[1] This decision will determine a jurisdictional objection lodged by Rivalea (Aust) Pty Ltd ('the respondent') to an unfair dismissal application, filed by the Australasian Meat Industry Employees' Union ('the Union') on behalf of its member, Mr Craig Prowse ('the applicant'), pursuant to s 394 of the Fair Work Act 2009 (Cth) ('the Act'). The objection is to the application being accepted by Fair Work Australia ('FWA') outside the statutory 14 day time limit set by s 394(2) of the Act. It is acknowledged by the parties that the application, filed on 9 September 2011, was filed one day late.

[2] The jurisdictional objection was listed for hearing in Wodonga on 29 November 2011 and, despite my encouragement, at the time, for the matter to be conciliated, the respondent maintained that it wished to have its jurisdictional objection dealt with as a preliminary matter. The respondent strongly asserted that the dismissal of the applicant for misconduct was justified, the reasons for his dismissal had been properly investigated and all relevant matters appropriately taken into account. The reasons for the applicant's dismissal are not strictly relevant to the determination by FWA as to whether the reason/s for the delay in filing the application constituted 'exceptional circumstances' as contemplated by s 394(3) of the Act. Nevertheless, I note that much of the material filed by the Union in response to the jurisdictional objection, being statements from the applicant and the Union delegate, was directed to the merits of the applicant's claim of unfair dismissal, in particular in respect to procedural unfairness contentions, the applicant's denial of the allegations, the seriousness of the applicant's conduct and his contrition (if the conduct had occurred unintentionally).

[3] Ms Deidre Williams, for the Union, conceded that the reason for the delay in filing the applicant's application rested entirely with her. She submitted that during the month of September 2011, she had been treated for a long term medical condition; a condition which she did not wish to be disclosed to the respondent. In this respect, Ms Williams had lodged a medical certificate with the Tribunal and which I marked 'confidential' during the proceedings. In addition, I note that in an email to FWA dated 9 September 2011, Ms Williams said:

"Unfortunately I have been ill and unable to conclude on this by close business Thursday and I hope this will not prejudice Daniel having an opportunity to have this matter heard".

[4] Ms Williams also submitted that as her Union was a small organisation, when an official is out of action it makes it difficult for another organiser to 'pick up the pieces'. She said that one of the Union's organisers had been very ill for a number of months and this had added pressure to her workload. Ms Williams said that the applicant should not be penalised for the fact that she had not been able to lodge his application within time.

[5] Ms Williams outlined the substantive basis of the applicant's unfair dismissal claim which she submitted clearly demonstrated the strong merits of his case. She said it would be unjust and unfair if he was not able to contest the respondent's decision to dismiss him. She claimed that the applicant was never given an opportunity to properly explain his conduct and that the details of other witnesses and the evidence they gave to the respondent were not provided to the applicant or his Union delegate, Mr Ben Ray. Mr Ray had also proposed other witnesses be interviewed, but this request had been denied. Ms Williams also claimed a conflict of interest between the applicant's floor supervisor and the Human Resources Manager (his father-in-law). Ms Williams added that the applicant had not received the appropriate structured training and despite being willing to apologise for his actions, the respondent had claimed that he had not been remorseful.

[6] Ms Williams noted that the applicant had a young family and had not been able to find alternative employment since the date of his dismissal.

[7] Ms Karen Desborough, Group Manager - Employee Relations, referred to the respondent's filed submission in which she highlighted that, not only had the Union not filed the application within time, but it had also failed on 3 separate occasions to comply with FWA's directions as to the filing and service of submissions in this matter. Ms Desborough observed that, in any event, the Union's filed material was irrelevant to the 'out of time' issue. Ms Desborough said that the Union had offered no reason/s why the application should be accepted out of time; let alone demonstrated 'exceptional circumstances' why FWA should do so. Nevertheless, in questioning from the Bench, Ms Desborough accepted that the respondent would not suffer any prejudice if the application was accepted 'out of time'.

[8] In further submissions, Ms Desborough said that on the day of the applicant's dismissal, Ms Williams was actually on the phone to the delegates and the applicant for a total of 1 hour and 50 minutes. Therefore, she found it difficult to accept that Ms Williams did not have time to lodge the Form F2 within the time period prescribed by the Act, and given that it was not a particularly complicated form or lodgement process. She believed Ms Williams would have known what was required as she would have previously been involved in numerous unfair dismissal cases. Ms Desborough rejected Ms Williams' claims of the respondent's denial of natural justice and observed that the disciplinary process on the day of dismissal lasted for around 5 hours, and involved the Union delegates and Ms Williams.

[9] In reply, Ms Williams denied being involved in the disciplinary process. She claimed that she had not directly participated and she had been merely advising Mr Ray in a number of phone calls of what he should be asking the respondent about access to witnesses and statements.

[10] Subsection 2 of s 394 of the Act is as follows:

(a) within 14 days after the dismissal took effect; or

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

[11] When considering whether to extend time for the filing of an unfair dismissal application under s 394(2)(b), FWA is required to take into account the following matters under s 394(3) of the Act:

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.

[12] A considerable body of authority has now been developed within FWA as to the meaning of 'exceptional circumstances' in the statutory context of s 394(3) of the Act. A Full Bench of FWA in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 summarised the meaning of the expression in the following way:

'[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'.

See also Cheval Properties Pty Ltd t/a Penrith Hotel Motel v Smithers [2010] FWAFB 7251.

[13] In my opinion, the Union has properly conceded that it bears the complete responsibility for failing to lodge the applicant's application for relief from unfair dismissal, within the prescribed time frame. This concession plainly constitutes the notion of 'representative error' for which the applicant cannot be held responsible. There is no doubt that 'representative error' may constitute 'exceptional circumstances' for the purposes of s 394(3) of the Act. In this regard, I refer to what a Full Bench said in Davidson v Aboriginal & Islander Child Care Agency Q0784, 12 May 1998:

'(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 carryout 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 accepted'.

See also Clark v Ringwood Private Hospital (1997) 74 IR 413. I also note and respectfully adopt the comments of Lawler VP in McConnell v A & PM Fornataro t/a Tony's Plumbing Service [2011] FWAFB 466, where His Honour said at para 66:

'It needs to be born [sic] in mind that, on the material before us, it is more likely than not that Mr McConnell was personally blameless. He commenced his s.394 within time in good faith and pursued it in good faith. His decision to discontinue his s.394 application and bring a s.365 application was likely done by him in good faith on the basis of expert advice. Lay persons should not be regarded as acting in a blameworthy fashion when they act on the advice of an expert that they retain for the purpose of giving expert advice'.

[14] In my view, it would be a miscarriage of justice for the applicant to forfeit his opportunity to challenge his alleged unfair dismissal in circumstances where his Union representative/s failed to lodge his s 394 application within time. To use the words of Lawler VP in supra above, the applicant was 'personally blameless'. Plainly, the application of the principles of 'representative error' must apply irrespective of whether the defaulting representative is a legal practitioner or a Union official.

[15] That said, I am further satisfied that Ms Williams has established that a reasonable excuse for the delay existed in that she had a medical condition, which I have no reason to doubt and which contributed to her inability to lodge the applicant's unfair dismissal claim in time. This excuse was not some afterthought to cover the Union's tardiness. Ms Williams was open and upfront when she lodged the application and emailed FWA to offer an explanation for the day's delay (see para 4). This observation fortifies my conclusion that 'exceptional circumstances' have been shown to exist in this case which would justify the exercise of my discretion to extend the time for filing the application by one day. However, a number of other matters are also relevant in the statutory context of s 394 (3) of the Act and must be taken into account.

[16] Firstly, from the material filed, I am satisfied that there is a prima facie case to be tried; particularly, it would seem, in respect to claims of procedural unfairness. In other words, I am not convinced that the applicant's case is so manifestly untenable or hopeless as to have no prospects of success (s 394(3)(e)). Secondly, Ms Desborough properly conceded that the respondent would suffer no prejudice should the time be extended for the application to be filed (s 394(3)(d)). Thirdly, the applicant instructed his Union to contest his dismissal very soon after it had occurred (s 394(3)(b)(c)). He was entitled to expect that the formal application would be lodged within the prescribed time period. Subsection (f) of s 394 would not appear to be relevant to this application.

[17] For the aforementioned reasons, I am satisfied that the applicant has established 'exceptional circumstances' as contemplated by s 394(3) of the Act such as to warrant an extension of time being granted to allow for the lodgement of his application, outside the 14 day time limit. An order to that effect will be issued contemporaneously with this decision.

[18] The substantive application will be remitted to the Unfair Dismissal Unit of FWA for reallocation to a Fair Work Conciliator.

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