Belinda Medlyn v Cargo Packaging Pty Ltd

[2021] FWC 6251

[2021] FWC 6251

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Belinda Medlyn
v
Cargo Packaging Pty Ltd
(U2021/7806)

DEPUTY PRESIDENT EASTON SYDNEY, 1 NOVEMBER 2021

Unfair dismissal application filed out of time - representative error - application filed by email on Day 21 without attaching file - exceptional circumstances found - discretion to extend time warranted - order made.

[1] Ms Belinda Medlyn was dismissed from her employment with Cargo Packaging Pty Ltd (“Cargo Packaging”)on 12 August 2021. Section 394(1) of the Fair Work Act 2009 (“the FW Act”) required Ms Medlyn make her application for an unfair dismissal remedy within 21 days after the dismissal took effect, being midnight on 2 September 2021. 1 Ms Medlyn’s application was filed on 3 September 2021, being one day late.

[2] Ms Medlyn first sought assistance from a solicitor on 24 August 2021 (Day 12) and received advice in relation to her dismissal on 27 August 2021 (Day 15). In the afternoon of 2 September 2021 (Day 21) Ms Medlyn and her solicitor exchanged drafts of the Form F2 Application and at 7:17pm Ms Medlyn gave instructions to her solicitor to file her claim. At 7:25pm the solicitor tried to file the claim but did not attach the application document to the email. The email, sans attachment, was sent to both the Fair Work Commission and to Cargo Packaging.

[3] The error was identified and rectified the next morning. The Form F2 application was filed at 10:58am on 3 September 2021, being 11 hours later than the time limit in s.394(1) allows.

[4] For the reasons outlined below I find that there were exceptional circumstances - predominantly because Ms Medlyn was relevantly blameless for her solicitor’s error - and I have decided to make an order under s.394(3) granting Ms Medlyn additional time to commence her application.

Section 394 – Exceptional Circumstances

[5] An unfair dismissal remedy must be made within 21 days after the dismissal took effect (per s.394(2)), or within such further period as the FWC allows (per s.394(3)).

[6] The exceptional circumstances requirement establishes a ‘high hurdle’ for applicants to overcome. 2 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.3

[7] Section 394(3) specifically requires the FWC to take into account the following matters when considering whether there are exceptional circumstances, viz:

“(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.”

Reason for the delay

[8] I am required to take into account “the reason for the delay”. 4 The test invariably applied is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an explanation is not measured in a vacuum: firstly it must be assessed as part of an inquiry into whether exceptional circumstances exist, and then secondly in deciding whether the FWC should exercise its discretion to grant the extension.

[9] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay.⁵ That said, if an applicant does not have a credible explanation the FWC is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).

[10] Representative error may constitute exceptional circumstances if an applicant has not contributed to the delay. Generally applicants cannot simply contact a solicitor or a union and then sit on their hands for an extended period, 6 nor can applicants delay contacting a solicitor until there is insufficient time to properly prepare an application.7

[11] Ms Medlyn and her solicitor both gave evidence about the delay. The only available conclusion I can draw from the evidence is that Ms Medlyn made enquiries and sought the assistance of a solicitor with enough time for her application to be finalised and filed. The application was in fact finalised in time for filing within the 21 days. It does not help that Ms Medlyn first sought assistance on 24 August 2021 (Day 12), but she cannot be criticised for her actions over the relevant period.

[12] The solicitor also provided a Statutory Declaration affirming that the application itself was not changed between 2 September 2021 and when it was filed the next morning. This aspect of the evidence is important: if amendments had been made overnight then I would be far less inclined to grant an extension of time. I accept the solicitor’s evidence without compunction. The solicitor has admitted her error and has been full and frank with the Commission in order to avoid Ms Medlyn suffering for the solicitor’s error.

[13] I also note that the effect of the error was lessened by the fact that the solicitor sent the email to the FWC and to the employer, albeit without the attachment, within the 21 days.

[14] Ms Medlyn has provided a credible and reasonable explanation for the whole period of the delay. The reasons for delay point in favour of a finding that there were exceptional circumstances.

[15] Ms Medlyn’s circumstances are very similar to those in Cowen v Renascent Regional Pty Ltd [2021] FWCFB 2606. In that matter Mr Cowen had done all things necessary to finalise the application within 21 days but his solicitor mis-typed his email address when sending him the final draft. The Full Bench said:

“[37] Having regard to the factual circumstances, we are of the view that this is a clear case of representative error. Mr Cowen was told by his solicitor that an application would be filed on 21 or 22 December 2020, but his solicitor failed to do so. It may be that the solicitor subsequently considered that he needed confirmation of his instructions, but that is beside the point. No criticism can be made of Mr Cowen travelling to a location lacking in mobile phone coverage the day after the conference since he was entitled to make the assumption that his solicitor had already filed his application. Nevertheless, Mr Cowen followed up with his solicitor on 23 December 2020 and again on 11 January 2021, the next opportunity to do so after the period of the Christmas closedown.

…

[47] Weighing all the matters that we must and taking into account all of the matters in s394(3) of the FW Act, we are satisfied that there are exceptional circumstances in this case warranting a consideration of the exercise of the discretion to allow a further period.

[48] As to whether to exercise the discretion, we consider that in all the circumstances it is appropriate to do so, and we see no reason not to exercise the discretion. Mr Cowen took all reasonable steps to file an application within the 21-day period and, for reasons beyond his control, this did not occur. We therefore propose to allow a further period within which the application may be made. That further period is extended to 11 January 2021.”

[16] In taking into account all of the above, Ms Medlyn’s explanation for the delay does point towards the existence of exceptional circumstances. Her explanation also supports the exercise of my discretion to extend the time for filing.

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

[17] Ms Medlyn was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[18] In taking into account “any action taken by the person to dispute the dismissal” 8 I note that Ms Medlyn did not take any steps with Cargo Packaging to dispute her dismissal prior to making her unfair dismissal remedy application.

[19] To the contrary Cargo Packaging emphasised at the hearing that in the first two weeks after the dismissal there were several interactions between Ms Medlyn and Cargo Packaging, and that Cargo Packaging took significant steps to assist Ms Medlyn. The interactions were positive, at least as far as Cargo Packaging was concerned. Ms Medlyn led no evidence on these matters. Cargo Packaging says that these interactions call into question whether Ms Medlyn is genuinely aggrieved by her dismissal and says that Ms Medlyn’s unfair dismissal application “just doesn’t feel right.”

[20] I note that on 23 August 2021 (Day 11) Ms Medlyn indicated to one director of Cargo Packaging that she had a problem with the other director, and that she “wanted to go after him.” The application does not turn on this point, but I don’t regard Ms Medlyn’s comment about wanting to “go after” a director as action taken to dispute her dismissal.

[21] I don’t need to make any further findings about these matters. Overall this is not a factor that supports the existence of any exceptional circumstances nor the exercising of the Commission’s discretion to grant an extension of time.

Prejudice to the employer

[22] I must consider the “prejudice to the employer (including prejudice caused by the delay).” 9 Cargo Packaging accepts, quite properly, that there was no specific prejudice suffered because of the delay. Given that the delay is very short, it is unsurprising that there is a no prejudice to the employer. In these circumstances the absence of prejudice does not weigh in favour of a finding of exceptional circumstances.10

Merits of the application

[23] Section 394(3)(e) requires that I take into account “the merits of the application” when considering whether there are exceptional circumstances and the extension of time more generally.

[24] It is not possible or appropriate to make any firm or detailed assessment of the merits that at this juncture. There are sound reasons why the FWC should not receive evidence and make factual findings on contested issues at this stage of the proceedings - most notably because parties should not have to present their evidentiary case twice. 11

[25] In this context it is sufficient for applicants to establish that their claim is not without merit. 12

[26] It is quite possible that Ms Medlyn has not completed the minimum employment period with Cargo Packaging. In short, the FWC can only make an order for reinstatement or compensation if a person “was protected from unfair dismissal” (see s.390(1)(a)). A person is protected from unfair dismissal if their “period of employment” (defined in s.384) is at least the “minimum employment period (defined in s.383 by reference to whether the employer is a small business or not).

[27] Ms Medlyn commenced employment with Cargo National Pty Ltd in July 2019. Cargo Packaging Pty Ltd became Ms Medlyn’s employer in November 2020. Much will depend on whether there was a transfer of business between Cargo National Pty Ltd and Cargo Packaging Pty Ltd (see s.12, s.311 and s.384(2)(b)) and if Cargo Packaging Pty Ltd informed Ms Medlyn in writing before employment started that the period of service with the old employer would not be recognised (per s.384(2)(b)(iii)).

[28] At this stage I find that Ms Medlyn does have at least an arguable case. I consider the merits to be a neutral consideration.

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

[29] Finally, I must take into account “fairness as between the person and other persons in a similar position.” 13 This consideration seems to have been derived from a series of cases in the Federal Court and the former Industrial Relations Court of Australia.14 In certain circumstances there may be people in a “similar position” to Ms Medlyn, such as other employees dismissed by the same employer at the same time. Under s.394(3)(f) the FWC can consider factors beyond the immediate circumstances of the parties to ensure that there is fairness in the treatment of Ms Medlyn’s claim compared to the claims of others in a similar position.

[30] I am not aware of any persons or cases that are relevant to the question of fairness as between Ms Medlyn and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[31] In this matter Ms Medlyn has provided a good reason for the delay – being representative error about which she is blameless – which strongly points towards there being exceptional circumstances. The other factors are either neutral or don’t point against there being exceptional circumstances.

[32] Therefore I am satisfied that there are exceptional circumstances. I am also satisfied that I should exercise my discretion in Ms Medlyn’s favour and grant the extension of time.

DEPUTY PRESIDENT

Appearances:

Ms G Barry, for the Applicant
Mr D Bowden, for the Respondent

Hearing details:

2021.
Sydney (By Video using Microsoft Teams)
October 29.

Printed by authority of the Commonwealth Government Printer

<PR735408>

 1 Allowing for the operation of s.36(2) of the Acts Interpretation Act 1901 (Cth).

 2   Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3 [2016] FWCFB 349 at [16], Ivan Cowen v Renascent Regional Pty Ltd[2021] FWCFB 2606 at [24].

 3   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975 at [13].

 4   Fair Work Act 2009 (Cth), s.394(3)(a).

5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (2018) 273 IR 156, [2018] FWCFB 901 at [30]-[40] and Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [36].

 6   Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [59]-[61].

 7   Diotti v Lenswood Cold Stores Co-op Society (t/as Lenswood Organic) (2016) 258 IR 110, [2016] FWCFB 349 at [27]-[32].

 8   Fair Work Act 2009 (Cth), s.394(3)(c).

 9   Fair Work Act 2009 (Cth), s.394(3)(d).

 10   Miller v DPV Health Ltd [2019] FWCFB 6890 at [21] citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149at [38].

 11   Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [72].

 12   Thomas Cosgrove v Clarity Interiors [2020] FWCFB 5464 at [33], citing Kornicki v Telstra-Network Technology Group (1997) 140 IR 1 at 11, Print P3168

 13   Fair Work Act 2009 (Cth), s.394(3)(f).

 14   See Lucic v Nolan (1982) 45 ALR 411 at 416, [1982] FCA 217; Wedesweiller and others v Cole and others (1983) 47 ALR 528 at 531, [1983] FCA 94; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349, [1984] FCA 176; Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300. See also Wilson v Woolworths[2010] FWA 2480 at [25]-[29].