Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2018] FWC 2437 of Commissioner McKinnon at Melbourne on 4 May 2018 in matter number U2018/2465 - extension of time - adoption of a 'decision rule' that an applicant for an extension of time must provide a credible reason for the whole of the delay - error of law - Stogiannidis applied - permission to appeal granted - appeal upheld -rehearing - representative error - application dismissed.

[1] Mr Keith Long (Mr Long; the Appellant) has applied for permission to appeal and has appealed against a decision[1] made by Commissioner McKinnon (the Commissioner) on 4 May 2018 (the Decision), in which the Commissioner refused the Appellant's application for an extension of time to lodge an application for an unfair dismissal remedy. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.

[2] It is necessary to say something about s.394 first, before turning to the Decision and the grounds of appeal.

[3] Section 394(2) provides that an application for an unfair dismissal remedy (an unfair dismissal application) must be made:

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

(b) within such further period as the FWC allows under subsection (3).

[4] It is common ground that Mr. Long's application was lodged out of time; though the date on which his dismissal took effect is a matter of dispute and we return to that issue later.

[5] Section 394(3) sets out the circumstances in which the Commission may grant an extension of time, as follows:

'394 Application for unfair dismissal remedy

(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.'

[6] A decision whether to extend time under s.394(3) involves the exercise of a discretion, so much is clear from the use of the word 'may' in s.394(3). The discretion is only enlivened if the Commission is satisfied 'that there are exceptional circumstances'. The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time.[2]

[7] In determining whether there are 'exceptional circumstances' the Commission is required to 'take into account' the matters set out in s.394(3)(a)-(f). To take a matter into account means that the matter is a 'relevant consideration' in the Peko-Wallsend[3] sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.394(3)(a)-(f) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process.[4] As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:[5]

'To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant'.

[8] Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of 'exceptional circumstances' in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:

'[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.' [6] (emphasis added)

[9] Generally speaking, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be regarded as exceptional.[7]

[10] We now turn to the Decision which is the subject of the appeal.

[11] We note at the outset that the date of Mr Long's dismissal was a matter of dispute in the proceedings at first instance. Yarra Trams wrote to Mr Long on 2 November 2017 in the following terms:

'Following the investigation outcome meeting on 2 November 2017, I confirm Yarra Trams' decision to terminate your employment with effect from 2 November 2017.

As discussed, the reason for the termination of your employment is due to serious safety breaches of the Yarra Trams rules, specifically Cardinal Rule 2 - Handheld Mobile Devices.

Your breach is considered serious misconduct. Your final pay will include pay to the end of today, 5 weeks' pay in lieu of notice and accrued leave entitlements.

You are required to return all Yarra Trams property, please contact your team manager to arrange to do this and collect your personal belongings.

As explained in the meeting, you may appeal this decision by making a request in writing to the Chief Executive Officer within 48 hours.'[8]

[12] The appeal process referred to is set out in the Yarra Trams Enterprise Agreement 2015 - Operations (the Yarra Trams Agreement). Mr Long exercised his right of appeal. The appeal process concluded on 14 December 2017 and on 22 December 2017 Yarra Trams advised Mr Long's union representative that it would not revisit its decision to dismiss Mr Long.

[13] In the proceedings at first instance the Appellant contended that the termination did not take effect until it was confirmed following the internal appeal process. The Commissioner dealt with this issue at paragraphs [6]-[13] of the Decision and concluded as follows:

'[9] I do not accept that the dismissal was effectively stayed by the appeal process.

[10] There is nothing in the language of the appeal process term to suggest that an appeal has the effect of delaying or suspending a decision to dismiss.

[11] The letter of termination clearly states that the dismissal took effect on 2 November 2017. It set out reasons for dismissal and a requirement for all employer property to be returned. There was no commitment to suspend or delay the dismissal pending the outcome of any appeal.

[12] There is no dispute that Mr Long was given the letter of termination on 2 November 2017. 7 I find that it clearly communicated the fact of his dismissal to Mr Long. On the authority in Stevanovski, it took effect from that day. Ayub does not appear to me to assist in the present case.

[13] I find that the dismissal took effect on 2 November 2017. The delay in making this application is accordingly 106 days.'

[14] The effect of an internal appeal process depends on the facts in each case, in particular upon the terms of such a process and what was communicated to the employee. We discern no error of principle in the approach adopted by the Commissioner and would also observe that the Commissioner's approach is consistent with the recent case of Qantas Airways Limited v Jarrod McRae.[9] In any event there is no challenge on appeal to the Commissioner's finding that the dismissal took effect on 2 November 2017.

[15] The application for an unfair dismissal remedy was lodged on 9 March 2018, some 15 weeks late.

[16] In the Decision the Commissioner considered each of the matters specified in s.394 (3)(a) to (f). At paragraphs [16]-[31] of the Decision the Commissioner dealt with the reasons advanced by Mr Long for the delay in lodging his unfair dismissal application. Mr Long had contended that the reason for the delay was that he was awaiting the outcome of the internal appeal process and that after that process concluded it took some time for the lawyers he contacted to return his calls.

[17] As mentioned earlier, Mr Long's internal appeal was determined on 14 December 2017 and on 22 December 2017 Yarra Trams advised Mr Teasdale (Mr Long's RTBU representative) that it would not review the decision to dismiss Mr Long. On 22 January 2018 Mr Long contacted J.N. Zigouras lawyers and sent them some documents about his dismissal. On 19 February 2018 Mrs Long contacted J.N. Zigouras to ask that they work on the case. On 3 March 2018, J.N Zigouras referred Mr Long to his current lawyers. On 7 March 2018 Mr Long met with his lawyers and on 9 March 2018 his unfair dismissal application was lodged.

[18] The Commissioner's ultimate conclusion as to the reasons for the delay is set out at paragraphs [27] and [31]:

'[27] I am satisfied that immediately after his dismissal, Mr Long challenged the decision by seeking that it be reviewed through the appeals process. This weighs in favour of a grant of additional time...

[31] It is clear that after 3 March, his lawyers acted quickly on his behalf to commence the application notwithstanding the jurisdictional hurdle he now faced. However, the decision to wait so long for JN Zigouras to call him back was not satisfactorily explained. Mr Long says he was waiting for the lawyers to respond. Ultimately, it was his responsibility to diligently pursue the matter if his intention was to continue to challenge the dismissal. His failure to do so was unwise and weighs against the grant of additional time.'

[19] The Commissioner then dealt with the other relevant considerations and made the following findings:

• Mr Long took steps to dispute the dismissal by electing to appeal through the internal appeal process, but subsequently showed a 'lack of diligence'[10] in pursing the matter (s.394(3)(c)). The Commissioner concluded (at [36]):

**'**I find this factor to be finely balanced. The election to appeal through the appeal process term weighs in favour of a grant of additional time but the subsequent lack of diligence in pursuing the matter weighs against it.'

• There was no evidence of any prejudice to Yarra Trams if the application proceeds (s.394(3)(d)) and the Commissioner concluded (at [37]) that 'This factor is a neutral consideration.'

• The merits of the substantive application are dealt with at [38]-[40] of the Decision (s.394(3)(e) and the Commissioner concluded (at [41]): 'On balance, this factor weighs against the grant of additional time.'

• There was nothing to indicate that fairness as between the applicant and other persons in a similar position was a relevant factor in this case (s.394(3)(f)). The Commissioner regarded this matter as a 'neutral consideration' (see [42] of the Decision).

[20] The Commissioner's conclusion is set out at paragraphs [43]-[46] of the Decision:

'[43] While Mr Long and his wife took steps to challenge the dismissal, including under the appeal process term, Mr Long could have been in no doubt that Yarra Trams did not intend to reverse the decision to dismiss him after 5 February 2018. I am not satisfied that the matter was diligently pursued by him after 5 February 2018.

[44] While regrettable, I do not consider it unusual for lawyers to sometimes fail to return the call of a prospective client. In those circumstances, an applicant seeking to challenge their dismissal has a responsibility to actively follow up with them or seek alternative counsel.

[45] Similarly, if he was given the impression by the RTBU that there was no point challenging the dismissal, the evidence of his decision to contact lawyers for advice suggests that he did not accept this advice without question because he decided to seek a second opinion. I am not satisfied that advice given by the RTBU adequately explains the delay in seeking to pursue the matter further.

[46] Taking into account the reasons given for the entire period of the delay as well as the other factors set out above, on balance I am not satisfied that there are exceptional circumstances such that the Commission should allow Mr Long a further period of time to make his application.'

[21] As mentioned earlier, Mr Long has applied for permission to appeal, and has appealed, the Decision.

[22] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[11] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[23] This appeal is one to which s.400 of the Act applies. Section 400 provides:

'(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.'

[24] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as "a stringent one".[12]

[25] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[13] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

'... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.'[14]

[26] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[15] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[16]

[27] It is only necessary to deal with one of the arguments advanced on behalf of the Appellant.

[28] The Appellant contends that paragraph [15] of the Decision 'reveals obvious error' and that the proposition there stated is inconsistent with Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters ('Stogiannidis')[17]and Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software ('Elliott').[18]

[29] At paragraph [15] of the Decision the Commissioner states:

'An individual seeking additional time to make an application must provide a credible reason for the whole of the delay'. (emphasis added)

[30] The Commissioner cites Cheval Properties Pty Ltd (t/a Penrith Hotel Motel) v Smithers ('Cheval')[19] as authority for the above proposition. Later, at paragraph [46] the Commissioner sets out her conclusion:

'Taking into account the reasons given for the entire period of the delay as well as the other factors set out above, on balance I am not satisfied that there are exceptional circumstances such that the Commission should allow Mr Long a further period of time to make his application.'

[31] The Decision was made under s.394(3) and, as mentioned earlier, s.394(3) is in substantially the same terms as s.366(2). Section 366(2) was recently comprehensively considered by a Full Bench of the Commission in Stogiannidis. Given the substantive similarity between ss.366(2) and 394(3), Stogiannidis is directly relevant to the proper construction of s.394(3).

[32] The Respondent submits that the Appellant fails to take into account the totality of the Decision and mischaracterises Stogiannidis. In respect of the first point the Respondent submits:

'Self-evidently, Commissioner McKinnon did not apply the decision in Cheval as a decision rule when making her final determination in the Decision, as she considered each of the matters in s.394(3)(a) through (f) and made a determination in relation to each, before weighing her consideration as to whether Mr Long had satisfied her that there were exceptional circumstances warranting an extension of time to file his Application outside the statutory time limit. Further, she did not apply the decision in Cheval improperly, as she did consider whether Mr Long had explained the totality of the delay, determined that he had not adequately explained the period between 5 February 2018 and 3 March 2018, and considered this in the context of all other matters required to be considered under s.394(3) of the FW Act.'[20]

[33] As to the contention that the Appellant mischaracterises Stogiannidis, the Respondent submits that Stogiannidis is authority for the proposition that the test in Cheval is not to be applied as a 'decision rule' when determining an extension of time under s.394(3):

'that is, once it is determined that the totality of the delay is not explained, the decision-maker cannot then determine that there can be no extension of time under s.394(3) without first also considering the other factors in s.394(3) of the FW Act.'

[34] In Stogiannidis the Full Bench concluded that the Commissioner at first instance had erred by elevating one relevant factor - that is, the reason for delay under s.366(2)(a) - into a 'decision rule so as to allow the automatic production of a solution'.[21] In the decision which was the subject of that appeal (at [29]) the Commissioner said:

'The applicant needs to provide a credible explanation for the entire period of the delay, but has not done so.' (emphasis added)

[35] The authority cited by the Commissioner in support of the above proposition was Cheval.[22] On appeal the Full Bench expressed doubt as to whether Cheval was authority for the stated proposition but in any event concluded that to the extent that Cheval may be said to be authority for such a proposition it was plainly wrong. The Full Bench concluded:

'[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time 'needs to provide a credible explanation for the entire period', it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.

[41] The 'reason for the delay' is a factor that the Commission must take into account in deciding whether there are exceptional circumstances. A distinction may be drawn between the matters relevant to the determination of whether the circumstances can be properly characterised as exceptional (i.e. s.366(2)(a)-(e)) and the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.

[47] Given the error in [29] we have concluded that the Decision is attended with sufficient doubt as to warrant its reconsideration on appeal. On that basis we grant permission to appeal. The adoption of the decision rule in [29] (however construed) amounts to an error of law and one that plainly influenced the Commissioner's ultimate conclusion that Mr Stogiannidis's circumstances cannot be regarded as exceptional, such as to enliven the discretion to extend time. We uphold the appeal on that basis. In the circumstances it is unnecessary to give further consideration to the other grounds of appeal.'

[36] Based on the extracts from the Decision set out above (at [29] to [30] above), and having regard to the Decision as a whole, it is apparent that the Commissioner adopted and applied a decision rule to the affect that an applicant for an extension of time must provide a credible explanation for the whole of the delay. As decided in Stogiannidis the adoption of such a decision rule is an error of law. On that basis, the Decision is attended with error and with sufficient doubt such as to warrant its reconsideration on appeal.

[37] The adoption of the decision rule at [15] of the Decision amounts to an error of law and one that influenced the Commissioner's ultimate conclusion that Mr Long's circumstances cannot be regarded as exceptional, such as to enliven the discretion to extend time. We are satisfied that it is in the public interest to grant permission to appeal. We grant permission to appeal and uphold the appeal on the basis of the error of law to which we have referred, and quash the Decision.

[38] In the event that the appeal was upheld the parties submitted that we should rehear the extension of time application and determine it on the basis of the material before us. Neither party sought to adduce any further evidence.

[39] We first turn to the matters we are required to take into account pursuant to s.394(3).

[40] The 'delay' required to be considered in s.394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[23] Nor does the 21 day period prescribed in s.394(2) include the day on which the dismissal took effect. Further, if the final day of the 21 day period falls on a weekend or a public holiday the prescribed time will be extended until the next business day.[24]

[41] Mr Long's employment was terminated on 2 November 2017. As required by s.394(2), an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect - in this case by 23 November 2017. Mr Long's application was filed on 9 March 2018, some 15 weeks outside the prescribed time period.

[42] Mr Long and his wife both gave evidence in the proceedings at first instance.[25] On the basis of that evidence and the other material before us we make the following findings:

• Shortly after he was dismissed Mr Long exercised his rights under the Yarra Trams Agreement. The role of the Independent Chair under that process is to make a recommendation as to the appropriate disciplinary action on the basis of all the material.[26]

• On 11 November 2017 Mr Long's appeal was heard by Mr Lacy.[27]

• On 14 December 2017 Mr Lacy issued his 'Decision and Recommendation' in relation to the appeal.[28] (We return to the content of the 'Decision and Recommendation' shortly).

• On or about 22 January 2018 Mr Long sent 'all the details of the documents that I had' to J.N. Zigouras lawyers.[29]

• On 5 February 2018 Mr Long was informed that Yarra Trams did not intend to review its decision to terminate his employment in light of the internal appeal decision.[30]

• On or about 19 February 2018 Mrs Long contacted J.N. Zigouras lawyers to follow up as the lawyers had not responded. As Mrs Long put it: 'I picked up the phone and called her, and asked her to please work on it because we were working against time. Time was running against us'.[31]

• On 3 March 2018 J.N. Zigouras referred Mr Long to his current lawyer; on 7 March 2018 Mr Long met with his lawyer and on 9 March 2018 the substantive application was filed.[32]

[43] We note that counsel for the Applicant submitted[33] that Mrs Long contacted J.N. Zigouras on three or four occasions and relied on the following passage from Mr Long's evidence in support of this contention,:

'THE COMMISSIONER: All right. What did you do between that time and 3 March when your lawyers contacted you to refer you to another law firm?---

MR LONG: As I told you, I contacted the first lawyer and she did delay a while before she could get back to me.

MR LONG: It was about the third or fourth phone call which my wife made to her and it's only then that she referred me to Mr Chris Pollard.'

[44] We reject the proposition advanced on behalf of the Applicant; it is directly inconsistent with Mrs Long's evidence and Mrs Long is plainly in the best position to give evidence about her actions. Mrs Long recalled contacting J.N. Zigouras around 19 February but clearly states that she did not contact them before that date.[34] We also note that in the course of his evidence Mr Long gave no indication that he himself had made any attempt to contact J.N. Zigouras after he forwarded the documentation to them on 22 January 2018.

[45] We are satisfied that Mr Long has a satisfactory explanation for the delay between 24 November 2017 (the day after the last day of the prescribed 21 day period for filing the application) and 5 February 2018 (when he became aware that Yarra Trams would not be reviewing the termination decision). This period encompasses the internal appeal process and Mr Long's notification of the Respondent's response to the outcome of that process.

[46] We are also satisfied that there is a satisfactory explanation for the delay between 3 March 2018 and the lodgement of the application on 9 March 2018. In this period Mr Long was referred to his current lawyer, met with him on 7 March and the application was lodged on 9 March 2018.

[47] The period in contention is between 5 February and 3 March 2018.

[48] The Applicant submits that the delay during this period was due to representative error. The submission put is encapsulated in the following extract from the Applicant's oral submissions before us:

'What I think to be fair on analysis of this case and it's still, in my submission, representative error is that the matter was left in the hands of the representative by virtue of providing the documents, and there were steps taken to inquire as to the status of the claim on more than one occasion. I think to be a fair assessment of the evidence that's what happened, and that gives rise in my submission to the legitimate expectation that the representative will act, and as solicitors in accordance with their professional obligations to a client.'[35]

[49] The point advanced is also set out in the following passage from the Applicant's Outline of Submissions:

'there is no warrant under the existing law for the Appellant to be required to actively follow up with their representatives or seek alternative counsel. The Appellant is entitled to rely on the professional obligations of solicitors to discharge their obligations.'[36]

[50] In short, it is contended that on forwarding the relevant documents to J.N. Zigouras lawyers on 22 January 2018 the Applicant had a legitimate explanation that they would act 'as solicitors in accordance with their professional obligations to a client' and on that basis the delay between 5 February and 3 March 2018 may be attributed to representative error.

[51] The Applicant relies on a number of authorities in support of the submission advanced: Robinson v Interstate Transport Pty Ltd ('Robinson');[37] De La Rosa v Motor One Group Pty Ltd ('De La Rosa');[38] Lewis v Hitachi Construction Machinery (Australia) Pty Ltd ('Lewis');[39] Lawless v Gary Hooper Family Trust ('Lawless')[40] and Jeffory Power v Firudala Community Co-Operate Society ('Power').[41] In our view the authorities referred to do not assist the Applicant.

[52] As noted in De La Rosa, the issue of representative error as a reason for the late lodgement of an application was dealt with extensively in Clark v Ringwood Private Hospital (Clark).[42] In Davidson v Aboriginal Islander Child Care Agency[43] a subsequent Full Bench summarised the general propositions in Clark, as follows:

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

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

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

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

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

[53] The above summary was adopted and applied in De La Rosa, in which the Full Bench said:

'It follows that the actions of the applicant in the s.170CE matter is a relevant consideration in determining whether, in the circumstances of a particular case, representative error satisfactorily explains late lodgement...'[44]

[54] The Applicant relies on the following passage of De La Rosa (at [24):

'As is evident from Clark, little might be required to satisfy the Commission that the applicant was blameless in the delay.' (emphasis added).

[55] We would observe that in the above passage the Full Bench was not setting out a general principle to the effect that little is required to satisfy the Commission that an applicant was blameless in the delay. As is clear from the use of the word might, the Full Bench was simply observing that depending on the circumstances 'little might be required'. Further the passage cited by the Appellant goes on to state:

'In the context of a relatively short delay, it may simply be a matter of establishing that the applicant gave instructions to lodge a Notice of Election and thereafter left matters in the hands of his or her representative'. (emphasis added).

[56] De La Rosa was applied in Robinson in which the Full Bench concluded that the member at first instance had erred in his approach to representative error. At [30] of its Decision the Full Bench said:

'Mr Robinson arranged legal advice three days after the termination of his employment. At that time Mr Robinson requested that Mr Tayler prepare a client agreement for his consideration and upon receiving the agreement, he executed the agreement on 13 May 2010, within a week of its receipt. On the day he executed the agreement, Mr Robinson instructed Mr Tayler to file a general protections application on his behalf. It is unsurprising that Mr Robinson, having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative's requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of providing clear instructions to Mr Tayler to lodge his application.'[45]

[57] We note that the delay in Robinson was only 3 days and that Mr Robinson had instructed his legal representative to lodge his application and had complied with all of the representative's requirements for accepting instructions. The facts before us are quite different and Robinson can be distinguished on that basis.

[58] The other cases relied on by the Applicant are also distinguishable on the facts. In each case the applicant had given instructions to their representative to lodge an application on their behalf.[46]

[59] The submission advanced on behalf of the Applicant is devoid of merit. There is no evidence to suggest that J.N. Zigouras were, at any time, Mr Long's representatives in the proceedings. Nor is there any evidence that Mr Long instructed J.N. Zigouras to file an application on his behalf. Contrary to the Applicant's contention we fail to see how the delay in J.N. Zigouras responding to an inquiry by a prospective client (Mr Long) can be characterised as representative error in circumstances where J.N. Zigouras were not, at any relevant time, Mr Long's legal representatives.

[60] Further, the Applicant's submission put is contrary to principle. An applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by. As the Respondent put it:

'Mr Long sitting on his hands for several weeks while waiting for JN Zigouras lawyers (not yet his representatives) to call him back is an omission by Mr Long to take further steps, and therefore it is Mr Long's inaction which has caused the delay in him obtaining legal representation'.[47]

[61] Each of the authorities cited by the Applicant make it clear that the actions of the applicant in a s.170CE matter are a relevant consideration in determining whether representative error satisfactorily explains the late lodgement.

[62] The evidence in the present matter establishes that after he forwarded some documents to J.N. Zigouras on 22 January 2018 the only step taken on behalf of the Applicant in the period 5 February to 3 March 2018 was Mrs Long's telephone call to J.N. Zigouras on 19 February 2018. Contrary to the submission advanced on behalf of the Applicant we are not persuaded that a satisfactory explanation has been provided for the delay between 5 February and 3 March 2018.

[63] The Applicant has failed to provide a satisfactory explanation for a significant period of the delay. This is a factor that weighs against a finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

[64] This consideration is not relevant in the present circumstances. Mr Long was made aware of his dismissal on the day it took effect.

Action taken to dispute the dismissal (s.394(3)(c))

[65] In lodging the internal appeal Mr Long took steps to dispute the dismissal. This is a factor which weighs in favour of a finding of exceptional circumstances.

[66] There is no evidence of any prejudice to Yarra Trams if the substantive application proceeds and the Respondent did not advance any submissions in relation to this consideration. The absence of prejudice is a factor which weighs in favour of a finding of exceptional circumstances.

[67] The Applicant contends that he was only required to establish that his substantive unfair dismissal application was 'not without merit' and refers to Kornicki v Telstra Network Technology Group ('Kornicki')[48] in support of this proposition. In Kornicki the Full Bench considered that in determining whether to grant an application to extent time primary consideration should be given to two factors:

• whether there is an acceptable explanation for the delay; and

• the merits of the substantive application.

[68] As to the merits of the substantive application, the Full Bench 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.'[49]

[69] The above observation needs to be seen in the context of the legislative framework at that time. In Kornicki the Full Bench was construing s.170CE(8) of the Workplace Relations Act 1996 (Cth) which provided that:

'The Commission may accept an application that is lodged out of time if the Commission considers that it would be unfair not to do so'.

'...s.170CE(8) is intended to convey an approach to the exercise of the Commission's discretion which is more generous to applicants than that which prevailed under the former s.170EA(3)(b)...

The central consideration in determining whether or not an out of time application should be accepted is whether it would be unfair to the applicant not to extent the time limit'.[50]

[71] The discretion to extend time in s.394(3) is not enlivened on the basis of a finding that it would be 'unfair not to do so'; rather the Commission must be satisfied that 'there are exceptional circumstances'. For the consideration in s.394(3)(e) to weigh in favour of such a finding it must be shown that there is some merit in the substantive application. The weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application.

[72] In considering the merits of the substantive application for the purpose of s.394(3)(e) the Commission is not in a position to make findings of fact on contested issues, unless evidence is called in respect of these issues. And, as the Full Bench observed in Kyvelos v Champion Socks Pty Ltd,[51] evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an extension of time application:

'In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.'[52]

[73] Though this observation was made in relation to s.170CE(7) of the Workplace Relations Act 1996 (Cth) it is apposite to the consideration of the merits in s.394(3)(c).

[74] In the present matter the parties agreed that the facts giving rise to Mr Long's dismissal are set out in the Decision and Recommendation arising from the internal appeal process. The Decision and Recommendation is set out at Annexure KL-3 to Exhibit 1. The relevant parts of Mr Lacy's Decision and Recommendation are as follows:

12. It is common ground that Mr Long handled a mobile phone while driving tram 25 on 15 September 2017. He has admitted as much. I am satisfied that he was looking at something on the screen of the device at times and was handling it for at least two stops.

13. To say, as Mr Long did, that he travelled two stops while trying to turn the phone off suggests that he must have been looking at the device in one or other of its aspects while driving the tram. He maintains that he was not watching video on the device as alleged by the complainant. I have not seen or heard the complainant and I must accordingly accept Mr Long's denial. I am satisfied however that Mr Long was distracted by the mobile phone while driving the tram. Handling a mobile device while driving a tram is itself a clear breach of Cardinal Rule 2 and constitutes a valid reason for his dismissal. Mr Long was fully familiar with Cardinal Rule 2. It is not apparent to me that Mr Long was intentionally breaching the rule. He was however negligent in not recognising the potential danger to himself, his passengers and other road users during the time or times he allowed himself to be distracted by the mobile phone while he was driving.

14. The question that must be addressed now is whether the dismissal was harsh, unjust or unreasonable notwithstanding the valid reason. The Investigation Report sets out four categories of matters that may be relevant to the question as to whether Mr Long's dismissal was harsh, unjust or unreasonable. These matters are Mr Long's length or service, his consistency, his acknowledgement that his actions were a grave error of judgment and his honesty throughout the investigation. On the other hand, it is not without significance that Mr Long did not follow protocol for reporting the receipt of lost property to Operations Centre when it was handed to him. Furthermore, he failed to follow protocol in disposal of the lost property. These are factors that must be weighed in the balance also in determining whether the dismissal was harsh, unjust or unreasonable.

15. The investigation report referred to the mitigating factors set out in the foregoing paragraph and concluded that management's trust and confidence in Mr Long could be restored. It recommended a final written warning. It is not clear from Mr Long's interview on 21 September 2017, or the termination letter, that Yarra Trams gave any weight or consideration to the matters that have been identified by the investigator as mitigating factors. There is nothing in the material before me that explains the reason for rejecting the investigator's recommendation.

16. It is well settled that the issue of whether a valid reason for dismissal exists is to be determined from the employer's perspective, and that issues of substantive fairness from the employee's perspective are to be considered separately: in 8, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [35] and [42]-[46].

17. Mr Long is to be commended for his honesty throughout the investigation, his acknowledgement that the conduct was a grave error of judgment and the remorse that he has shown. Having regard to the breaches of Yarra Trams Cardinal Rule and the several other rules however, I am not satisfied that the mitigating factors in themselves weigh in favour of finding the dismissal was harsh. The breaches were at the serious end of the scale in terms of the potential threat to safety of the driver, passengers and other road users. I am satisfied however, that Yarra Trams apparent failure to consider the mitigating matters weigh in favour of a finding the decision to dismiss was harsh and unreasonable. I say apparent failure to consider the mitigating factors because there is no material before me to suggest otherwise. I can only act on the material before me. It also appears that Yarra Trams has failed to give consideration to alternatives to termination of employment. In this regard, I note that Clause 3.2 of Attachment 1 to the EA mandates that alternatives to termination of employment are to be considered in all cases.

18. In light of my findings in paragraph 17, I recommend that Yarra Trams review its decision to dismiss taking account of the mitigating factors set above and whether there are any alternatives to dismissal.

19. I recommend that Yarra Trams review its decision to dismiss Mr Long taking account of the mitigating factors set out in [14] above and whether there are any alternatives to dismissal.'

[75] On the basis of the agreed facts it may be accepted that there was a valid reason for Mr Long's dismissal. Of course the determination of a valid reason is but one of those factors the Commission must take into account in considering whether a dismissal was harsh, unjust or unreasonable.[53] In the present case there were significant mitigating factors which would weigh in favour of a finding that the dismissal was harsh. Mr Long is 60 years of age[54] and had been employed by Yarra Trams for 12 years;[55] he has acknowledged that he committed a grave error of judgment and has demonstrated remorse for his conduct.

[76] We respectfully disagree with the Commissioner's finding at first instance that 'this factor weighs against the grant of additional time'.[56] While we would not categorise the substantive application as a 'strong case' we are satisfied that it is of sufficient merit to weigh in favour of a finding of exceptional circumstances.

Fairness as between the person and other persons in a similar position (s.394(3)(f))

[77] This consideration is not relevant in the present circumstances.

[78] Taking into account the matters specified at s.394(3)(a) to (f), insofar as they are relevant in the circumstances, we are not satisfied that there are exceptional circumstances such as to allow a further period for the substantive application to be made. Accordingly the discretion in s.394(3) is not enlivened and we dismiss the application to extend time.

[79] For the reasons given, we grant permission to appeal, uphold the appeal and quash the Decision. On rehearing the matter we have decided to refuse Mr Long's application for an extension of time.

[1] [2018] FWC 2437.

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

[3] Minister for Aboriginal Affairs v Pelco-Wallsend [1986] HCA 40; (1986) 162 CLR 24.

[4] Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leclee Pty Ltd (1999] FCA 1121_; Edwards v Giudice_ [1999] FCA 1836; National Retail Association v Fair Work Commission [2014] FCAFC 118.

[5] Minister for Aboriginal Affairs v Pelco-Wallsend [1986] HCA 40; (1986) 162 CLR 24.

[6] [2011] FWAFB 975.

[7] See Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]- [26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).

[8] [2018] FWC 2437 at [6].

[9] Qantas Airways Limited v Jarrod McRae [2017] FWCFB 4033.

[10] [2017] FWC 2487 at [36].

[11] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[12] [2011] FCAFC 54; (2011) 192 FCR 78 at [43].

[13] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44] -[46].

[14] [2010] FWAFB 5343, 197 IR 266 at [27].

[15] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[16] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

[17] [2018] FWCFB 901.

[18] [2018] FWCFB 3288.

[19] Cheval Properties Pty Ltd v Smithers [2010] FWAFB 7251; (2010) 197 IR 403.

[20] Respondent's Outline of Submissions, 28 June 2018 at [30].

[22] Cheval Properties Pty Ltd v Smithers [2010] FWAFB 7251; (2010) 197 IR 403.

[23] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

[24] See s.36 Acts Interpretations Act 1901 (Cth), as in force on 25 June 2009; see s.40A of the Act; Kristia Cahill v Bstore Pty Ltd t/as Bstore for Berkenstock [2015] FWCFB 103; Stedman v Transdev v NSW Pty Ltd t/as Transdev Buses [2015] FWCFB 1877.

[25] See Exhibit 1; Transcript 20 April 2018 at [14]-[80] and [85]-[98].

[26] Yarra Trams Enterprise Agreement 2015 - Operations clause 3.5 of Attachment 1.

[27] Form F3 Employer Response Form filed 20 March 2018.

[30] Transcript 20 April 2018 at [48].

[32] See [2018] FWC 2437 at [30], this finding was not challenged on appeal and we accept it.

[33] Transcript 10 July 2018 at [68]-[96] and [100]-[108].

[36] Appellant's Outline of Submissions, 19 June 2018 at [18].

[37] Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728.

[38] De La Rosa v Motor One Group Pty Ltd PR924583, 12 November 2002, per Watson and Kaufman SDPPs and Foggo C.

[39] Lewis v Hitachi Construction Machinery (Australia) Pty Ltd [2018] FWC 596.

[40] Lawless v Gary Hooper Family Trust [2018] FWC 2202.

[41] Jeffory Power v Firudala Community Co-Operate Society [2018] FWC 3375.

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

[43] Davidson v Aboriginal Islander Child Care Agency (1998) 105 IR 1.

[44] PR924583 12 November 2002 at [24] per Watson and Kaufman SDP's and Foggo C.

[45] See C Ware v Elders Insurance Limited, PR936707.

[46] Lewis at [50] - [61]; Power at [30]; and Lawless at [28]-[30].

[47] Respondent's Outline of Submissions, 28 June 2018 at [22].

[48] Kornicki v Telstra Network Technology Group (1997) 140 IR 1.

[51] Print T2421, 10 November 2000 per Giudice P, Acton SDP and Gay C.

[53] See s.387 and B v Australian Postal Corp [2013] FWCFB 6191; (2013) 238 IR 1 at [41].

[54] Transcript 20 April 2018 at [124].

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