Anthony Levey v Teekay Shipping (Australia) Pty Ltd

[2019] FWC 3188

[2019] FWC 3188

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Levey
v
Teekay Shipping (Australia) Pty Ltd
(U2019/2348)

DEPUTY PRESIDENT DEAN SYDNEY, 14 MAY 2019

Application for an unfair dismissal remedy – extension of time – extension granted

[1] This decision concerns an application made pursuant to s.394 of the Fair Work Act 2009 by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) on behalf of its member, Mr Anthony Levey, with respect to an alleged unfair dismissal by Teekay Shipping (Australia) Pty Ltd (Teekay).

[2] The application was lodged by the CFMMEU on 5 March 2019 and was not made within the 21 day period prescribed by the Act. The CFMMEU says that the application was late because of representative error.

[3] The Commission has the discretion to allow a further period for an application to be made under s.394(3) of the Act. Mr Adam Jacka, National Legal Officer of the CFMMEU, filed a statutory declaration in support of the granting of an extension of time. Teekay indicated that it did not wish to make any submission in relation to whether I should extend time.

The legislation

[4] Section 394(3) of the Act 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:

(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.

[5] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on Mr Haynes.

[6] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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.”

[7] I now deal with each of the provisions of s.394(3) of the Act.

Reason for the delay

[8] Mr Jacka stated that he was responsible for drafting and filing this application. This application was one of 33 applications relating to what may be described as a redundancy situation arising with Teekay. Mr Jacka explained that all of the 33 applications were filed in PDF format. Prior to filing the applications, he prepared and drafted each of the applications in Word. When saving this and one other of the 33 applications from Word to PDF, he inadvertently saved them incorrectly as duplicate applications of two other applications. The incorrect PDF versions were filed on 28 February, within time, along with the other applications. Mr Jacka said he was notified of the error by the Commission on 4 March 2019, at which time he promptly filed amended applications.

[9] 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 Ltd²:

“[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.”

[10] 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.”

[11] Having considered the material before me and adopting the above approach, I am satisfied in this case that the representative error is an acceptable explanation for the delay. I therefore find this factor weighs in favour of a finding that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[12] There is no dispute that Mr Levey was advised of his dismissal by letter dated 6 February 2019. I find that this weighs against the granting of an extension of time.

Any action taken by the person to dispute the dismissal

[13] There had been ongoing discussions between the CFMMEU and Teekay prior to the termination of Mr Levey’s employment. It is clear in my view that Teekay was aware that the application would be forthcoming.

[14] I find this weighs in favour of a finding that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

[15] I am not persuaded that granting an extension of time would result in a prejudice to Teekay. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I find this to be a neutral consideration.

The merits of the application

[16] For the purpose of determining whether to grant an extension of time, the Commission ‘should not embark on a detailed consideration of the substantive case.’³

[17] On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[18] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 4 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’5

[19] No submissions were made specifically in relation to this criterion, however I note this is one of 33 applications arising from the same set of circumstances. I find it to be a neutral consideration.

Conclusion

[20] Having considered all of the matters to which my attention is directed by the Act, I am satisfied and find that there are exceptional circumstances which would warrant granting an exception to the statutory time limit.

[21] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR708115>

 1   [2011] FWAFB 975.

² [2011] FWAFB 2728.

3 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 4   [2015] FWC 8885.

 5 Ibid at [29].