Amy Turner v CFC Consolidated Pty Ltd atf CFC Employment Trust

[2016] FWC 2167

[2016] FWC 2167

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amy Turner
v
CFC Consolidated Pty Ltd atf CFC Employment Trust
(U2016/3900)

DEPUTY PRESIDENT BINET PERTH, 6 APRIL 2016

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] Ms Amy Turner (Ms Turner) has made an application (Application) pursuant to subsection 394(1) of the Fair Work Act 2009 (FW Act) for a remedy in respect of her dismissal by CFC Consolidated Pty Ltd atf CFC Employment Trust (CFC).

[2] On 11 February 2016 CFC indicated its objection to the Fair Work Commission (Commission) exercising its jurisdiction to deal with the Application because it was lodged more than the 21 days after the dismissal took effect. Accordingly the jurisdictional objection was allocated to me for hearing and determination.

[3] An outline of argument and a statement of evidence from Ms Turner and Ms Lyndal Denny (Ms Denny) were filed on behalf of Ms Turner. Ms Denny is a truck driver and former colleague of Ms Turner. In summary Ms Turner claimed that the delay in the lodgement of her application was a result of representative error. Namely that her union representative, Mr Mick Connolly of the Transport Workers Union (TWU), undertook to lodge her application but failed to do so. She says that as soon as she became aware that the Application had not been filed in time she took it upon herself to submit the Application as soon as possible.

[4] CFC filed a Form F3 – Employer Response to Unfair Dismissal Application, a Form F4 Objection to Application for Unfair Dismissal Remedy and an outline of submissions. In summary CFC submitted that Ms Turner had failed to provide sufficient reasons and supporting evidence to demonstrate that exceptional circumstances existed, which would justify an extension of the lodgement time.

The Jurisdictional Hearing

[5] A jurisdictional hearing was conducted by telephone on 9 March 2016. At the hearing Ms Turner was represented by Mr Joel Clarke of the Transport Workers Union (Mr Clarke) and CFC were represented by Mr Ryan Martin of CCI(WA) (Mr Ryan). By virtue of subsection 596(4) neither Mr Clarke or Mr Ryan required leave to appear.

[6] In addition to the witness statements that had been filed in the matter both Ms Turner and Ms Denny gave evidence. Both were cross examined by Mr Martin. CFC did not file any witness statements or call any witnesses.

Relevant Statutory Provisions

[7] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

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

(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:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

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

[8] Pursuant to subsection 394(3) the Commission may allow a further period to lodge an application provided there are "exceptional circumstances" taking into account the five criteria listed in subsection 394(3). The principles to be applied are well established and set out in a decision of a Full Bench in Nulty v Blue Star Group  1as follows:

“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.”

Facts

[9] The following facts were agreed or uncontested:

a. Ms Turner commenced employment with CFC on 6 January 2014 as a freight officer. Her duties included unloading, sorting and delivering freight in the Karratha / Dampier region.

b. Ms Turner swore in front of a customer on 7 December 2015. The customer reported her behaviour to CFC.

c. Ms Turner was summonsed to a disciplinary meeting on 11 December 2015 to which she was accompanied by Mr Connolly. At that meeting she was told her employment with CFC was terminated.

d. Ms Turner was given written notice of the termination of her employment by letter dated 15 December 2015. The letter confirmed that her employment had been terminated effective from 11 December 2015 but that she would be paid two weeks in lieu of notice.

[10] Ms Turner says that Mr Connolly advised her that he would lodge an unfair dismissal claim on her behalf as soon as she notified him that she had received her final pay.

[11] Ms Turner received her final payment on Christmas Eve. She says that she sent a text message to Mr Connolly the same day informing him that she had received the payment.

[12] When Mr Connolly did not respond to her text Ms Turner says that she rang his mobile telephone on 30 December 2015 and again on 4 January 2016. Ms Turner says on both occasions she left a voicemail message for him asking him to call her so she could confirm the progress of her application.

[13] The TWU office was closed over the Christmas break and reopened on Tuesday 5 January 2016. Ms Turner says that she contacted the TWU office on 5 January 2016 and was informed that the period for the lodgement of her claim had expired. She says that she then decided to prepare and lodge her application without the assistance of the TWU.

[14] Ms Denny says that on Wednesday 6 January 2016 Ms Turner contacted her and explained that she had just discovered that the TWU had failed to lodge her unfair dismissal claim within the required time frame despite Ms Turner attempting on a number of occasions to follow up with the delegate who had been assisting her.

[15] Ms Denny gave evidence that she then assisted Ms Turner to prepare and lodge her application. Both Ms Denny and Ms Turner gave evidence that they had difficulty electronically lodging Ms Turner’s claim because they did not have the correct version of the necessary software. Ms Denny explained after numerous failed attempts at electronically filing the application she called the Commission to obtain an email address to which the Application could be forwarded.

[16] Ms Denny says that she lodged Ms Turner’s application by email on Monday 11 January 2016.

[17] During the period between 6 January 2016 and 11 January 2016, when Ms Denny says she first attempted to lodge the Application, Ms Denny says she and Ms Turner were hampered in their preparation of the Application by the intermittent mobile telephone coverage in the remote location in which Ms Turner and Ms Denny are resident.

[18] Ms Turner says that when she did not hear from the Commission regarding payment of the application fee she contacted the Commission on 18 January 2016 and was told that the Registry had no record of Ms Denny’s 11 January 2016 email attaching Ms Turner’s application. Ms Denny says that she then forwarded her original email along with the Application to the Commission on Tuesday 19 January 2016.

[19] Mr Clarke informed the Commission that Mr Connolly has since left the TWU and that the TWU’s disappointment in his handling of Ms Turner’s case was a key factor in the departure of Mr Connolly from the TWU. Mr Clarke provided this information by way of explanation as to why Mr Connolly did not provide a witness statement and was not called as a witness at the hearing.

Consideration

[20] The 21 day period for lodgment is calculated on the basis that the first day of the period is the day after the date that the dismissal took effect. 2 If the final day of the 21 day period falls on a weekend or a national public holiday (where the Commission is closed) the timeframe will be extended to the next business day.3

[21] Ms Turner’s dismissal took effect on 11 December 2015. The first business day, twenty one days from the day after Ms Turner’s dismissal took effect was Monday 4 January 2016. Ms Turner claims to have attempted to lodge her application on 11 January 2016. The Application was eventually effectively lodged on 19 January 2016. The Application was therefore at best 7 days out of time and at worst 15 days out of time.

Paragraph 394(3)(a) - The reason for the delay

[22] Mr Clarke submits that the reason why Ms Turner did not file on time was representational error, more specifically, that Mr Connolly failed to lodge her claim as agreed.

[23] The late lodgement of an application due to representative error may be grounds for an extension of time. 4

[24] Mr Ryan asserted that there was no evidence that Ms Turner had provided clear instruction to Mr Connolly to submit the application on her behalf and in the absence of such evidence on the authority of Maddern v Woolworths Supermarket 5her application for an extension of time must fail.

[25] Ms Turner gave detailed evidence of providing clear instruction to Mr Connolly to lodge her application. She also gave evidence that she endeavoured to contact him on 24 December 2015, 30 December 2015 and 4 January 2016. Given the public holidays on the intervening dates, on which normal courtesies would make contacting him inappropriate, I find that the number of calls demonstrates a genuine effort to contact him. Ms Turner’s subsequent conduct, whereby she contacted the TWU as soon as their office opened after the Christmas Break to check the progress of her claim, because she had been unable to get in contact with Mr Connolly, was consistent with her evidence that she had intended that Mr Connolly lodge a claim on her behalf. I found Ms Turner to be a credible witness. Mr Clarke provided a reasonable explanation for the absence of direct evidence from Mr Connolly by way of witness statement and/or attendance at the hearing.

[26] In Clark v Ringwood Private Hospital 6the Full Bench stated that:

“The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable 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 and 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.”

[27] I am satisfied that Ms Turner did provide clear instruction to Mr Connolly to lodge her claim and that the reason why her application was not lodged in time was representational error.

[28] Where representational error is found to exist it is necessary to determine to what extent the delay is properly appointed to the representative and the extent to which any of the delay is occasioned by the conduct of the applicant. 7

[29] I have found that the delay in lodgement up to Tuesday 5 January 2016, when Ms Turner was informed by TWU staff that her claim had not been lodged as she had anticipated, was the result of the error of her representative Mr Connolly.

[30] Both Ms Turner and Ms Denny gave evidence that they prepared Ms Turner’s application as quickly as they could thereafter and then sought to lodge the Application. Both Ms Denny and Ms Turner are delivery truck drivers. They prepared Ms Turner’s application without the assistance of TWU or a lawyer. Ms Turner explained, when cross examined by Mr Ryan as to why she did not get legal assistance to assist her to prepare her claim quicker, that as she had limited financial means and had been recently dismissed she could not afford legal advice.

[31] Ms Turner and Ms Denny also explained that the preparation of the application was delayed by the difficulty in communication they experienced because of the intermittent nature of the mobile telephone coverage in the areas they were located during the period in which they were preparing the Application.

[32] Having prepared the Application Ms Turner explained that she had difficulty electronically lodging the Application because she did not have compatible software and that Ms Denny experienced similar difficulties. Ms Denny gave evidence that she therefore contacted the Commission and requested an email address to which she could forward the Application. Mr Ryan sought to submit that the delay in lodgement was unreasonable because Ms Denny could have lodged the Application earlier by contacting a family member in Perth to arrange physical lodgement of the Application. Ms Denny explained that she was not from Western Australia and did not have family or friends in Perth who could assist with lodgement of Ms Turner’s application.

[33] Ms Turner’s call to the Registry on 18 January 2016 is consistent with her evidence that she genuinely believed her application had been effectively lodged.

[34] Mr Ryan cross-examined Ms Denny and Ms Turner with respect to their evidence in relation to the delay in lodgement. Despite reasonably vigorous cross examination and endeavours to bring the credibility of Ms Denny and Ms Turner into question I found both Ms Denny and Ms Turner to be credible witnesses. I therefore accept their evidence that they prepared Ms Turner’s application and genuinely believed it had been effectively lodged on 11 January 2016.

[35] When account is taken of all of the evidence, I believe in the circumstances that a delay between Tuesday 5 January 2016 when Ms Turner discovered her application had not been lodged, until Tuesday 19 January 2016, when the Application was effectively lodged was reasonable.

[36] Noting the representative error and the explained period of delay following the representative error this factor weighs in favour of granting Ms Turner an extension of time.

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

[37] It is uncontested that Ms Turner first became aware of her dismissal on 11 December 2015. Although the termination of the employment occurred on 11 December 2015, Ms Turner was not formally advised of the terms on which the dismissal occurred until she received a letter dated 18 December 2015. Nevertheless this factor weighs against granting Ms Turner an extension of time.

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

[38] Ms Turner says that she indicated to CFC during the disciplinary meeting held on 11 December 2015 that she contested her dismissal. Her evidence is that:

a. she contacted Mr Connolly as soon as she received her final pay (which she understood would be the trigger for him to lodge her application);

b. subsequently endeavoured to contact him on at least two occasions to confirm that her application challenging the termination of her employment had in fact been lodged; and

c. unable to get a response from Mr Connolly contacted the TWU when the TWU office reopened after the Christmas break.

This evidences a consistent intention to dispute the dismissal and therefore makes it likely that she and/or Mr Connolly did indicate at the disciplinary meeting that the dismissal was contested. CFC did not call any witnesses at the hearing, in particular, they did not call any witnesses to the disciplinary meeting. There was therefore no evidence before the Commission in support of CFC’s submission, that it was not clear at the disciplinary meeting that Ms Turner disputed the dismissal.

[39] There was no evidence tendered that subsequent to the disciplinary meeting Ms Turner disputed her dismissal directly with her employer other than by the filing of her Application. Given Ms Turner’s assertion that it was made clear at the disciplinary meeting that she was contesting the dismissal, that she was under the impression that Mr Connolly was handling her matter on her behalf, and that she believed her application had been lodged, it is not surprising that she did not separately directly contest the dismissal with her employer following the disciplinary meeting.

[40] The relevance of this criteria to the granting of an extension of time is that action taken to dispute the dismissal puts the employer on notice that an application could be made. In these circumstances the prejudice of delay in lodgement may be somewhat reduced than if a claim is made out of time out of the blue and the employer has ‘moved on’ from the dismissal, for example by replacing the employee or not retaining relevant evidence.

[41] On balance I believe that CFC ought reasonably have been on notice that Ms Turner was likely to challenge her dismissal, I therefore find that this factor weighs in favour of the granting of an extension of time.

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

[42] CFC submitted that the prejudice which it suffered was the “… cost and time involved in the prolonged proceedings”. Given the delay was between 7 and 15 days I am satisfied that there is no prejudice to CFC caused by the late filing of the Application over and above the unusual prejudice that may accompany any grant of extension of time for lodgement.

[43] I have therefore treated prejudice to CFC as a neutral factor in considering whether to grant the extension of time.

Paragraph 394(3)(e) - The merits of the application

[44] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission "should not embark on a detailed consideration of the substantive case" 8 for the purpose of determining whether to grant an extension of time to an applicant to make their Application.

[45] In the matter of Kornicki v Telstra-Network Technology Group 9 the Commission considered the principles applicable to the extension of time discretion under subsection 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench 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."

[46] To require an applicant to establish more than that the substantive application was not without merit would, as noted by the Full Bench in Kyvelos v Champion Socks Pty Ltd 10,:

“… serve as an encouragement to other applicants for late acceptance pursuant to subsection 170CE(8) to put the whole of their evidentiary case and seek to cross examine the respondent’s witnesses to reduce the possibility of an adverse finding on the merits. This would lead to unjustifiable delay and expense.”

[47] I adopt this reasoning in relation to my consideration of the merits of the Application.

[48] CFC say that Ms Turner’s employment was terminated following an investigation into the incident which occurred on 7 December 2015 and followed a lengthy performance management process. Ms Turner contests the accuracy of the facts relied on in the investigation and claims that she had been subject to bullying rather than reasonable performance management. Given that a factual contest existed between the parties as to grounds which formed the reason for dismissal, without hearing the substantive application, I am unable to find that the substantive application was without merit. As I have found that Ms Turner’s case is not without merit or lacking in any substance, this factor weighs in favour of granting Ms Turner a further period to make her application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[49] There was no evidence led of a person or persons in a comparative position to that of Ms Turner. The issue of fairness as between the applicant and other persons in a similar position is therefore not a relevant consideration in this matter and is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[50] For the reasons set out above, on balance and in the exercise of my discretion, I am satisfied that there are exceptional circumstances warranting Ms Turner being granted an extension of time to lodge her application.

[51] An Order [PR578774] to this effect will be issued. The matter will now be referred to the Unfair Dismissals Case Management Team for further programming.

DEPUTY PRESIDENT

Appearances:

Mr Clark of the Transport Workers Union for the Applicant

Mr Ryan Martin of Chamber of Commerce and Industry for the Respondent

Hearing details:

2016

Perth:

March, 9

Final written submissions:

Applicant, 11 March 2016

 1   Nulty v Blue Star Group (2011) 203 IR 1 at [13]

 2   Acts Interpretation Act 1901 (Cth) s.36(1) (Item 6)

 3   Ibid s.36(2); See Hemi v BMD Constructions Pty Ltd [2013] FWC 3593

 4   Clark v Ringwood Private Hospital (1997) 74 IR 413 at 418

 5   Maddern v Woolworths Supermarket [2014] FWC 4338

 6   Clark v Ringwood Private Hospital (1997) 74 IR 413 at 419

 7   Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 351

 8   Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [14]

 9   Kornicki v Telstra Network Technology Group [Print 3168, 22 July 1997] at page 8

 10   Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [15].

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