Barry Gordon Hamilton v Racing and Wagering Western Australia

[2019] FWC 4654

[2019] FWC 4654

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Barry Gordon Hamilton
v
Racing & Wagering Western Australia
(U2019/3856)

DEPUTY PRESIDENT BINET PERTH, 11 JULY 2019

Application for an unfair dismissal remedy – Extension of time granted

Introduction

[1] On 4 April 2019, Mr Barry Hamilton (Mr Hamilton) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 394(1) of Fair Work Act 2009 (Cth) (FW Act) for a remedy with respect to his dismissal by Racing & Wagering Western Australia (Racing & Wagering) on 28 February 2019.

[2] Subsection 394(2) of the FW Act provides that an application made pursuant to section 394(1) of the FW Act must be lodged within 21 days after the dismissal took effect. The 21 day period commences on the day following the date of dismissal. Subsection 394(3) provides that the FWC may allow a further period for lodgement in exceptional circumstances.

[3] The Application was due to be filed by 21 March 2019 and was lodged 14 days out of time. Mr Hamilton has sought an extension to the lodgement time limit. Racing & Wagering have objected to the FWC granting such an extension. The application for an extension of time was listed for hearing on 4 July 2019 (Hearing).

[4] Both Mr Hamilton and Racing & Wagering sought permission to be represented by a lawyer at the Hearing.

[5] Section 596 of the FW Actprovides as follows:

“Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.

(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”

[6] Both parties filed written submissions addressing these criteria and identifying relevant authorities. Given that the Hearing involved the determination of a jurisdictional objection which requires a familiarity with the relevant case law I was satisfied that granting permission to both parties to be represented would enable the matter to be dealt with more efficiently.

[7] At the Hearing Mr Hamilton was represented by Mr Jason Raftos of John Toohey Chambers (Mr Raftos) who called Mr Hamilton to give oral evidence in addition to tendering a witness statement from Mr Hamilton. Mr Raftos also tendered a witness statement by Mr Stephen Chad Mintz (Mr Mintz). Mr Mintz is a restricted practitioner, formerly employed by Tang Law, who was charged with the conduct of Mr Hamilton’s matter during his employment with Tang Law.

[8] At the Hearing Racing & Wagering was represented by Ms Briony Pole of Minter Ellison (Ms Pole). Ms Pole tendered a witness statement by Mr Mathew Thomas. Mr Thomas is the General Manager of People and Culture for Racing & Wagering.

Background

[9] Mr Hamilton commenced employment with Racing & Wagering on 28 March 2012. 1

[10] On or around 20 February 2019 Mr Hamilton engaged Tang Law to advise him in relation to his employment with Racing & Wagering. Day to day conduct of Mr Hamilton’s matter was placed in the hands of Mr Stephen Mintz (Mr Mintz), a restricted practitioner then employed by Tang Law. 2

[11] On 28 February 2019 Racing & Wagering emailed a letter to Mr Hamilton which informed him that he was dismissed from his employment effective immediately. Racing & Wagering emailed a copy of the letter to Mr Mintz the same day. 3

[12] On 28 February 2019 Mr Hamilton emailed Mr Mintz and informed him that he wished to make an application for a remedy for unfair dismissal and asked how much he was required to deposit into Tang Law’s trust fund. 4

[13] On 5 March 2019 Mr Mintz emailed the Applicant, on the mistaken belief that the application should be made in the Western Australian Industrial Relations Commission (WAIRC), that the application would need to be filed within 28 days from 28 February 2019. 5

[14] On 7 March 2019 Mr Hamilton formally instructed Mr Mintz that he wished to proceed with an unfair dismissal claim. 6

[15] On 13 and 22 March 2019 Mr Hamilton contacted Mr Mintz to inquire as to the progress made in preparing his application and to provide a summary of relevant issues which they had previously discussed. 7

[16] On 22 March 2019 Mr Mintz emailed Mr Hamilton a copy of the proposed application in the WAIRC for his review and approval. 8

[17] On 25 March 2019 Mr Hamilton emailed Mr Mintz his suggested amendments to the proposed application and instructed Tang Law to lodge his application. 9

[18] On 27 March 2019 Mr Mintz filed an application for unfair dismissal in the WAIRC on Mr Hamilton’s behalf (WAIRC Application). 10

[19] On 29 March 2019 the Registry of the WAIRC notified Racing & Wagering that the WAIRC Application had been filed. 11

[20] On 3 April 2019 Racing & Wagering’s solicitors emailed a letter to Mr Mintz asserting that Mr Hamilton was not eligible to make the WAIRC Application because Racing & Wagering is a constitutional corporation, and thus a national system employer, for the purposes of the FW Act. 12

[21] On 4 April 2019 Mr Mintz advised Mr Hamilton that he was not eligible to make the WAIRC Application and that it would be necessary to withdraw that application and lodge the present application in the FWC. 13

[22] On 4 April 2019 Mr Hamilton instructed Tang Law to lodge the Application in the FWC. Mr Mintz did so the same day. 14

[23] On 11 April 2019 the FWC informed Racing & Wagering that the Application had been filed in the FWC. 15

Relevant Statutory Provisions

[24] Section 394 of the FW Act provides:

“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.”

[25] Mr Hamilton submits that he should be granted an extension of time to bring the Application because:

a. the reason for delay was due to the fault of his legal representative, who initially sought to bring the claim in the incorrect jurisdiction;

b. he had taken reasonable steps to ensure that the Application was made in a timely manner;

c. the Application for unfair dismissal has merit;

d. the denial of an extension in this context will unduly prejudice him; and

e. the granting of an extension of time will not unduly prejudice Racing & Wagering.

[26] Section 394(3) of the FW Act provides that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in Nulty v Blue Star Group. 16In that matter the Full Bench held the following in relation to “exceptional circumstances”:

“[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.”

[27] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. 17 The test of exceptional circumstances establishes a high hurdle for an applicant to overcome for an extension to be granted.18 Having taken into account the factors set out in section 394(3) of the FW Act ultimately, the power to grant an extension for the filing of an application which has been lodged out of time is a discretionary one.19

Consideration

s.394(2)(a) – The reason for the delay

[28] The onus is on Mr Hamilton to provide a credible reason for the whole of the period that the Application was delayed. 20

[29] While the delay to be considered is the period subsequent to the expiration of the 21 day period the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. 21

[30] The absence of any explanation for any part of the delay will usually weigh against an applicant and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour. 22

[31] Mr Hamilton submits that the reason for the delay was a failure on the part of his representative to identify the correct jurisdiction in which to bring his claim.

[32] The late lodgement of an application due to representative error may be grounds for an extension of time however the conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay. 23 The Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency explained that:24

“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.”

[33] In this case Mr Hamilton did not simply leave matters in the hands of his representative and do nothing more. He relied in good faith on the advice of his representative that his application should be filed with the WAIRC rather than the FWC and that there were 28 days for his application to the WAIRC to be completed and filed. Mr Hamilton followed up with his representative on more than one occasion within the timeframe which he believed he was required to meet. His application to the WAIRC was filed within the time-limits prescribed for applications of that nature in that jurisdiction.

[34] Unlike the situations in Burns v Aboriginal Legal Service 25 and Parkes v Melena Pty Ltd t/as Ekas Market Research26 in which applications for extensions of time was refused when the applicants filed in the wrong jurisdiction, in this case the error in the identification of the appropriate jurisdiction was remedied promptly.

[35] A day after Mr Hamilton was alerted to the fact that his application had been brought in the wrong jurisdiction, he instructed Mr Mintz to file a fresh application in the FWC. The Application was filed that day.

[36] Mr Hamilton’s circumstances are analogous to the circumstances of the applicant in Palmer v RCR Engineering Pty Ltd 27who was granted an extension of time to file his application after initially filing his application in the WAIRC. In that case the Applicant was granted an extension of more than 4 weeks to accommodate his filing of an application in the federal jurisdiction ‘a couple of days’ after being alerted to the fact that his application to the WAIRC was made in the wrong jurisdiction.

[37] I am satisfied that in the circumstances, Mr Hamilton has provided a satisfactory explanation for the 14 day delay in filing the Application. I am also satisfied that he has provided a satisfactory explanation for why the Application was not filed within the 21 day period prescribed by the FW Act.

[38] In the circumstances, I am persuaded there is an acceptable explanation for the delay and this factor weighs in favour of a finding of exceptional circumstances warranting the granting of an extension of time.

s.394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect

[39] Mr Hamilton was informed of his dismissal on the day it took effect. This means that Mr Hamilton had the benefit of the full 21 day statutory time period in which to lodge the Application.

[40] This factor weights against a finding of exceptional circumstances warranting the granting of an extension of time. 28

s.394(3)(c) – Any action taken by the person to dispute the dismissal

[41] Action taken by an applicant to contest the termination, other than by virtue of making the application will be relevant and may weight in favour of granting the extension of time. 29

[42] Racing & Wagering submit that in the 21 days following Mr Hamilton’s dismissal neither he nor Tang Law took any action to dispute the dismissal. 30

[43] Lodgement in the wrong jurisdiction has previously been recognised by the FWC as evidence of action taken to dispute a dismissal which weighs in favour of granting an extension. 31 Mr Hamilton, as with the applicant whom was granted an extension to file his application in Palmer v RCR Engineering Pty Ltd32, took action to contest his dismissal by immediately instructing his representative to prepare an application, then ensuring his representative filed an application within the time limit by which he wrongly believed he was bound.

[44] In the communications with his representative it is clear that Mr Hamilton’s attention has always been to dispute his dismissal. The evidence demonstrates that he took proactive steps to do so.

[45] In the circumstances, Mr Hamilton’s action taken to dispute his dismissal weighs in favour of a finding of exceptional circumstances warranting the grant of an extension of time.

s.394(3)(d) – Prejudice to the employer (including prejudice caused by the delay)

[46] Prejudice to the employer will go against the granting of an extension of time. Mere absence of prejudice to the employer is an insufficient basis to grant an extension of time. 33

[47] Racing & Wagering submit that having to respond to an unfair dismissal claim is of itself a prejudice and that in this case the prejudice is greater because Racing & Wagering have already incurred expenses in responding to Mr Hamilton’s application to the WAIRC. 34

[48] Racing & Wagering also point to the costs of opposing the out of time application.

[49] Mr Hamilton submits that there is no prejudice to Racing & Wagering other than that faced by any employer who is a respondent to an application for a remedy for unfair dismissal and that the delay is not so long of itself as to cause prejudice.

[50] If the Application was filed within time Racing & Wagering would have incurred legal fees defending the Application. Racing & Wagering have not identified any specific prejudice caused by the delay as opposed to prejudice associated with the cause of the delay, namely the filing of the application in the wrong jurisdiction. Racing & Wagering elected to oppose the application for an extension of time. Whether or not the application was opposed the FWC is required to consider the same statutory test and consider the same authorities before determining whether or not it is appropriate to grant an extension of time.

[51] Racing & Wagering have not produced any evidence of actual prejudice other than assertions that costs have been incurred.

[52] In the circumstances this factor weighs in favour of finding that exceptional circumstances warranting the grant of an extension exist.

s.394(3)(e) – The merits of the application

[53] If a claim has merits, this will weight in favour of the grant of an extension of time. 35

[54] In considering the merits of an application for an extension of time, the FWC is not normally in a position to make findings of fact on contested issues because to do so would require the parties in effect to present their evidentiary cases twice. 36

[55] In summary Mr Hamilton submits that his dismissal was unfair because 37:

a. the allegations raised against him were expressed in broad and general terms, which prevented him meaningfully responding to the allegations;

b. Racing & Wagering did not give proper consideration to his responses;

c. there was no indication prior to his dismissal that his conduct or work was unsatisfactory and/or that it might lead to his dismissal

d. the termination of his employment coincides with the onset of severe anxiety and depression; and

e. Racing & Wagering has inconsistently applied standards of discipline.

[56] Racing & Wagering did not make any submissions or lead any evidence in the materials filed in response to the extension of time application which indicate that the claim is without merit other than to submit that the factual matrix is contested by the parties. The parties ought not be expected to present their full evidentiary case in relation to the merits of the Application in advance of the merit hearing. However in the absence of any material to assess the potential merit of the Application in this case I find that this factor weighs in favour of a finding that exceptional circumstances warranting the granting of an extension of time exist.

s.394(3)(f) – Fairness as between the person and other persons in a like position

[57] The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past. This consideration is concerned with the importance of the application of consistent principles in cases of this kind however cases of these kind quite often turn on their own facts.  38

[58] There are other cases with circumstances analogous to Mr Hamilton’s in which the FWC has granted an extension of time in circumstances of representative error. 39 There are also cases in which representative error has not been held to be an exceptional circumstance. These cases can be differentiated from Mr Hamilton’s.40

[59] In light of these cases I am satisfied that this factor weighs in favour of a finding that exceptional circumstances warranting the granting of an extension of time exist.

Conclusion

[60] Mr Hamilton has provided an explanation for the delay in the filing of the Application and for the period prior to that. Having engaged a firm to act on his behalf, he relied on their apparent expertise and took proactive steps to ensure that the Application was lodged in compliance with the relevant legislation. Such steps would ordinarily have resulted in an application being lodged on time. Despite proactively challenging his dismissal Mr Hamilton subsequently discovered that through no fault of his own his Application was out of time. Within a day of discovering his representative’s error this Application was filed. On balance, I am of the view that the combination of circumstances that Mr Hamilton faced when viewed together were out of the ordinary, albeit not unprecedented.

[61] Having considered each of the factors set out in section 394(3), I am satisfied that there are exceptional circumstances warranting Mr Hamilton being granted an extension of time to lodge his application and I shall exercise my discretion to grant him an extension of time to lodge his application until 4 April 2019.

[62] The Application will be progressed by way of a conference at a time and date to be advised.

DEPUTY PRESIDENT

Appearances:

Mr Raftos on behalf of the Applicant.

Ms B Pole on behalf of the Respondent.

Hearing details:

2019

Thursday

4 July

Printed by authority of the Commonwealth Government Printer

<PR710010>

 1 Statement of Agreed Facts filed 7 June 2019 at [1].

 2   Exhibit A1 at [4]-[7].

 3   Statement of Agreed Facts filed 7 June 2019 at [2]-[3].

 4   Exhibit A1 at [14] and Annexure A and Exhibit A2 at [7] and Annexure A.

 5   Exhibit A1 at [15] and Annexure B a Exhibit A2 at [8] and Annexure B.

 6   Exhibit A1 at [16] and Exhibit A2 at [9].

 7   Exhibit A1 at [17] and Annexure C and Exhibit A2 at [10] and Annexure C.

 8   Exhibit A1 at [18] and Annexure D and Exhibit A2 at [11] and Annexure D.

 9   Exhibit A1 at [19] and Annexure E and Exhibit A2 at [12] and Annexure E.

 10 Statement of Agreed Facts filed 7 June 2019 at [4].

 11 Exhibit R1 at [10].

 12 Statement of Agreed Facts filed 7 June 2019 at [5].

 13 Exhibit A2 at [13].

 14 Statement of Agreed Facts filed 7 June 2019 at [7] and Exhibit R2 at [14].

 15 Exhibit R1 at [12].

 16 (2011) 203 IR 1.

 17   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters (2018) 273 IR 156 at [38].

 18   Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [16].

 19   Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [8].

 20   Emma Dawson v Virgin Australia Airlines Ply Ltd [2017] FWC 3890 at [25]–[26].

 21   Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [31].

 22   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters (2018) 273 IR 156 at [39].

 23   McConnell v A & PM Fornataro (t/a Tony’s Plumbing Service)[2011] FWAFB 466 citing Davidson v Aboriginal and Islander Child Care Agency (AIRCFB, Ross VP, Watson SDP, Eames C, 12 May 1998) Print Q0784

 24   Davidson v Aboriginal and Islander Child Care Agency (AIRCFB, Ross VP, Watson SDP, Eames C, 12 May 1998) Print Q0784

 25   (Unreported, AIRC, O’Connor C, 25 July 2000) Print S8525.

 26   (Unreported, AIRCFB, Giudice J, Duncan SDP, Larkin C, 5 February 2004) Print PR943310.

 27   Palmer v RCR Engineering Pty Ltd[2009] FWA 1431.

 28   Meek v Baycorp Pty Ltd t/a Baycorp Pty Ltd[2016] FWC 1291 at [15].

 29   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.

 30   Respondent’s Submissions filed on 13 June 2019 at [16] – [17].

 31   Palmer v RCR Engineering Pty Ltd [2009] FWA 1431 at [8].

 32   [2009] FWA 1431.

 33   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.

 34   Respondent’s Submissions filed on 13 June 2019 at [19]-[22].

 35   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 36   Kyvelos v Champion Socks Pty Ltd (AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [14].

 37 Exhibit A2 at [15].

 38   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].

 39   See for example Palmer v RCR Engineering Pty Ltd[2009] FWA 1431.

 40   See for example Parkes v Melena Ltd t/a Ekas Market Research Services PR943310 (ARICFB, Guidice J, Duncan SDP, Larkin C, 5 Febuary 2004).