Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Groot Eylandt Mining Company Proprietary Limited

• [1] Ms Leisa Ainslie (the Applicant) was employed by Groot Eylandt Mining Company Proprietary Limited (the Respondent) from 17 December 2018 to 25 November 2021. The Applicant's application for an unfair dismissal remedy (the Application) was lodged with the Fair Work Commission (the Commission) on 17 December 2021, 1 day outside of the 21-day statutory time limit. The Applicant claimed that the delay in filing her application was due to an administrative error on the part of her legal representative, Old Port Chambers.

• [2] The Fair Work Act 2009 (the Act) provides that an application for an unfair dismissal remedy made pursuant to section 394 of the Act must be lodged within 21 days after the dismissal took effect.[1] The Commission can extend the time for the lodgement of an unfair dismissal application if it is satisfied that there are exceptional circumstances.

• [3] In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.394(3) of the Act. Section 394(3) provides:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the person and other persons in a similar position.

Section 394(3)(a) - reason for the delay

• [4] The Applicant submitted that her late application was solely due to an error by Old Port Chambers. The Applicant sent an email to her lawyers and made a payment of $220 to their trust account on 10 December 2021. Relevantly, the email said:

Attachments: 2021.11.25 Leisa Ainslie_Termination.pdf

Please find attached Termination Letter dated 25th November, 2021 for "Leisa Ainslie" formally (sic) of "Gemco", Northern Territory.

The amount of $220 has also been deposited into Old Port Chamber Trust Account of $220.00 inclusively.

• [5] I note the correspondence of the same day between the Applicant and a few of her former work colleagues who had been terminated on the day after the Applicant, namely 26 November 2021:

To: Leonie Phillips; [Applicant's email address redacted]

Leisa, read and fill in the below and send to the lawyers direct.

If you want to join the party you'll need to complete the below and register with the Lawyers .... If Martin wants in he will need to do the same

On 5 Dec 2021, at 7:30 am, bradley miller [email address redacted] wrote:

I haven't been dismissed ... yet! I'm off work on mental health leave but I'm being harassed pretty hard and imagine it only a matter of time.

I've completed all of that and recommended Brad Miller [email address redacted] join up also.

On Fri, Dec 3, 2021 at 1:06 PM Leonie [email address redacted] wrote:

To bring you all up to date with our termination.

We will not be taking Gemco for unfair dismissal, as this only gives us 6 months loss of wages .... the lawyer with (sic) be going for unlawful dismissal, which could equate to years of wages.

If you want to be part of this lawsuit, you will need to do the following.

You then need to send an email to them attaching your termination letter from Gemco. You must put the termination date in the email .... this is very important!!

Also mention my name in your emails and say this is with Gemco.

We only have until the 17th to do this, and as they are extremely busy the earlier we get this to them the easier it will be for them.

If you can't do it today, they will get it over the weekend as they are working 7 days a week .... and they have rung me at 10.15 at night ... so they are really here to help us ......

• [6] I note that the email from Ms Phillips indicates that they were going to lodge unlawful dismissal applications (which I am assuming is a section 723 unlawful termination application) on the basis of an unrestricted financial remedy compared to the 26-week limit of an unfair dismissal application (s.394).

• [7] I note that the Applicant filed a section 394 unfair dismissal application on 17 December 2021, contrary to the advice of Ms Phillips on 10 December 2021.

• [8] It is not in dispute that the Applicant signed a Costs Agreement/Terms of Engagement Agreement (the Agreement) on 17 December 2021 as well as an authority for Old Port Chambers to withdraw money from their trust account.

• [9] The representative of the Applicant argued that they filed applications for 6 other former employees of the Respondent on 17 December 2021, all of which were inside the statutory timeframe. The Applicant's representative claimed that they did not 'pick up' the different termination date of the Applicant compared to her colleagues. The Applicant's representative argued that the Applicant had not been complacent in attending to her application and that she had responded diligently and expeditiously when requested to sign the Costs Agreement.

• [10] The Applicant's representative submitted that it would be unfair if she did not receive the same service as her colleagues and that she was entitled to expect that her representative would be competent enough to file her Application within the statutory timeframe.

• [11] The Respondent submitted that, having viewed the documents of 10 December 2021, there is no direction from the Applicant to Old Port Chambers. The Respondent agreed that the Applicant sent her termination letter and made a payment to their trust account, but that there is no direction or request made by the Applicant for her representatives to actually do anything. The Respondent submitted that the conduct of the Applicant is an essential consideration of the Commission when determining whether to grant an extension of time.

• [12] The Respondent referred me to the decision of Platt C in Begum v Bupa Aged Care [2021] FWC 6405, where the Commissioner held:-

"[22] Whilst I accept that Websters Lawyers was responsible for the delay which occurred post 29 October 2021 (noting that the final day to lodge was 2 November 2021), I am not satisfied that Ms Begum was blameless. Ms Begum gave evidence that she was aware of the time limit and despite having determined to contest the dismissal on 19 October 2021, it appears she did not give instructions to file an application until 29 October 2021. That conduct left only two working days for the unfair dismissal application to be completed and filed by her representative. Whilst representative error was undoubtedly a contributing factor to the delay, the facts in this case are more analogous to Diotti than they are to Robinson, and as such I am not satisfied that Ms Begum was blameless in relation to her unfair dismissal application being lodged late. This factor weighs against a finding that there were exceptional circumstances."

• [13] Relevantly, in Todd Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 (Perry), a Full Bench of the Commission held:-

"[30] There seems little doubt, based on the Appellant's evidence before us, that the delay during the period between 27 October 2015 and the date on which the application was ultimately lodged was occasioned by representative error. In and of itself representative error will not provide an acceptable explanation for a delay. A person relying upon representative error must also show that the person was blameless and did not by act or omission cause or contribute to the error."

• [14] The Applicant's representative submitted that the Applicant was proactive in challenging her termination during the statutory timeframe due to her email and phone call with her former colleague, Ms Phillips and her email to Old Port Chambers on 10 December 2021.

• [15] I note that Ms Phillips is not an employee, agent or representative of Old Port Chambers. Her advice cannot be relied upon by the Applicant. If the Applicant was able to establish some type of employment relationship or agency between Ms Phillips and Old Port Chambers, then the law firm would need to explain why a section 394 application was made rather than a section 723.

• [16] I am satisfied that the Applicant's unfair dismissal application was filed late primarily due to the lack of competence of her representatives, Old Port Chambers. However, the Applicant is not blameless in this delay. The Applicant appears to have done very little to challenge her termination in the first 15 days after her termination. I do not accept the argument that the Applicant was shocked by the Respondent's decision to terminate her employment. The Respondent followed a detailed and consultative show cause process as a result of a direction from the Chief Health Officer (CHO) of the Northern Territory on 13 October 2021, which eventually resulted in the Applicant being stood down and then terminated.

• [17] I find that the Applicant did not give any clear instruction to her representative to file an unfair dismissal application within the statutory timeframe. Whilst I accept that this was primarily the fault of Old Port Chambers, the Applicant did not follow up her email. For the reasons stated above, following the Obiter in Perry, I find that the Applicant was not blameless in her Application being filed 1 day late. I have taken this into account.

Section 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

• [18] It is not in dispute that the Applicant was aware that she had been terminated on the date that it had occurred, namely 25 November 2021. I have taken this into account.

Section 394(3)(c) - any action taken by the person to dispute the dismissal

• [19] The Applicant liaised with her colleagues following her termination and sent Old Port Chambers her termination letter and made a $220 contribution to their trust account on 10 December 2021. I note that the Applicant did not sign a Costs Agreement or Authority to Act until 17 December 2021. I have taken this into account.

• [20] I understand that there are another 5 or 6 former employees of the Respondent who have filed an unfair dismissal application after being terminated for not being compliant with the direction from the CHO. As a result, I find that there would be little prejudice to the Respondent if an extension of time was granted to the Applicant. I have taken this into account.

• [21] In the matter of Kornicki v Telstra-Network Technology Group[2] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. 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 application to establish that the substantive application was not without merit."[3]

• [22] For the purposes of determining whether to grant an extension of time the Commission "should not embark on a detailed consideration of the substantive case."[4]

• [23] The Respondent submitted that the facts of this case enable the Commission to take a firm position in relation to the merits of the Applicant's case because the Applicant has admitted that she has not complied with the vaccination direction of the CHO and that she has no intention of complying in the future.

• [24] The Applicant's representative submitted that, whilst the Applicant has not had her vaccinations, the actions of the Respondent were expedited in reaching the conclusion of termination. The Applicant argued that the 'show cause process' was "an illusion of consultation" on the basis that the Respondent had already determined to terminate the Applicant, without consulting other options such as stand down, annual leave or sick leave. Further, the Applicant argued that the Respondent did not provide sufficient scientific based material to the Applicant to allow her to make an educated decision in relation to the benefits of vaccination. Finally, the Applicant argued that more time was needed to assess the financial ramifications of this decision in relation to her life insurance, etc, because death caused by trial medicines may void her life insurance policy.

• [25] The Applicant's argument appears to be with Northern Territory Government and the CHO, not the Respondent. The Respondent must comply with the Direction of the CHO or face financial penalty. There is no dispute that the CHO Direction applies to the Respondent. I have taken this into account.

Section 394(3)(f) - fairness as between the person and other persons in a similar position.

• [26] I am satisfied that the Applicant has been treated fairly compared to her colleagues. The Applicant's colleagues have all complied with the Act and lodged their applications within the statutory timeframe. I have taken this into account.

• [27] I have taken into account all of the submissions of the parties.

• [28] I am not satisfied that the Applicant is without fault or blame for her late application. The simple fact is that the Applicant never directed her legal representative to file an unfair dismissal claim on her behalf. At best, the Applicant could argue that her instructions were to file an unlawful termination application, however, this did not occur. Further, the Applicant did nothing for the first 15 days of the statutory timeframe to challenge her dismissal. This stagnation cannot be blamed on the Applicant's representatives.

• [29] I accept that the practices of Old Port Chambers could not be described as anything that resembles best practice. To contact the Applicant for the first time one day after the statutory timeframe, yet still proceed with the application, is grossly unprofessional.

• [30] Whilst the unprofessional conduct of Old Port Chambers was a significant factor in the Applicant's late application, it was not the only factor. Based on the obiter in Perry, the Applicant must share some of this responsibility.

• [31] I find that the Applicant's circumstances were not out of the ordinary course unusual, special or uncommon.

• [32] The application for an extension of time is refused.

• [33] The substantive application for an unfair dismissal remedy is dismissed.

[1] Section 394(2)(a) FW Act. Note that the 21 days for the lodgement does not include the date that the dismissal took effect by reason of operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6-where a period of time 'is expressed to begin after a specified day' the period 'does not include that day').

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

[4] Kyvelos v Champion Socks Pty ltd, Print T2421 at [14].

Printed by authority of the Commonwealth Government Printer