[2] The dispute was subject to conciliation on 27 November 2009. The dispute was not settled.

[3] It had however emerged during the conference that section 723 of the Act may inhibit the operation of section 773 in the circumstances at hand.

[4] On 7 December 2009, Turner Freeman Solicitors made a new application on behalf of Ms Trudgett pursuant to section 365 of the Act for Fair Work Australia to deal with a general protection dispute.

[5] As this application (matter C2009/11287) was made beyond 60 days after the termination took effect, it has been necessary to consider whether the time limit should be extended. The parties provided written submission in that regard and this decision deals with such extension.

[6] Section 366 of the Act provides as follows:

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

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

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

(e) fairness as between the person and other persons in a like position."

[7] Section 366(1)(a) provides that this type of application needs to be made within 60 days of the dismissal taking effect. The dismissal of the Applicant took effect on 21 September 2009. This application was received on 7 December 2009 and was therefore made some 77 days after the termination and 17 days beyond the statutory time limit.

[8] Section 366(2) allows the time limit to be extended if there are exceptional circumstances, taking account a series of consideration.

[9] What is meant by "exceptional circumstances" is not readily apparent and the parties addressed this. I will return to it later.

[10] As to the (or some of the) components of the exceptional circumstances, as envisaged in section 366(2), I propose to now deal with them.

[11] The explanation as to the reason for the delay given by the Applicant took the form of an affidavit sworn by Mr David Taylor, the Applicant's solicitor. In his affidavit, Mr Taylor said in part that:

(a) when he took his initial instructions he considered that the dismissal would best be dealt with as an unfair termination. An application pursuant to s.394 was made within the time limit applying (14 days);

(b) following the Respondent's response to the application, he concluded that there were jurisdictional impediments to an application going to unfair termination. That application was discontinued;

(c) an application going to unlawful termination was made on 13 November 2009, 52 days after termination and within the 60 days time limit (C2009/10963);

(d) during the conciliation conference held on 27 November 2009, the provision of section 723 was raised by Commissioner Raffaelli;

(e) up until that time he had been unaware that an unlawful termination claim could not be made if a general protections application was an available avenue. Prior to the Act coming into operation from 1 July 2009, the Applicant would have had access to unlawful termination relief. He had considered that this continued notwithstanding the general protection regime provided of course, that only one option was taken;

(f) the conference concluded with some possibility that the matter might settle. When it became clear that it would not settle, the current application was made.

[12] It was put in the light of the affidavit that the delay in filing was due to representative error.

[13] The Respondent pointed to the fact that this current application is now the third application made by the Applicant concerning her termination.

[14] The Respondent said that the 60 day limit should be strictly adhered to, unless there are exceptional circumstances. The explanation as to the error made by Mr Taylor, or the novelty of the legislation, do not amount to sufficient reasons that would amount to exceptional circumstances.

[15] It is clear in my view that the Applicant has been represented by her lawyers almost from the beginning. There is nothing to suggest that she has acted in any way other than on legal advice. This is a case where it would not be appropriate to somehow sheet home to the Applicant some contributory responsibility.

[16] Mr Taylor, or his firm, were in error by not appreciating the impact of section 723. On being advised of its operation, they took action to correct the matter and lodged the current application. They did so in reasonable time after 27 November 2009.

[17] While the "gravity" of the representative's error has not usually been relevant (all that is required, is that it was the representative's error, for whatever reason) I think that I should state, this error was at least not surprising given the wholesale change to industrial legislation, the creation of separate streams for general protection and unlawful terminations and finally, the unfortunate positioning of section 723 in a separate part of the Act from section 773.

[18] I find that the reason for the delay in filing this application was due to representational error and that the Applicant bears no responsibility for such delay.

Any Action taken by the Employee to Dispute the Termination

[19] On the basis of submissions I find that the Applicant took a range of steps to dispute her termination other than by lodging this application.

Prejudice to the Employer (Including Prejudice Caused by the Delay)

[20] While the Applicant put that no prejudice to the employer had occurred, the Respondent pointed to the small size of the business and the impact on it, if the matter is further litigated.

The provision of section 774(2)(c) provides that prejudice is not limited to prejudice caused by the delay. While I am unable to conclude that the lateness in filing is in itself prejudicial, I find that to allow an extension of time will have a prejudicial impact on the Respondent as it will need to allocate resources and costs to defend its decision.

[21] Not surprisingly, the parties were in disagreement as to this consideration. The absence of evidence and a comprehensively argued case made any assessment as to merit speculative. On the basis of the limited material before me, I find that the application can not be said to be without merit.

Fairness as Between the Person and Other Persons in a Like Position

[22] Given that the Applicant was the Respondent's sole employee, this does not seem to be a matter for consideration.

[23] Taking account of those considerations and findings it is necessary for me to be satisfied that exceptional circumstances exist in order to extend the 60 day time limit.

[24] The Respondent referred to several recent decisions of Fair Work Australia that have dealt with the question of exceptional circumstances, Parker v Department of Human Services, Southern Metropolitan Region (C2009/10426) per Whelan C and Johnson v Joy Manufacturing t/as Joy Mining Machinery (U2009/13707) per Lawler VP. These decisions, it was said, establish that the new Fair Work Act provisions as to extension of time should be approached as providing that the exercise of the discretion to extend time ought to be more constrained.

[25] Moreover, the representative error relied on in this case was said to be not an exceptional circumstance. Rather, it is not uncommon or unusual. As to the operation of the new Act, there is nothing exceptional in its operation, particularly when in circumstances where the Applicant was legally represented.

[26] The Applicant approached the analysis of the term "exceptional circumstance" by relying on the definition of "exceptional" as established by the English case of R v Kelly (Edward) [2000] 1 QB 198 where the Court said at 208 as follows:

"We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

[27] In my view, even if one accepts that the discretion should now be exercised in a more constrained manner as suggested by Whelan C, the facts at hand point to exceptional circumstance. There is firstly representative error and in circumstances where there is no contributory failure by the Applicant herself. Secondly, the legislative provisions are of recent application and the error made by the representative are not surprising. Finally, the fact that this is the third attempt made at promoting the Applicant's grievance is unusual and certainly underscores her commitment to have her matter pursued.

[28] I find, on the basis of my earlier findings as to those matters stipulated by section 366(2), and an overall consideration of all the circumstances, that there are exceptional circumstances as set out in [27] and I have consequently decided to allow a period up to the time that this application was lodged to be the period in which this application can be made.

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