Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Extension of time - Whether exceptional circumstances present - Representative Error - Whether Applicant blameless in delay - Exceptional circumstances present - Extension of time granted.

[1] This Decision concerns an application by Ms Katie Rhind under s. 394 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) for an unfair dismissal remedy in respect of her dismissal by Ozcare. Ms Rhind's employment was terminated on 26 July 2018. The application was made on 17 August 2018.

[2] By virtue of s. 394(2) of the Act an application under s. 394 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. 394(3). The application was made one day outside the time required in s. 394(2) of the Act. It is therefore necessary to determine whether a further period should be allowed under s. 394(3) of the Act for the application to be made.

[3] Ozcare did not consent to participate in a conciliation conference prior to the determination of whether Ms Rhind should be granted a further period in which to make her application. Correspondence was sent to Ms Rhind from the Commission on 21 September 2018 advising that the application had been filed outside the time required in s. 394(2) of the Act and explaining what the Commission was required to consider in s. 394(3) of the Act, to determine whether exceptional circumstances existed in order for a further period to be granted. The letter invited Ms Rhind to provide a written statement explaining how exceptional circumstances exist to allow the granting of a further period.

[4] A letter was received on 27 September 2018 from the Queensland Nurses and Midwives' Union (the QNMU) which represents Ms Rhind, signed by the Union's Secretary Ms Beth Mohle. The letter stated that the late filing of Ms Rhind's application was due to representative error, and contained submissions as to why a further period should be granted. The matter was subsequently allocated to me to determine whether a further period should be granted.

[5] Directions were issued requiring Ms Rhind 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 her unfair dismissal application, by 4.00pm on Monday 15 October 2018. Ozcare was directed to file and serve any material in relation to the matter by 4.00pm on Monday 22 October 2018. The QNMU indicated on Ms Rhind's behalf that it sought to rely on the correspondence of 27 September 2018 at the hearing.

[6] The matter was listed for Jurisdiction Hearing on Wednesday 31 October 2018. Permission was sought by Ozcare to be represented by Mr Murray Procter of ClarkeKann Lawyers in relation to application for a further period in and pursuant to s. 596 of the Act I granted permission on the basis that it enabled the matter to be dealt with more efficiently taking into account its complexity. Ms Rhind was represented by Ms Anne-Maree Roche, Industrial Officer of the QNMU. Given that Ms Rhind was represented, I also considered that this balanced any unfairness associated with Ozcare being granted permission to be represented by a lawyer in relation to the application to be granted a further period.

[7] The QNMU on behalf of Ms Rhind responded to Directions by filing a submission attaching various pieces of correspondence. Essentially the submission filed by the QNMU relies on representative error on its part, but no statement of evidence from the person who made the alleged error or addressing the error was filed. On the basis of the material attached to the QNMU's submission the following relevant facts are apparent. Ms Rhind was dismissed by letter dated 24 July 2018 emailed to Ms Rhind on 26 July 2018. The Form F2 Application states that Ms Rhind was notified of her dismissal on 26 July 2018 but that it took effect on 24 July 2018. Ozcare concedes in its submissions that Ms Rhind was informed on 26 July 2018 that she had been dismissed.

[8] On the same day, Ms Rhind forwarded the email containing her termination letter to the QNMU. Ms Roche responded to Ms Rhind that afternoon by reply email, which read as follows:

My secretary said we have just had a message from Veronica that your employment has been terminated. I have three matters to which I must respond by COB tomorrow so I will contact you in the morning.

The QNMU will lodge an Unfair Dismissal on your behalf.

It's outrageous that Ozcare just emailed the letter to you.

The Time for lodging the UFD is 21 days from receipt of the notice (not including day of receipt) so it's 21 days from tomorrow - 17 August 2018_."_

[9] The QNMU submits that Ms Rhind then immediately emailed documentation to assist QNMU with preparing an unfair dismissal application. Ms Roche sent an email to Ms Rhind at 3.30 pm on 14 August 2018 that attached an unfair dismissal application, and asked Ms Rhind to review the application and to advise of any suggested changes. At the end of the email, Ms Roche again advised Ms Rhind that "we need to file the application by close of business on Friday 17 August 2018."

[10] The QNMU submit that the reason for the delay was due to a mistake in the calculation of the 21 day period by Ms Roche, which resulted in the QNMU inadvertently advising Ms Rhind of the incorrect date the application needed to be filed by. The QNMU further submits that Ms Rhind and the QNMU acted in a timely manner to prepare the application and that Ms Rhind was blameless in the delay.

[11] Ozcare submits that while it accepts the reason the application was filed one day late was due to the error of Ms Roche, Ms Rhind was not blameless in the delay. Ozcare submits the email dated 26 July 2018 from Ms Roche to Ms Rhind correctly stated the 21 day timeframe in which the application needed to be filed, including when the timeframe ran from, and that the only error was Ms Roche's mistake in stating that the final day for filing was 17 August 2018. Ozcare submits that Ms Rhind was clearly aware of the timeframe from the date of her dismissal, and subsequently would have known or ought to have known that the final date was actually 16 August 2018. Further, Ozcare submits that Ms Rhind could not be found to be entirely blameless in the delay.

CONSIDERATION OF WHETHER A FURTHER PERIOD SHOULD BE GRANTED

The approach to deciding whether a further period should be granted

[12] As previously noted, s. 394(2) of the Act requires that an unfair dismissal application under s. 394 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 394(3) of the Act. Section 394(3) sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application to be made as follows:

"(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."

[13] 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.[1]

[14] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable.[2] The Applicant must provide a credible reason for the whole of the period that the application was delayed.[3] The circumstances from the time of the dismissal must also be considered and ultimately whether that reason constitutes exceptional circumstances.[4]

[15] 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.[5] There is a line of authority for the proposition that representative error may be a sufficient reason to grant a further period, depending on the circumstances including whether the applicant it blameless and has taken reasonable steps to provide information and instructions necessary for the preparation of the application and to inquire about whether the application has been lodged.[6]

[16] In considering an application for an extension of time I must be satisfied that there are "exceptional circumstances" taking into account those matters in s.394(3) of the Act. I will consider each of those matters in turn.

Reasons for the delay - s.394(3)(a)

[17] The reason for the delay advanced on behalf of Ms Rhind 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. Further, an Applicant who seeks representation from a representative also has a legitimate expectation that advice they are given in relation to procedural matters is correct.

[18] In Robinson v Interstate Transport Pty Ltd[7], 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.[8] Representative error can include inactivity or carelessness of an applicant's representative.[9] 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.

[19] 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. 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.

[20] In the present case, in two pieces of correspondence, Ms Rhind's representative Ms Roche stated to Ms Rhind that she had 21 days from the date of receipt of the notice (not including the date of receipt) and that the date for lodging the application was 17 August 2018. That advice was incorrect. However in circumstances where Ms Rhind had relied on her Union to represent her interests I do not accept that the fact that Ms Rhind did not double check the calculation of the date that she was provided by Ms Roche overcomes the impact of what is a clear representative error. I am also of the view that while this miscalculation is a clear representative error, the extent of the miscalculation is not immediately apparent given that the error is a miscalculation of one day. Neither do I accept the submission made by Ozcare that a conscientious applicant would have checked the date and that this should weigh against a finding that the representative error was an exceptional circumstance. It is also the case that Ms Rhind took all steps that were required of her to provide information to the QNMU, to enable the application to be filed.

[21] Accordingly the reason for the delay in filing the application is a matter that weighs in favour of the grant of a further period.

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

[22] It is not in dispute that Ms Rhind was aware of her termination on 26 July 2018 which was the day she was dismissed. This is a neutral consideration.

Any action taken by the person to dispute the dismissal - s.394(3)(c)

[23] Ms Rhind forwarded her letter of termination to the QNMU on the day she was dismissed. Ozcare submits that it is not clear whether Ms Rhind did so to dispute her dismissal, and that it was likely that Ms Rhind was only providing the termination letter to the QNMU to inform them of the outcome of a performance management process undertaken prior to Ms Rhind's dismissal, where the QNMU had also represented Ms Rhind. Ozcare submits that the correspondence forwarding the letter did not demonstrate that Ms Rhind intended to dispute the dismissal or to file an application.

[24] I do not accept Ozcare's submission. The letter was forwarded on the day it was received and the QNMU through Ms Roche responded to the letter indicating that an unfair dismissal application would be made on Ms Rhind's behalf. There is also evidence that Ms Rhind provided information to the Union necessary to enable the application to be drafted.

[25] I also note that there was no evidence demonstrating that either Ms Rhind, or the QNMU on her behalf, gave any indication to Ozcare that Ms Rhind disputed her dismissal until her application was filed. However, it is also the case that throughout the process that led to Ms Rhind's dismissal, she was represented by the QNMU. I consider this to be at best, a neutral factor.

Prejudice to the employer (including prejudice caused by the delay) - s.394(3)(d)

[26] Ms Rhind submits there is no prejudice to Ozcare as a result of the application being filed one day out of time. Ozcare submits that while it would not suffer any prejudice, the absence of prejudice should not be used as a ground to grant the extension.

[27] While not determinative, the matter of absence of prejudice weighs in favour of the exercise of discretion to grant a further period to Ms Rhind.

The merits of the application - s.394(3)(e)

[28] In the matter of Kornicki v Telstra-Network Technology Group[10] 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."[11]

[29] After considering the material filed by the parties it is clear that there are factual disputes between the parties. 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 weighs 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 - s.394(3)(f)

[30] In the particular circumstances of this case there are no other employees of Ozcare in the same position as Ms Rhind. 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 in the delay and has given clear instructions to file an application, or to otherwise prosecute the application.

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

[32] 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 Ms Rhind to make her unfair dismissal application. I extend the time for Ms Rhind's unfair dismissal application (U2018/8635) to 17 August 2018. An Order to that effect will issue with this Decision.

Ms Anne-Maree Roche of the QNMU on behalf of the Applicant.

Mr Murray Procter of Clarke Kann Lawyers on behalf of the Respondent.

[1] 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.

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

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

[5] Nulty v Blue Star Group [2011] FWAFB 975.

[6] Rapely v MSS Security Pty Ltd T/A MSS Security [2018] FWC 1792;

[7] [2011] FWA FB 2728

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

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

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