then "would have" sent Mr Lawless a conditional offer of engagement, or a conditional quote after taking instructions. Mr Smith also said that Mr Lawless told him he wanted to proceed and that terms of engagement were sent, which contained the instruction to file the application when signed and returned.

[18] Mr Lawless relies on the terms of engagement and the wording contained under the heading "Scope of Work" that states that work undertaken by Unfair Dismissals Direct includes taking instructions from the client, corresponding with the client from time to time, reviewing supplied documents, preparing and filing an FWC application, considering and implementing a strategy for the prosecution of the FWC application and providing representation before the Commission at a conference before the Commission.

[19] The terms of engagement tendered by Mr Lewis also contain a term that states;

"You may indicate your acceptance of the terms and conditions contained in this document, and instruct us to proceed with your claim, by returning a signed copy of all pages of this document."

[20] Mr Rizzuto said that essentially the receipt of the signed terms of engagement constituted an instruction from Mr Lawless to file the application on 4 February 2018. In response to a question from me regarding whether Mr Lawless made any contact with Unfair Dismissals Direct after 4 February 2018, Mr Lewis said Mr Lawless may have contacted him by phone or email but was unsure.

[21] Mr Murray submits that there is no evidence that a clear instruction was given by Mr Lawless to file the application, and asserts there is a difference between receiving a clear and unequivocal instruction and a reference to the filing of an application contained under the scope of works of the terms of engagement.

[22] Mr Rizzuto said in closing, that Mr Lawless had given a clear and unambiguous instruction and had no reason to believe the application had not been filed, and that up until that time Mr Lawless had been in regular contact and bears no fault for the delay in filing.

CONSIDERATION OF WHETHER A FURTHER PERIOD SHOULD BE GRANTED

The approach to deciding whether a further period should be granted

[23] As previously noted, s. 366(1) of the Act requires that a general protections application under s. 365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 366(2) of the Act.

[24] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a General protections application to be made as follows:

"(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 similar position."

[25] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant seeking the grant of a further period in which to make an application.[5] A decision as to whether a further period to make an application should be granted, involves the exercise of discretion.[6] The approach to deciding whether there are "exceptional circumstances" in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

• out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or

• involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional.[7]

[26] It is also not correct to construe exceptional circumstances as being only an unexpected occurrence, although frequently it will be.[8] Further, it is also necessary to consider all relevant circumstances even where some or all are not exceptional in order to determine whether in combination, the circumstances may be regarded as exceptional.

[27] In considering an application for an extension of time I must be satisfied that there are "exceptional circumstances" taking into account each if the matters in s.366(2) of the Act. I will consider each of those matters in turn.

[28] The reason for delay advanced on behalf of Mr Lawless is representative error. Generally parties who place matters in the hands of a representative such as a lawyer, paid agent or union, and take all reasonable steps to ensure that instructions are provided that are sufficient to enable steps to be undertaken as required by the Act, have a legitimate expectation that their instructions will be carried out, and a failure on the part of such a representative to do so is an exceptional circumstance in the sense that it is unexpected.

[29] In Robinson v Interstate Transport Pty Ltd, [9] a Full Bench of the Commission held that depending on the particular circumstances of a case, representative error may constitute exceptional circumstances and be a sufficient reason to extend time. In that case the Full Bench held that the conduct of the Applicant is a central consideration to deciding whether representative error provides an acceptable explanation for delay. In particular the Full Bench distinguished the case of an applicant who leaves the matter in the hands of a representative and takes no steps to inquire as to the status of their claim, from one where an applicant gives clear instructions to the representative to lodge a claim and the representative fails to carry out those instructions, through no fault of the applicant. In the latter case an applicant is blameless and it is more likely that representative error will be given significant weight in consideration of whether there are exceptional circumstances justifying a further period to make an application.[10] Representative error can include inactivity or carelessness of an applicant's representative.[11] It is also apparent from the case law concerning representative error as an explanation for delay that it is necessary to balance the nature of the error and to consider the contribution that the applicant's conduct made to the error or the delay.

[30] In the present case, I accept that there was a representative error on the part of Mr Lawless' legal representatives Mr Smith and Mr Bingham, with respect to Mr Bingham not opening the email containing the draft application from Mr Smith until 20 February 2018. Further, it is apparent that there was inactivity on the part of Mr Smith and Mr Bingham in the time between Mr Smith sending the draft application to Mr Bingham for his review and for lodgement on 9 February 2018, and when Mr Bingham opened the email from Mr Smith on 20 February 2018.

[31] The evidence of both Mr Bingham and Mr Smith is that the usual procedure of Unfair Dismissals Direct is that all applications are sent to Mr Bingham, who is ultimately responsible for reviewing and filing them. The fact that Mr Bingham did not open the email containing the application for some 11 days when he bore the responsibility of filing the application involves carelessness and inactivity on his part. Mr Smith was also careless and inactive by virtue of having sent the draft application to Mr Bingham without making any attempt during the 11 days prior to it being filed, to confirm that either the draft needed any amendments, or had been lodged with the Commission.

[32] The initial statements of Mr Bingham and Mr Smith in relation to the error and inactivity are essentially concerned with taking the blame for the late lodgement of the application and did not address the action that Mr Lawless took to provide a clear and unequivocal instruction to file the application. Mr Lawless' evidence on this point is also somewhat vague. Mr Lawless suggested at the hearing that he had been sent a copy of his application at the time he was sent the terms of engagement. However there is no mention in the statements of either Mr Lawless or Mr Smith that this occurred, and the email containing the terms of engagement that was annexed to Mr Lawless' statement does not appear to contain any attachment of an application, or indeed any reference to a draft application.

[33] The oral evidence of Mr Smith was that Mr Lawless gave an instruction to file when he returned the signed terms of engagement on 4 February 2018, and that it was not the usual practice for Unfair Dismissals Direct at the time to provide a draft of an application for the client's review or approval. Mr Rizzuto also said at the hearing that the application Mr Smith sent to Mr Bingham on 9 February 2018 was intended to be a final draft but was incomplete, and was sent to Mr Bingham for review, and that it would not have been shown to Mr Lawless at the stage because it was not in its final form. This submission appears to be at odds with Mr Rizzuto's further assertion at the hearing that it was not their procedure to show the application to an Applicant prior to filing, and that this would not have been normal process for Mr Lawless to have been given a copy in any event.

[34] I have significant concerns about the manner in which Unfair Dismissals Direct conducts its operations. The terms of engagement simply state that Unfair Dismissals Direct is "able to represent" Mr Lawless in an application "pursuant to the Fair Work Act 2009", by undertaking activities including "preparing and filing" an application. The terms of engagement do not specify the type of application that is to be made or that it will be made. I am also of the view that the clause in the terms of engagement that states that by returning a signed copy of the terms of engagement "You may indicate your acceptance of the terms and conditions ... and instruct us to proceed with the claim," is not a sufficient basis for a clear instruction to be given to file an application.

[35] Of most concern is that Unfair Dismissals Direct does not appear to inform its clients as to what type of application is to be filed on their behalf or take any steps to confirm information set out in the application before it is filed.

[36] In the present case it is far from clear whether Mr Lawless was provided with a copy of the application before it was filed - either in draft or final form - or that the terms of the application were discussed with him, much less the nature of the application that was to be made on his behalf. Pleadings in an application can be a significant matter. They provide a basis upon which a respondent responds to the application. In my view the practice of a representative filing an application without it being reviewed by an applicant is undesirable. While this may sometimes be the result of tight deadlines, it is not an appropriate practice for a firm holding itself out as having expertise in dealing with dismissal claims, to adopt.

[37] I also note that the terms of engagement used by Unfair Dismissals Direct also refer only to an application to the Commission and advise that representation will be provided for a conference. It is not clear whether clients are informed that if their application is not resolved at conference stage, they have not engaged representation for a hearing. This is of particular concern with respect to a general protections application, where if there is no resolution at the conference stage, a further application is required to be made to the Court.

[38] While I have significant concerns about how Mr Lawless could be said to have provided a clear instruction to file an application with the Fair Work Commission in circumstances where he:

• was not informed about the type of application that is to be filed;

• did not review the application for factual accuracy before it is filed;

• does not appear to have been informed that if his matter was not resolved at conference he would be required to make a further application to the Court; and

• the Court application is not covered by the terms of engagement.

[39] Notwithstanding my concerns, these are matters that are attributable to the business model which appears to be utilised by Unfair Dismissals Direct and this should not be visited on Mr Lawless.

[40] There is evidence that Mr Lawless made regular contact with Unfair Dismissals Direct regarding his claim until 31 January 2018. Problematic as they are, Mr Lawless also promptly signed and returned the terms of engagement document. Given the terms of that document I accept that Mr Lawless would have reasonably believed that he had instructed Unfair Dismissals Direct to file an application with the Fair Work Commission disputing the terms of his employment. On the basis of the Business Model used by Unfair Dismissals Direct, at the point Mr Lawless signed and returned the terms of engagement, he had taken all necessary steps within the time required, to ensure that his application was filed with the Commission. But for the carelessness and inactivity of Mr Smith and Mr Bingham, the application could have been filed within the required time.

[41] I accept that Mr Lawless could have made contact with Unfair Dismissals Direct to ensure that his application had been filed or even to view what was going to be filed. However, it was not unreasonable that Mr Lawless did not take these steps in the circumstances that pertained in this case and it is not a sufficient basis upon which I could apportion blame to Mr Lawless such that it would outweigh the representative error made by Unfair Dismissals Direct.

[42] Applicants in unfair dismissal cases are very often not equipped to deal with legal matters and to understand what is required for the purposes of giving instructions to a representative. It is also not sufficient in a case where representative error is asserted as the reason for the delay in lodging an application, and said to be a significant consideration in establishing exceptional circumstances, that a representative simply issues a mea culpa. That is not sufficient to establish exceptional circumstances. What is also required is evidence to justify a finding that the applicant is blameless including evidence about steps an applicant who has been impacted by representative error took to prosecute his or her application and when those steps were taken.

[43] In the circumstances of this case, there was representative error and its effect was compounded by the manner in which Unfair Dismissals Direct processes applications. Any deficiency in that process should not be visited on Mr Lawless in circumstances where he did all he was asked to do by his representative and was entitled to believe that an application would be filed on his behalf. Accordingly this is a factor which supports the exercise of the discretion to extend the time for Mr Lawless to make his general protections application.

Any action taken by the person to dispute the dismissal

[44] I accept that Mr Lawless took prompt steps to seek advice and made regular contact with Unfair Dismissals Direct after first making contact on the day he became aware of his dismissal. I also note that Mr Lawless did not give any indication to Barron River Towing that he disputed his dismissal until his application was filed. I also consider this to be a neutral factor.

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

[45] Mr Lawless submits there is no prejudice to the Barron River Towing as a result of the application being filed seven days out of time. Barron River Towing provided no evidence of prejudice if an extension is granted other than the usual prejudice associated with being required to defend the application. This is a matter that weighs in support of the exercise of discretion to grant a further period to Mr Lawless.

[46] 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:

"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."[13]

[47] After considering the limited material filed by the parties it is clear that there are factual disputes between the parties - in particular about whether the Respondent was aware of particular medication that Mr Lawless was prescribed when he commenced employment as a Truck Driver. I am not satisfied that the application has no merit so that this factor weighs against the grant of a further period. Neither am I satisfied that there is such apparent merit that it should weigh in favour of an extension. Merit is a neutral factor in this case.

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

[48] In the particular circumstances of this case there are no other employees of Barron River Towing in the same position as the applicant. If fairness is considered in a General sense, it is well established that representative error has been accepted as weighing in favour of a finding of exceptional circumstances, but that this is only so where the applicant is blameless and has given clear instructions to file an application.

[49] In the circumstances of this case there are no other employees in the same position as Mr Lawless and this consideration weighs in favour of granting the further period. However this is a situation where I have found that representative error caused the delay, and it would not be unfair to grant Mr Lawless an extension of time when other applicants in cases before the Commission have been granted extensions for this reason.

[50] After considering all of the relevant factors and weighing them, I am satisfied that there are exceptional circumstances sufficient for me to exercise my discretion to grant a further period for Mr Lawless to make a general protections application. I extend the time for Mr Lawless' General protections application involving dismissal (C2018/897) to 21 February 2018. An Order to that effect will issue with this Decision. The matter will be referred for conciliation.

Mr T. Rizzuto of Unfair Dismissals Direct on behalf of the Applicant.

Mr G Hooper on behalf of the Respondent on 4 April 2018.

Mr P. Murray of the MTAQ on behalf of the Respondent on 16 April 2018.

[1] Exhibit A1 Witness Statement of Mr Lewis Smith dated 23 March 2018; Exhibit A2 Witness Statement of John Malcolm Bingham dated 23 March 2018.

[2] Transcript of 4 April 2018 at PN148 - 154

[5] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[6] Halls v McCardle and Ors [2014] FCCA 316.

[7] Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

[8] Nulty v Blue Star Group [2011] FWAFB 975 at [13].

[9] [2011] FWAFB 2728.

[11] Clark v Ringwood Private Hospital (1997) 74 IR 413.

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

Printed by authority of the Commonwealth Government Printer