Alexander Short v Immutable Pty Ltd
[2022] FWC 2829
•1 NOVEMBER 2022
| [2022] FWC 2829 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Alexander Short
v
Immutable Pty Ltd
(U2022/8463)
| DEPUTY PRESIDENT DEAN | CANBERRA, 1 NOVEMBER 2022 |
Application for an unfair dismissal remedy – extension of time.
This decision concerns an application by Mr Alexander Short (Mr Short or the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009. Mr Short was employed with Immutable Pty Ltd (Immutable or the Respondent) in the role of Senior Unity Developer until his employment was terminated with effect from 27 July 2022.
Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3).
Mr Short’s application was lodged on 18 August 2022 at 12:01 am, one minute outside the statutory time limit. Mr Short seeks an extension to the period of time in which his application can be made.
The matter was listed for hearing by telephone on 23 October 2022. At the hearing Ms Ablett of Association of Professional Engineers, Scientists and Managers Australia T/A Professionals Australia (Union) appeared for Mr Short, and Mr Bunting appeared for Immutable.
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.
Reason for the delay
The Act does not specify what reason for the delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[3]
The delay required to be considered is the period beyond the prescribed 21 day time period for lodging an application. While the period does not include the period from the date of the dismissal to the end of the 21 day period, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.[4]
The Union submitted that the reason for the delay was representative error and relied on the evidence of Ms Julie Lee, a Senior Legal & Industrial Officer of the Union, whose evidence included the following:
a. She spoke to a number of employees who were to be terminated by the Respondent at around the same time as the Applicant, on either an individual basis or in meetings.
b. She advised the Applicant of the last day on which his unfair dismissal application could be made and explained that she could prepare the application ‘relatively swiftly’. She further advised him that he should not feel pressured to make a final decision about whether to proceed with their application until shortly before the expiry of his deadline.
c. She said she gave this advice because, “given the relative frequency with which claims are required to be prepared, drafting an unfair dismissal application is ordinarily a straightforward and comparatively quick process, particularly where members have already provided documents and instructions.”
d. The Applicant provided the Union with documents and information on 26, 27 and 28 July 2022.
e. In the week beginning 15 August 2022 she exchanged emails, text messages and phone calls with five Union members including the Applicant. The Applicant and one other Union member advised her they wished to proceed with their unfair dismissal application.
f. Between 16 and 17 August, Ms Lee quit smoking, and on 17 and 18 August she was physically unwell with symptoms consistent with smoking withdrawal.
g. Ms Lee exchanged text messages and spoke to the Applicant on 17 August and confirmed his termination date with him at around 5:30pm that day.
h. Ms Lee said: “I cannot adequately account for the long period between approximately 6:00pm and 11:45pm during which I drafted the Application. I confirmed a number of details with the Applicant at around 9:00pm. Ultimately, in order to lodge the Application within time whilst ensuring it was of an acceptable standard, I created an extremely truncated version of the document, and lodged this abridged version in the Fair Work Commission”.
i. She said she was looking at the time on her computer while drafting the email and thought she had sent it within time, however the following day she realised the email had left her outbox at 12:01am on 18 August 2022.
The Applicant did not give evidence in the hearing.
The Respondent contended that the application that was filed was ‘wholly deficient’ and was merely a placeholder application, as it was devoid of any substance or information. It was not until some time later that the Union filed further details in relation to the claim.
In respect of the late filing of the application, the Respondent contended that there were no exceptional circumstances that would warrant an extension of time. It argued it was evident on the Applicant’s own submissions that the Applicant was advised of the time limit by Ms Lee, and that Ms Lee’s evidence made it clear the Applicant did not advise her he wished to make an application until two days before the deadline. The Respondent contended this was not a case in which the delay could be attributed solely to representative error and it was evident the Applicant was not blameless and in fact contributed to the delay.
The Commission’s approach to representative error as an explanation to the late lodgement was summarised by the Full Bench in Robinson v Interstate Transport Pty Ltd (Robinson)[5]:
“[24]The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.
[25]The approach in Clark’s Case was summarised in Davidson’s Case 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 accepted.’” (citations omitted)
The Full Bench went on to say:
“[30]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.
[31]As noted by a Full Bench in D La Rosa v Motor One Group Pty Ltd, in the context of s.170CE of the WR Act:
‘As is evident from Clarke, little might be required to satisfy the Commission that the applicant was blameless in the delay. In the context of a relatively short delay, it may simply be a matter of establishing that the applicant gave instructions to lodge [in this case] a Notice of Election and thereafter left matters in the handsof his or her representative.’” (citations omitted)
Further, in Qantas Ground Services Pty Ltd v Rogers (Qantas)[6], a Full Bench confirmed that:
a. Section 394(a) requires consideration of whether the applicant has an acceptable explanation for the delay. It is not necessary for the applicant’s representative to provide an acceptable explanation for their own delay in acting in accordance with their instructions to file an application within the 21 day time period. In this regard, the Full Bench noted that: “it is readily apparent from the evidence that [the representative] did not have an acceptable explanation for his own inaction, but that is in our view a matter which supports rather than negates the existence of exceptional circumstances”.[7]
b. It is not necessary for an applicant to demonstrate that he was ‘blameless’ for the delay beyond establishing the fact that he gave appropriate instructions to a legal practitioner in a timely fashion.[8]
Having considered the evidence before me, I am satisfied that the Applicant has an acceptable explanation of the reason for the delay in lodging the application.
The evidence of Ms Lee is clear that she advised the Applicant he should effectively take the whole of the 21 day period to make a decision about whether he wished to make an application, because the making of an application was a comparatively quick process. It should be obvious that leaving the lodging of an application literally to the last day was a ‘high risk strategy’ and I am satisfied this was an error on the part of the Applicant’s representative. The Applicant was entitled to rely on the advice of a lawyer from the Union, who is experienced in making applications in the Commission. I expect such advice is not given by the Union to its members going forward.
The Commission accepted the application as filed by the Union, and so the adequacy or otherwise of the application is not a relevant consideration in this context.
Overall, this weighs in favour of a conclusion that there are exceptional circumstances, however it is only one of a number of factors to be considered in deciding whether to extend time.
Whether the person first became aware of the dismissal after it had taken effect
I am satisfied on the evidence that Mr Short had the full 21 day period to lodge his unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
The Applicant took action to dispute the dismissal by seeking legal advice from the Union and instructing that an application for an unfair dismissal remedy by made within the 21 day time period. In the circumstances, this weighs in favour of a finding of exceptional circumstances[9].
Prejudice to the employer
I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file the application, the Commission ‘should not embark on a detailed consideration of the substantive case.
Based on the evidence before the Commission, it is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
The Union in its submissions indicated it was representing another member whose employment was terminated by the Respondent in the same circumstances as the Applicant, however that application was made within time. The Union argued that fairness as between the Applicant and the Union’s other member weighs in favour of allowing an extension of time, given the short length of the delay.
I consider this weighs in favour of a finding of exceptional circumstances.
Conclusion
It is clear that representative error is not in and of itself sufficient to justify a finding of exceptional circumstances. All of the matters in s 394(3) are required to be considered.
Having considered all of the matters to which my attention is directed by the Act and for the reasons set out earlier, I am satisfied that on balance there are exceptional circumstances which would warrant my granting an extension of time.
Accordingly, an extension of time is granted. An order reflecting this decision will be issued.
DEPUTY PRESIDENT
Appearances:
L Ablett for Alexander Short.
E Bunting for Immutable Pty Ltd.
Hearing details:
2022.
By telephone:
October 24.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[4] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2015] FWC 7659.
[5] [2011] FWAFB 2728.
[6] [2019] FWCFB 2759.
[7] Ibid at [16]
[8] Ibid at [17].
[9] See Cowen v Renascent Regional Pty Ltd - [2021] FWCFB 2606 at [31].
Printed by authority of the Commonwealth Government Printer
<PR747075>
0
0