Brendon Whittaker v Crowe Horwath (Aust) Pty Ltd T/A Crowe Horwath

[2016] FWC 7176

[2016] FWC 7176

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Brendon Whittaker
v
Crowe Horwath (Aust) Pty Ltd T/A Crowe Horwath
(C2016/4878)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 6 OCTOBER 2016

Application to deal with contraventions involving dismissal.

[1] On 12 August 2016 Mr Brendon Whittaker (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Crowe Horwath (Aust) Pty Ltd T/A Crowe Horwath (the Respondent).

[2] The Applicant commenced employment with the Respondent on 26 July 1999. He was an accountant in the Respondent’s business based on Toowoomba, Queensland. At the time of his dismissal, the Applicant was a Senior Manager in the Toowoomba Business Advisory Team. He says that he was dismissed on 21 July 2016 and the dismissal took effect on that day.

[3] The application was lodged one day out of time.

Alleged Contravention

[4] The Applicant alleges that he had been advised on 19 July that his position was to be restructured. There was some discussion about redeployment and on 21 July the Applicant advised the Respondent in writing that he wished to be re-deployed.

[5] The Applicant submits that he had been a well-performing employee who had never been the subject of a disciplinary hearing. Nevertheless he was dismissed on the alleged grounds of redundancy.

[6] The Applicant submits that he was dismissed because of his disability. He has been diagnosed with Friedrich’s Atoxia and consequently is confined to a wheelchair. A breach of s.351 in respect of physical disability is alleged.

Respondent’s Submissions

[7] The Respondent denies these allegations and further denies that there has been a breach of the General Protections provisions of the Act.

[8] The Respondent submits that the Applicant’s dismissal was a genuine redundancy and the Applicant did not express an interest in redeployment in sufficient time.

[9] The Respondent points out that the Applicant had legal representation since 25 July at the latest but yet still failed to lodge the application in time. The Respondent should not be disadvantaged because of the Applicant’s failure to lodge in time.

Relevant Legislation

[10] Section 366 of the Act provides:

366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

Approach of the Commission

[11] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[12] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[13] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ  the correct approach.”

Commission Proceedings

[14] On 17 August 2016, the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 29 August 2016.

[15] The Applicant was represented by Ms A. Mish-Wills, solicitor. The Respondent was represented by Mr A. Lunn, solicitor. Both were granted permission to appear pursuant to s.596 of the Act.

Matters to be taken into account pursuant to s.366(2)

[16] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[17] The Applicant submits that legal representative error was the main reason for the delay in filing. Ms Mish-Wills failed to check the date for filing but relied on an earlier comment by the Applicant. The Applicant referred to Clark v Ringwood Private Hospital (1997) IR 413; Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347 (Robinson); Schmidt v Boral Fused Materials Pty Ltd[2016] FWC 2575; Staymar v UAM Pty Ltd[2016] FWC 1477 and Diotti v Lenswood Cold Stores Co-Op Society[2015] FWC 7659 (Diotti). I have already referred to the Full Bench appeal from the Diotti decision.

[18] It is submitted that the failure to lodge in time was solely as a result of the legal representative’s error and the Applicant should not be held to be responsible for it.

[19] Ms Mish-Wills’ witness statement sets out the various steps taken by her to pursue the Applicant’s entitlements and other matters. The application was prepared on 10 August but not lodged until 12 August. Ms Mish-Wills went on annual leave on 11 August, leaving it to others to finalise and lodge.

[20] The Full Bench decision in Robinson summarised the overall approach to representative error as follows:

“[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 carryout 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.”

[21] It then concluded that an applicant was entitled to rely on its legal representative to properly lodge an application:

“[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.”

[22] In Diotti Senior Deputy President O’Callaghan concluded that the Applicant did nothing to challenge her dismissal for 17 days and then contacted her union. He went on as follows:

“[14] The long standing approach of the Commission is that representative error may represent an acceptable reason for the delay and, hence in terms of the current legislative requirement, an exceptional circumstance. That approach is founded on the principle that, if an applicant did not contribute to a delay caused by his or her representative, it would not be fair to hold that error against the applicant. There is no coherent explanation for the delay, of some 17 days before Ms Diotti indicated concern to her union relative to the termination of her employment. In these circumstances, I am not satisfied that Ms Diotti’s circumstances mean that the relatively minimal effect of that representative error favour a finding of an exceptional circumstance and hence, an extension of time. Whilst I have accepted an element of representative error associated with Mr Blewett’s inaction in processing the matter between 19 October 2015 and 22 October 2015, any such representative error is not, of itself, a basis for an extension of time. Appropriate account must be taken of the overall circumstances and the conduct of the applicant. Consequently, all of the actions, or in this case, lack of action on the part of Ms Diotti are central to the question of whether there is an acceptable reason for the delay. The circumstances here are simply not properly characterised as fairly explaining the delay on the basis of representative error. The delay here was fundamentally caused by lack of action on the part of Ms Diotti even though she was aware of the 21 day time limit. She simply left it too late to request the assistance of her union.

[15]I have noted that United Voice took action on 16 October 2015, shortly after Ms Diotti advised of the concerns she had about the termination of her employment, so as to seek an explanation for this dismissal. Whilst this represents an alternative form of action to the lodgement of this application, Ms Diotti’s delay in bringing the matter to the attention of United Voice was of her own making.

[16]I am not satisfied that the granting of an extension of time represents prejudice to the respondent in this matter but this, of itself, cannot represent a basis for an extension of time.”

[23] The Full Bench decision quoted above did not disturb this conclusion.

[24] Most recently the Full Bench in Todd Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 concluded:

“[30] There seems little doubt, based on the Appellant’s evidence before us, that the delay during the period between 27 October 2015 and the date on which the application was ultimately lodged was occasioned by representative error. In and of itself representative error will not provide an acceptable explanation for a delay. A person relying upon representative error must also show that the person was blameless and did not by act or omission cause or contribute to the error.

[31] On the evidence it seems clear to us that the Appellant acted promptly in engaging solicitors. He provided the solicitors with all relevant documents, including the letter of 26 October 2015, promptly. He received advice from his solicitors that the time for making the application, the subject of this appeal, commenced to run from 26 October 2015 and having received legal advice acted in accordance with that advice. There is nothing in the evidence suggesting that by his actions or through his omission the Appellant contributed to the error. In the circumstances, we are satisfied that the Appellant was blameless for the representative error made by his solicitors, namely in furnishing the Appellant with advice that the date from which time is to be reckoned for the purposes of making his application was from 26 October 2015. We are satisfied that the error identified caused the delay and explains entirely the period of delay between 27 October 2015 and the day on which the application was lodged.”

[25] Applying the principles in these cases, I am satisfied that representative error was responsible for the delay of one day in filing. Whilst the Applicant did express to his solicitor a view about the date of filing, that should not have been accepted without checking. The Applicant had acted promptly to obtain legal representation. He was entitled to proper independent legal advice on this most basic of issues and to have his claim properly lodged.

[26] Accordingly the reason for the delay tends to indicate exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[27] The evidence was that the Applicant had taken action to dispute the dismissal by direct correspondence to the Respondent and then by correspondence by the solicitors.

[28] I am satisfied that the Applicant did take steps to challenge the dismissal.

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

[29] I do not consider that the Respondent would be unduly prejudiced in having to deal with the substance of the Applicant’s claim.

(d) Merits of the application

[30] The Applicant says that his performance had been viewed positively in his 17 years’ service with the Respondent. The prospect of redundancy was first raised with him on 19 July. There were vacancies at this level that were available. It is submitted that the redundancy was a pretext to get rid of the Applicant because of his disability.

[31] The Respondent says that this was part of restructure and that there was an offer of redeployment.

[32] Overall, little was put on the merits by either side other than the basic assertions which I have summarised.

[33] I consider it appropriate for the Respondent to be required to demonstrate that the onus can be discharged and that the operative reason for the dismissal was a genuine redundancy.

(e) Fairness as between the person and other persons in a like position

[34] This factor was not addressed and has not been taken into account.

Conclusion

[35] Having considered all of the factors set out in s.366(2), I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application for a further period for lodging of the application is granted. An Order (PR586193) in these terms will accompany this decision. .

DEPUTY PRESIDENT

Appearances:

A. Mish-Wills, solicitor for the Applicant;

A. Lunn , solicitor for the Respondent.

Hearing details:

2016

(Telephone hearing).

August 29.

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