Avneet Beniwal v Greek Orthodox Community of South Australia Incorporated
[2021] FWC 4657
•3 AUGUST 2021
| [2021] FWC 4657 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Avneet Beniwal and Others
v
Greek Orthodox Community of South Australia Incorporated
(U2021/5298) (U2021/5299) (U2021/5301) (U2021/5302) (U2021/5303) (U2021/5304) (U2021/5306) (U2021/5307) (U2021/5308) (U2021/5309)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 3 AUGUST 2021 |
Applications for an unfair dismissal remedy – redundancies of nursing employees - extensions of time – representative error - whether exceptional circumstances – discretionary considerations – extensions granted
[1] On 17 June 2021 the Australian Nursing and Midwifery Federation (South Australian Branch) (ANMF or the representative union) lodged unfair dismissal applications under section 394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of employment of the following ten persons (the applicant employees or the applicants):
• Avneet Beniwal;
• Gupreet Sangha;
• Jo-an Watts;
• Li Jie Tang;
• Frances Demura;
• Mandeep Seharn;
• Vesna Raguz;
• Pan Ngan Tan;
• Stephanie Hartshorne; and
• Vergie Cranfield.
[2] The applicant employees were dismissed from employment by way of alleged redundancy by the Greek Orthodox Community of South Australia Incorporated from the Ridleyton Greek Home for the Aged (Ridleyton Greek Home for the Aged, the employer or the respondent). All are members of the ANMF.
[3] The dismissals took effect on 26 May 2021.
[4] The applications were made twenty-two days after the dismissals took effect, being one day beyond the statutory time limit. Each applicant employee says that late lodgement was a result of representative error by the ANMF.
[5] This decision deals with whether extensions of time should be granted to enable further proceedings on the applications.
[6] I issued directions on 30 June 2021 and further directions on 16 July 2021.
[7] By consent (30 June), I directed that, on the extension of time issue, the ten applications be dealt with concurrently.
[8] By consent (30 June), I granted permission for the employer to be represented by a lawyer or paid agent on each of the applications.
[9] I listed the applications for hearing on 16 July 2021 and directed that materials be filed in advance (by the applicants on 7 July and by the respondent by 14 July).
[10] Materials were filed by these dates. The applicants’ materials included a statement of an Industrial Officer of the ANMF (Ms Walsh). The respondent’s materials included a statement of its Director of Clinical Services (Ms Valentic).
[11] On 13 July 2021, for reasons expressed on transcript, I made an order that the ANMF produce and make available for inspection original electronic records of emails attached to Ms Walsh’s witness statement.
[12] On the evening immediately prior to the extension of time hearing (15 July) the ANMF sent the Commission and the respondent eight further statements on which it relied – being a second statement of Ms Walsh; a statement of an ANMF Team Leader (Ms Patient); and statements of six of the applicants. Two of these statements were filed unsigned. Leave had not been provided for the filing of further materials.
[13] At the hearing on 16 July 2021 the ANMF sought leave to admit the further statements on the ground they were in reply to the employer’s materials. The respondent opposed admission. For reasons expressed on transcript, I granted leave for the filing of the further statements. I adjourned the extension of time hearing to 30 July 2021. I issued further directions, including leave to file certain further materials.
[14] Further materials were filed on behalf of the applicants, being an amended outline of submissions, signed copies of the two unsigned applicant statements and closing submissions. No further materials were filed by the respondent.
[15] The parties subsequently agreed to the extension of time matter being determined on the papers.
Evidence
[16] Sworn statements from six of the ten applicants are in evidence 1. None were required for examination.
[17] Two sworn statements of Ms Walsh are before me 2 as is a sworn statement of Ms Patient3.
[18] Neither Ms Walsh nor Ms Patient were required for examination.
[19] In assessing the evidence, I take into account that the witness evidence was not tested by cross examination. In some respects this impacts weight to be given to certain aspects, particularly hearsay elements. Nonetheless, the statements constitute unchallenged evidence and are a proper basis for findings of fact particularly where the narrative is consistent with the contemporaneous documentary record. Given the centrality of Ms Walsh’s evidence to the determination of this matter, I particularly consider her evidence to be plausible and largely an unembellished acknowledgement of error on her part and how that error occurred.
Facts
Background
[20] Ridleyton Greek Home for the Aged is an aged-care facility in inner north-west Adelaide. It is operated by the Greek Orthodox Community of South Australia Incorporated.
[21] Each of the applicant employees were employed in part-time nursing positions (as registered nurses or enrolled nurses).
[22] The applicant employees had varied lengths of service (ranging from one year to sixteen years). All were notified on 26 May 2021 that their positions were redundant, effective that day.
[23] For current purposes, and without being exhaustive, the following is a summary of relevant events.
Dealings between the employer and the applicants
[24] The redundancies were not without notice.
[25] On 12 April 2021 the employer advised nursing staff of a proposed workforce and rostering restructure. It invited responses by 16 April 2021 4.
[26] On 21 May 2021 the employer advised each applicant in writing that their position was “no longer required”, stood-down (“relieved”) each applicant from duty on full pay, and invited each applicant to a “consultation and discussion” meeting on 24 May 2021 5. That meeting was held.
[27] On 26 May 2021 the employer provided each applicant a letter advising their “employment will be terminated for reasons of redundancy with immediate effect” with specified redundancy payments and payments in lieu of notice 6.
Dealings between ANMF and the employer
[28] Prior to the redundancies taking effect, the employer and ANMF were in communication on the restructure.
[29] On 13 April 2021 the ANMF wrote to the employer concerning its consultation obligation, to which the employer responded on 14 April 2021 7.
[30] On 23 April 2021 the Branch Secretary of the ANMF wrote formally to the employer concerning the proposed changes, to which the employer responded on 30 April 2021 8.
[31] On 24 and 25 May 2021, Ms Walsh of the ANMF attended meetings at the workplace between the applicants and the employer.
[32] On 24 and 25 May 2021 Ms Walsh wrote to the employer concerning the foreshadowed redundancies, to which the employer responded on 26 May 2021 9.
[33] On 8 June 2021 Ms Walsh again wrote to the employer concerning the redundancies (which had by then been implemented), to which the employer responded on 9 June 2021 10.
[34] In her 8 June 2021 correspondence, Ms Walsh advised the employer that the ANMF “had instructions” from Mandeep Seharn (one of the applicants) to seek reinstatement. The employer agreed to meet to discuss Mr Seharn’s circumstances. In a further communication on 9 June 2021 Ms Walsh advised the employer: 11
“Regarding Mandeep, can we meet this week instead of next week? I am conscious that he has only until Wednesday next week to file an unfair dismissal application should the parties not come to an agreement on reinstatement. As Monday is a public holiday, Tuesday is too close to the cut-off date.” (emphasis added)
[35] In response, the employer suggested a meeting on the afternoon of Tuesday 15 June 2021. Ms Walsh replied on 10 June 2021: 12
“Tuesday afternoon is really far too late, Mandeep would need to file an unfair dismissal application the next day if reinstatement cannot be negotiated, and I am completely booked on Wednesday.” (emphasis added)
[36] On the late afternoon (4.06pm) of 10 June 2021 the employer advised Ms Walsh that it considered Mr Seharn’s dismissal a genuine redundancy and that he would not be reinstated 13.
[37] Upon filing proceedings on behalf of the ten applicants on 17 June 2021 (1.31pm), the ANMF copied the employer by way of service.
Dealings between the ANMF and the applicants
[38] Both prior to and following the dismissals, each applicant sought the assistance of the ANMF. The matter was first raised by the applicants with the ANMF on 13 April 2021.
[39] Following their stand-down but prior to the redundancies taking effect, on 23 May 2021 Ms Tang (an applicant employee) requested to meet the ANMF together with nine of her nursing colleagues.
[40] On 24 May 2021 Ms Walsh met in person with each of the applicants at the ANMF offices. Ms Walsh provided the applicants with advice that, in the ANMF’s view, the consultation process had been deficient and each may be able to sustain an unfair dismissal application on that ground. As the dismissals had not then taken effect, instructions were neither sought nor given to pursue unfair dismissal applications.
[41] On Friday 11 June 2021 Ms Walsh was informed that the employer had recruited new nursing staff notwithstanding the redundancies having taken effect on 26 May 2021. Ms Walsh formed the view that, apart from the consultation issue, the redundancies may not be genuine (within the meaning of the FW Act) given potential redeployment. Ms Walsh sent a group email (at 4.47pm) to the applicant employees. It read in part: 14
“Unfair dismissal
This is an important update. Per the attached, it has come to our attention that RGHA appear to be recruiting permanent nursing and carer staff. We have also been made aware of at least one new EN on the current roster. If you see an advertisement for a permanent nursing position please forward me a copy.
This means there appears to be a more comprehensive basis to dispute your redundancy (not just based on a failure to consult).
If you would like to receive further advice and / or wish to lodge an unfair dismissal application please let me know as soon as possible as you must lodge by next Thursday 17 June 2021. I understand you were all terminated on 26 May 2021. You must lodge an unfair dismissal application within 21 days of this date (not including the dismissal date).
Please note, you certainly don't have to dispute your redundancy, I just wanted you all to be aware there appears to be a more solid basis to do so.
We are closed on the Monday the public holiday next week, but you can contact me on the number below or the duty officer on 8334 1901 on Tuesday.
Kind regards,
Roushan Walsh
Industrial Officer” (emphasis added)
[42] The weekend fell on 12 and 13 June 2021. Monday 14 June 2021 was a public holiday.
[43] On Tuesday morning 15 June 2021 (11.24am) Ms Walsh sent a further group email: 15
“Good morning all
Based on reply emails, Wednesday morning is more suitable for a meeting to be held at the ANMF.
(…)
Depending on the outcomes you are looking for, and any further evidence that may come to light, your application may not be suitable to pursue beyond conciliation to a hearing. However, in our assessment, there is no apparent risk to your redundancy payment should you pursue an application to conciliation only. Further advice can be
provided along the way.
An application will need to be lodged tomorrow, and at the very latest Thursday. Our preference is to lodge tomorrow so that it is not left to the last minute. This advice is based on my understanding that you were dismissed on 26 May 2021, however, if you were dismissed earlier please advise ASAP as you may need to lodge your application today or tomorrow.
We will need you to be proactive and provide the information set out below as soon as possible.” (emphasis added)
[44] Shortly thereafter (12.25pm 15 June 2021) Ms Walsh sent an internal message to the ANMF’s industrial officers foreshadowing the need for assistance with the completion of multiple unfair dismissal applications: 16
“Hi IOs,
I am meeting with a grp of members from Ridleyton Greek Home tomorrow morning at 9am, and will likely need to lodge between 3 and 9 unfair dismissals by end of day (technically can do on Thursday which is day 21 but ideally would like to lodge tomorrow). I will have lodged one today as an example which I'll share, and each will have filled out a fairly comprehensive questionnaire directed to filing a UD application. The applications will all be fairly similar.
Wondering who would be available to complete one or two applications tomorrow? Can let you know by 10am if I need extra hands. I will lodge them together, so just need the form and attachments scanned as one doc and sent to me by end of day.” (emphasis added)
[45] On Tuesday 15 June 2021 (by phone with applicants Seharn and Cranfield) and on the morning of Wednesday 16 June 2021 (by meeting at 9am in person with applicants Beniwal, Sangha, Watts, Tang, Demura, Raguz, Tan and Hartshorne) Ms Walsh was instructed to file unfair dismissal claims for each, and was given particulars sought.
[46] Ms Walsh was feeling unwell on 16 June 2021. The causes of her then unwellness are in evidence and not in dispute. After her 9am meeting with eight of the applicants, she visited her doctor (at 10.45am) and was given a medical certificate 17 for that day and the following day (16 and 17 June 2021).
[47] Notwithstanding the certificate and being unwell, Ms Walsh returned to the office to prepare the applications. She did so on the afternoon of 16 June 2021. She secured assistance from a number of other industrial officers but not wanting to disclose the cause of her unwellness, did not allocate the entire task to others.
[48] For reasons considered later in this decision, when preparing the applications that day, Ms Walsh erroneously believed that she had until the following day (17 June) to file the applications. In fact, 16 June 2021 was the last day for filing within the statutory time limit.
[49] By late afternoon on 16 June 2021 seven of ten applications had been completed. Though working into the evening to complete the final three applications crossed her mind, Ms Walsh continued to feel unwell and decided to finalise the remaining three the following day and file all at the one time.
[50] Notwithstanding the medical certificate, Ms Walsh attended work the following day (17 June 2021). That morning (17 June) she completed the remaining three applications.
[51] At 1.31pm on 17 June 2021 Ms Walsh lodged all ten applications by email.
[52] It was not until contacted by a Commission officer on 18 June 2021 that Ms Walsh became aware that the applications had been filed late. In the days that followed Ms Walsh advised each of the applicants who, until then, had been unaware that their applications had been filed late.
Consideration
[53] Section 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(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.”
[54] The applications can only proceed if each applicant can establish that “exceptional circumstances” exist within the meaning of section 394(3).
[55] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.18
[56] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant19. A decision whether to extend time under section 394(3) involves the exercise of a discretion20.
[57] I apply section 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd: 21
“[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.”
[58] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.
[59] In considering this matter, and whilst I am dealing with all ten applications concurrently, each is a separate proceeding. Whilst much of the evidence and submissions are common, each applicant is required to establish exceptional circumstances. The consideration I undertake is to apply the statutory test to the overall body of evidence. This includes evidence common to all applications as well as evidence (if any) specific to each applicant.
Status of the applications
[60] I am well satisfied that each of the unfair dismissal applications is out of time and can only proceed if an extension of time is granted.
[61] The 21-day statutory period expired on 16 June 2021. That date is twenty-one calendar days after the dismissals took effect. As the dismissals took effect on 26 May 2021, the first of those twenty-one days was 27 May 2021. Counting forward, the twenty-first of those days fell on 16 June 2021.
[62] The statutory requirement (section 394(2)(a)) is that an application “must” be made “within 21 days after the dismissal took effect” (emphasis added). What is required is lodgement “within” twenty-one days, not “after” twenty-one days or on the day after twenty-one days.
[63] Having had their applications filed on 17 June 2021, each are one day out of time.
[64] I now consider the factors in section 394(3).
Reason for the delay (section 394(3)(a))
[65] The reason for delay in lodging an application is a factor that must be considered.
[66] The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight22.
[67] However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional23.
[68] The period of delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissals took effect when assessing whether the explanation for the delay is acceptable or credible24.
[69] The reason advanced by each applicant is representative error.
[70] The long-standing approach adopted by the Commission and its predecessors establishes that representative error may be an acceptable reason for delay insofar as it may not be fair to visit the error of a representative on an applicant. However, that approach requires primary consideration to be given to the conduct of an applicant to establish whether that applicant took appropriate steps to action the application and not contribute to the delay.
[71] As said by a full bench of the Commission in McConnell v A and PM Fornataro: 25
“(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.”
[72] And as stated by a separately constituted full bench: 26
“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.”
[73] Whilst it is relevant to consider whether an applicant has been blameworthy or blameless for delay caused by an error of their representative, it is not necessary to find an applicant blameless for exceptional circumstances to exist beyond establishing that the dismissed employee gave appropriate instructions to their representative in a timely fashion 27.
[74] Further, and relevant to these applications, the issue is not whether the representative has an acceptable explanation for their conduct or delay, but whether each applicant has an acceptable explanation for the delay 28.
[75] It is readily apparent on the evidence before me that the reason for delay was representative error. That error was a miscalculation by the industrial officer of the ANMF who had been entrusted with the responsibility of advising, preparing and filing unfair dismissal applications in accordance with instructions given.
[76] On an overall consideration of the evidence I am well satisfied that Ms Walsh made a calculation error. Though the evidence is not precise as to exactly when it was made (Ms Walsh says it was “at some point prior to 17 June 2021” 29), I find it to have been made prior to 11 June 2021 and more probably than not on or prior to 9 June 2021 when Ms Walsh communicated to the employer about the prospect of filing an unfair dismissal application for Mr Seharn.
[77] The respondent questions whether a miscalculation was actually made and whether, at the relevant time, Ms Walsh genuinely believed Thursday 17 June 2021 to be the final day for lodgement. The employer understandably makes this submission given emails it received from Ms Walsh on 9 and 10 June 2021. In both emails Ms Walsh informed the employer that Mr Seharn:
“has only until Wednesday next week” 30; and that
“Tuesday afternoon is really far too late [for a meeting because] Mandeep would need to file an unfair dismissal application the next day if reinstatement cannot be negotiated, and I am completely booked on Wednesday” 31.
[78] In these emails Ms Walsh represented the final day for lodgement to be Wednesday 16 June 2021. When considered in isolation, they carry an inference of that being her then state of mind.
[79] However, when the evidence is considered as a whole that is not the case. Rather, I find that notwithstanding these emails, Ms Walsh did miscalculate and did believe the twenty-first day to be Thursday 17 June 2021.
[80] I do so for two reasons.
[81] Firstly, this was the evidence of Ms Walsh. That evidence is unchallenged.
[82] Secondly, her evidence is plausible and supported by the surrounding circumstances including what Ms Walsh advised the applicants and also what Ms Walsh told her colleagues.
[83] Whatever Ms Walsh had said to the employer, on 11 and 15 June 2021 Ms Walsh twice advised the applicants that they had until Thursday 17 June 2021 to file:
• email 11 June 2021 32 - “If you would like to receive further advice and / or wish to lodge an unfair dismissal application please let me know as soon as possible as you must lodge by next Thursday 17 June 2021”; and
• email 15 June 2021 33 – “An application will need to be lodged tomorrow and at the very latest Thursday. Our preference is to lodge tomorrow so that it is not left to the last minute. This advice is based on my understanding that you were dismissed on 26 May 2021, however, if you were dismissed earlier please advise ASAP as you may need to lodge your application today or tomorrow.”
[84] It is more likely than not that Ms Walsh’s actual belief was reflected in her advice to members, rather than in her communication to their former employer. It was to the ANMF’s members that Ms Walsh was ultimately responsible. It was to them she would be primarily held accountable for her advice and conduct.
[85] Further, the internal note sent by Ms Walsh on 15 June 2021 to the ANMF’s industrial team seeking support 34 supports this finding. To her peers, Ms Walsh indicated that 17 June 2021 was “day 21” but that she had a preference for lodgement the day prior (“ideally would like to lodge tomorrow”). I accept Ms Walsh’s evidence35 that she had, as a matter of practice, self-imposed an earlier cut-off date as her “ideal filing date…one day ahead of the cut-off date”. The communication to her peers bears this out.
[86] It follows that Ms Walsh’s emails to the employer on 9 and 10 June 2021 did not reflect her actual belief. Misleadingly, she represented her ideal filing date as the final filing date. Without in any way excusing such conduct, I am satisfied there was an element of negotiating bravado in doing so given that, at the time, Ms Walsh was seeking to secure consensual reinstatement for Mr Seharn 36. Her email of 10 June 2021 was marked ‘without prejudice”, suggestive of a negotiating pitch.
[87] The calculation error by Ms Walsh was caused by using a lazy method of scrolling the same weekday across three weeks starting the day after dismissal took effect rather than counting twenty-one days from that day, as required by the FW Act. It may have been a rookie error but it came from an established industrial association. It was highly prejudicial to each of the applicant employees.
[88] I am well satisfied that representative error occurred and this was the reason for delay in filing the ten applications. The prejudicial consequence of the error was compounded by three factors.
[89] Firstly, Ms Walsh decided to lodge all applications at the one time. Unless all were prepared none were to be filed. Seven applications were ready for filing by close of business on 16 June 2021 yet remained un-lodged because the final three were not completed until the following day.
[90] Secondly, Ms Walsh left it to 15 June 2021 (day twenty, which she erroneously believed to be day nineteen) to seek confirmation of instructions and then left it until 16 June 2021 (day twenty-one which she erroneously believed to be day twenty) to start preparing ten applications for filing. Mitigating somewhat leaving this volume of work to be done so close to the statutory deadline is that it was not until 11 June 2021 (day sixteen) that Ms Walsh was advised that stronger grounds for challenging the dismissals may exist and that the following three days (12, 13 and 14 June) were a weekend and public holiday.
[91] Thirdly, Ms Walsh was unwell on 16 June 2021 (which she erroneously believed to be day twenty but was in fact day twenty-one), completed seven (but not ten) applications that day and deferred completing the remaining three that evening due to her unwellness.
[92] Is this reason for delay (representative error borne of miscalculation) acceptable or credible?
[93] The respondent points to a number of decisions of the Commission where extensions of time have been refused in circumstances where applicants or their representatives chose to wait until the final day for lodgement and unknowingly lodged late due to making a calculation error 37. In Shaw v Australia and New Zealand Banking Group Limited it was observed:38
“…a decision to wait to do something until the last possible moment is fraught with risk. Mr Shaw had the whole of the 21-day period during which he could have made the application. He chose to wait until the last day. Mr Shaw elected to take the risk and, in doing so, he was caught out by his earlier miscalculation.”
[94] Conversely, the applicant employees point to other decisions of the Commission where an extension of time has been granted where miscalculation was made by a representative (not the applicant) and where a related decision to wait until the final day for filing was a risk taken by the representative alone 39.
[95] Each matter must be determined on its own facts and on the application of proper principle.
[96] As noted, it is not the reason for the representative’s error that is the central object of consideration, but the reason for the delay. This necessarily involves a consideration of the conduct of each applicant.
[97] The evidence of applicants Beniwal, Tang, Demura, Raguz and Tan is that each relied on the advice and representations of Ms Walsh, each provided instructions and information when sought, and each attended the meeting with Ms Walsh as requested on 16 June 2021.
[98] The evidence of applicant Seharn is that he did not attend the meeting of 16 June 2021 as he had already independently provided instructions to Ms Walsh and was relying upon her advice and representations to try to secure his reinstatement.
[99] Whilst the remaining four applicants (Sangha, Watts, Hartshorne and Cranfield) did not file evidence in their own right, the evidence of Ms Walsh concerns her interactions with each of the ten applicants and, by inference, these four.
[100] Based on an overall consideration of the evidence, I am satisfied of the following:
• each applicant, in some instances individually and in other instances as a group, promptly raised with the ANMF concerns prior to their redundancies taking effect and immediately following their implementation;
• each applicant was attentive to communication from the ANMF and to requests by Ms Walsh to meet and provide information;
• each applicant relied on advice and representations made by Ms Walsh as to whether grounds existed for filing an unfair dismissal claim and the time frames required to do so. Further, it was reasonable for each applicant to rely on the advice of Ms Walsh communicated in writing on 11 and 15 June 2021 that they had until Thursday 17 June 2021 to file applications; and
• each applicant provided instructions and confirmation of instructions shortly after each was requested to do so on 15 and 16 June 2021. Applicants Seharn and Cranfield communicated individually on 15 June 2021 and applicants Beniwal, Sangha, Watts, Tang, Demura, Raguz, Tan and Hartshorne did so in person on the morning of 16 June 2021.
[101] No applicant materially contributed to the miscalculation or to the delay. Each was misled by the incorrect advice that applications needed to be filed by 17 June 2021. In any event, all instructions and information necessary for Ms Walsh to prepare and complete each of the applications had been provided by the applicants by the early afternoon of 16 June 2021.
[102] It follows that none of the applicants were blameworthy. Each acted reasonably in believing that their union would take the necessary steps to file applications in a lawful manner and in accordance with the advice they had received and their instructions.
[103] Whilst it was open for each applicant to perform the 21-day calculation themselves (and thereby possibly identify the calculation error) the failure to do so does not alter this conclusion. Each placed the issue in the hands of an experienced union. Given that Ms Walsh had notified each applicant of a specific day by which their application needed to be filed, performing the calculation in their own right was neither asked for nor called for. There was simply no reason for any of the applicants to second-guess their union on that issue.
[104] Overall, there is a credible explanation for the delay with respect to each application. This weighs in favour of granting extensions of time.
Awareness of the dismissal taking effect (section 394(3)(b))
[105] The applicant employees were aware from at least 26 May 2021 that their dismissals took effect that day. Each had earlier notice of the proposed workforce and rostering restructure and potential redundancy.
[106] This is a neutral consideration.
Action taken to dispute dismissal (section 394(3)(c))
[107] The applicant employees raised questions about the proposed restructure with the ANMF as early as 13 April 2021, and the ANMF raised the issue with the employer from that time.
[108] The applicant employees met both the ANMF and their employer in advance of the dismissals to discuss their concerns.
[109] Immediately upon being dismissed, the applicant employees continued to seek the assistance of the ANMF and the ANMF continued to communicate with the employer on their behalf.
[110] The potential for unfair dismissal proceedings, at least with respect to applicant Seharn, was raised with the employer on 9 and 10 June 2021, following which the employer rejected a reinstatement proposition.
[111] Eight of the ten applicants again met the ANMF on 16 June 2021 and confirmed instructions to pursue an unfair dismissal claim. Each provided information sought by Ms Walsh at that time or immediately following. Two had communicated the day prior.
[112] These events establish that the employer was on clear notice prior to and following the dismissals that the ANMF was acting for the group and that issues of concern had not been resolved notwithstanding the terms of the redundancies.
[113] Considered overall, the steps taken by the employees and the ANMF to raise concerns with the employer about the redundancies both prior to and following the dismissals weigh in favour of granting extensions of time.
Prejudice to the employer (section 394(3)(d))
[114] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances. 40
[115] The respondent submits that it would incur prejudice including by having to defend late claims.
[116] Claims would have to be responded to, involving time and cost. A workforce restructure put in place more than two months ago would be scrutinised by the Commission and potential remedies interfering with that restructure could potentially follow if the dismissals were not genuine redundancies and were found to be unfair.
[117] However, remedies potentially prejudicial to the restructure are discretionary matters capable of being addressed by alternate (compensation) remedies should that issue arise.
[118] In other respects, the nature of the prejudice is not unique. The respondent has the capacity to manage and defend litigation of this type, albeit incurring direct (financial) and indirect (uncertainty) costs. Permission has been granted for it to be represented. However, the cost of these extension of time proceedings is an additional cost burden (compounded by the adjournment occasioned by the filing of further statements by the applicants).
[119] Even were there no prejudice, the absence would not of itself be a reason to grant an extension.41
[120] Given the nature of the issues and the manner in which these proceedings have been conducted to date by the ANMF, and given there are ten applications being dealt with, I am satisfied that there is some prejudice to the employer beyond that usually and regularly encountered.
[121] This consideration weighs somewhat against extensions being granted.
Merits of the application (section 394(3)(e))
[122] The respondent submits that the applications lack merit. It claims that the dismissals were genuine redundancies and would fail on that jurisdictional ground.
[123] It is apparent from the applications that the applicant employees contest whether consultation requirements imposed by a relevant industrial instrument were met, and whether the restructure necessarily required all part-time nursing positions to be redundant or whether reasonable redeployment options existed.
[124] I have not conducted a hearing on the jurisdictional issues raised by the employer or on the merits. None of these issues have been canvassed in any detail. It is not possible to form a view, even a provisional or preliminary view, as to whether the respective cases are strong or weak.
[125] In the circumstances, this is a neutral consideration.
Fairness between persons in similar position (section 394(f))
[126] Though applicant Seharn individually pressed the employer for an early reinstatement outcome, the applicants collectively placed their interests in the hands of the ANMF. The evidence does not materially establish blameworthiness amongst any of the ten applicants for the error of their representative. Nor does the evidence materially distinguish, in a sense relevant to the extension of time issue, their conduct or interests. It would be unfair to extend time for one of the applicants but not the others.
[127] I take this into account.
Conclusion on extension of time
[128] Three factors weigh in the applicant employees favour - that the delay period is short (one day); that the explanation for the delay (representative error not contributed to by the conduct of the applicants) is credible; and that the applicants (via the ANMF) took action to question their redundancies prior to and following the dismissals taking effect.
[129] There is some limited prejudice to the employer should extensions of time be granted.
[130] I have found that it was not unreasonable for each applicant to place their interests in the hands of their representative union and, having given instructions, to await information and advice from specialists in the union to pursue their rights. I have also found that the applicants were attentive during the delay period (and prior) and not blameworthy for the delay in any material sense.
[131] Considering the evidence as a whole, I am satisfied the circumstances for the late filing of each application are exceptional. It is not usual or common that a representative union makes a miscalculation of this type and then has that error compounded by a series of events that result in the late filing (in this matter, the representative’s unwellness on 16 June 2021 and her decision to file ten applications in bulk even though seven had been prepared on the twenty-first day and could have been filed within time).
[132] I also consider it appropriate to extend time. There are no discretionary reasons to not do so. Each applicant was attentive to their interests, acted reasonably in placing the matter in the hands of their union, promptly responded to requests for information and did not act in bad faith or materially contribute to the miscalculation or delay.
Conclusion
[133] Having regard to the factors in section 394(3) of the FW Act, the time for lodgement of applications U2021/5298; U2021/5299; U2021/5301; U2021/5302; U2021/5303; U2021/5304; U2021/5306; U2021/5307; U2021/5308 and U2021/5309 are extended so as to permit each application to be heard and determined by the Commission.
[134] An Order 42 to this effect will be issued in conjunction with the publication of this decision.
[135] I direct each application into conciliation in advance of issuing directions for the consideration of the employer’s further jurisdictional issue (genuine redundancy) and the merits and remedy, should that be required.
DEPUTY PRESIDENT
Appearances:
K Rogers and R Walsh, on behalf of the Applicants
J Love, with permission, on behalf of Greek Orthodox Community of South Australia Incorporated
Hearing details:
2021
Adelaide (by video conference)
16 July
Written submissions:
Applicants – 7, 19 and 27 July 2021
Respondent – 14 July 2021
Printed by authority of the Commonwealth Government Printer
<PR732347>
1 Applicants Beniwal, Tang, Demura, Seharn, Raguz and Tan
2 Amended Statement of Roushan Walsh lodged 7 July 2021 and reply statement 15 July 2021
3 Statement of Franchesca Patient 15 July 2021
4 LT1 to F2 of applicant Tang and R1 to Respondent’s F3
5 LT2 (to F2 of applicant Tang)
6 LT3 (to F2 of applicant Tang)
7 R2 to Respondent’s F3
8 R3 and R4 to Respondent’s F3
9 MV3 to Statement of Ms Valentic
10 Ibid
11 Ibid
12 MV4
13 RWA2 to second Statement of Ms Walsh
14 RW3 to first Statement of Ms Walsh
15 RW4
16 RW5
17 RW6
18 Smith v Canning Division of General Practice[2009] AIRC 959
19 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
20 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
21 [2011] FWAFB 975 “Nulty” at [13]; see also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithiss[2010] FWAFB 7251 at [5]
22 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
23 Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
24 Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
25 [2011] FWAFB 466 at [35] citing Clark v Ringwood Private Hospital (1997) 74 IR 413 and Davidson v Aboriginal and Islander Child Care Agency Print Q0784
26 Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728 at [24]
27 Qantas Ground Services Pty Ltd v Simon Rogers[2019] FWCFB 2759 at [17]
28 Ibid at [16]
29 First Statement of Ms Walsh paragraph 13
30 MV3
31 MV4
32 RW3
33 RW4
34 RW5
35 Second Statement paragraphs 22 and 23
36 Second Statement paragraphs 29 to 34
37 Shaw v Australia and New Zealand Banking Group Limited[2014] FWC 3903; Harvey v Compass Group (Australia) Pty Ltd at [2021] FWC 1375 at [96]; Johnston v Wilson Security Pty Ltd[2018] FWC 6872
38 [2014] FWC 3903 at [28] per Gostencnik DP
39 Drelich v ALDI Stores (A Limited Partnership)[2021] FWC 4201; Lazarus v Queensland Rail Ltd[2020] FWC 4589
40 Brisbane South Regional Health Authority v Taylor [1996] HCA 25
41 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
42 PR732348
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