Bruce Selth v SA Group Enterprises Inc
[2015] FWC 8071
•26 NOVEMBER 2015
| [2015] FWC 8071 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bruce Selth
v
SA Group Enterprises Inc
(U2015/14061)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 26 NOVEMBER 2015 |
Application for relief from unfair dismissal - extension of time granted.
[1] Mr Selth has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with SA Group Enterprises Incorporated (SA Group Enterprises). The application was considered at a telephone conference convened on 25 November 2015. At this conference, I advised that I had concluded that the application was lodged outside of the statutory time limit but that I was satisfied that this time should be extended. These reasons set out the basis upon which I reached that conclusion.
[2] The application was lodged on behalf of Mr Selth by Mr Moase, of the National Union of Workers (the NUW).
[3] That application advised that Mr Selth’s dismissal took effect on 12 October 2015 and provided the following reason for the late lodgement:
“ The Applicant informed the National Union of Workers (the NUW) of his termination on 28 October 2015 and provided instructions to file an Unfair Dismissal Application on his behalf.
- Due to the NUW having an Industry Picnic Day on Monday 2 November 2015 followed by the Melbourne Cup Public Holiday on Tuesday 3 November 2015, the application was not lodged in time.
- The Applicant took all reasonable steps to make the Application and believed that NUW would lodge the Application on his behalf within the 21 day time limit. The delay in lodging the application was wholly attributable to representative error.” 1
[4] On 6 November 2015 my Associate corresponded with both Mr Selth and SA Group Enterprises and advised that the extension of time issue would be considered through a telephone conference on 26 November 2015. Substantial information about the extension of time issue was provided to the parties. Mr Selth was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 19 November 2015. The initial conference date was subsequently changed to 25 November 2015, at the request of Ms Meyer, of the NUW who advised, on 10 November 2015, that she was representing Mr Selth.
[5] No Employer’s Response to the application has been received despite a request to this effect.
[6] As Mr Selth had not lodged any material by 19 November 2015, my Associate forwarded a request for this to be given urgent attention on 20 November 2015. This request was sent to both Mr Selth and to the NUW. On 24 November 2015 Ms Miflin of the NUW provided advice that Ms Meyer had been unwell and provided a letter signed by Mr Moase, the Assistant General Branch Secretary of the NUW. This letter set out the following contentions:
1. The Applicant informed the National Union of Workers (the NUW) of his termination following receipt of the formal notice of termination and provided instructions to file an Unfair Dismissal Application on his behalf within the 21 day time limit.
2. The Applicant took all reasonable steps to make the Application and believed that NUW would lodge the Application on his behalf within the 21 day time limit. The delay in lodging the application was wholly attributable to representative error by administration, who failed to lodge the paperwork in time.
3. Mr Selth has been employed by the Respondent for over 14 years and in that time was promoted to the position of Team Leader.
4. The merits of Mr Selth's case are strong. He was dismissed on the basis of unsubstantiated allegations against him; that is, only Mr Selth and the Complainant were witnesses to the events in question however the Complainants version of events were unfairly preferred by the Respondent. Even prior to the dismissal Mr Selth complained that he was not afforded a fair and impartial investigation and determination of his employment status.
5. Mr Selth maintains that the Respondent seized upon the complaint as an opportunity to avoid paying out a redundancy or find him alternative employment within the group of companies. Mr Selth has a family who are financial dependant on him and his lack of income is causing significant financial detriment to him and his family. The stresses of this situation are exacerbated given his future employment prospects at 59 years of age are poor.
6. The position of the NUW is that the grounds upon which Mr Selth was dismissed were inaccurate, and in order for Mr Selth to be afforded procedural fairness, it would be necessary for the Commission to afford Mr Selth an extension of time on the Unfair Dismissal Application.
7. No prejudice to the Respondent as a result of only lodging two days out of time.
[7] Mr Selth did not initially participate in the conference on 25 November 2015 but Ms Miflin then contacted him and arranged for him to participate. Notwithstanding this, Mr Selth was represented by Ms Miflin of the NUW. Mr Nihill, of SA Group Enterprises participated in the conference. I note that a sound file record of this telephone conference was kept.
[8] The extension of time issue was determined on the basis of all of the information provided to me.
[9] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.
[10] Section 394 relevantly states:
“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.”
[11] Mr Selth’s unfair dismissal application was made one day outside of the 21 day time limit and hence, can only be pursued if this time limit is extended.
[12] I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd2 which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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.”
[13] The NUW asserts that the delay was occasioned by representative error. Whilst Mr Selth was directed to provide a statement detailing his position relative to the extension of time issue and did not do so, I have accepted his position that he relied on advice from the NUW to the effect that it would address the extension of time issue. Mr Selth provided advice in the conference about his version of the actions which he took to initiate this application. That advice is inconsistent with the information provided by the NUW in the application. I prefer Mr Selth’s advice in this respect because I have significant doubts about the reliability of the NUW records. I have concluded that Mr Selth agreed that an NUW Organiser was present at the interview on 12 October 2015 which culminated in the termination of his employment. Mr Selth provided the National office of the NUW with the letter advising of the termination of his employment on 22 October 2015. He provided instructions to lodge the application to the NUW on 26 October 2015 and made further enquiries about his application on 28 October 2015. Whilst the application was not lodged until 4 November 2015 I also acknowledge that this was the day after the Melbourne Cup holiday in Victoria. In this regard I have concluded that the advice in the application about the actions taken by Mr Selth is incorrect and the advice in the NUW correspondence of 24 November 2015 is largely unhelpful with respect to the sequence of events. The information provided to me in the conference confirms that Mr Selth initiated action to lodge this application in a sufficiently timely manner, and then pursued his application in an appropriate manner such that the delay was the result of representative error. Additionally, the information provided to me, appears to disclose deficiencies in the NUW systems which go to the records that have been kept, the processes followed and the absence of awareness on the part of the NUW National office, of the involvement of a South Australian-based Organiser in the termination interview. Whilst these concerns may give rise to questions of competence and the need for the NUW to review the basis upon which the application has been lodged, I am satisfied that the delay in this instance is a consequence of representative error.
[14] The long standing approach3 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. In this case Mr Selth approached his union relative to the termination of his employment within 10 days of that termination. He gave instructions to lodge the application on 26 October 2015 and followed up two days later. In these circumstances, I am satisfied that Mr Selth’s actions mean that the effect of the NUW’s representative error favours an extension of time. Appropriate account must be taken of the overall circumstances and the conduct of the applicant.4 Consequently, in reaching this conclusion I have taken into account all of the actions on the part of Mr Selth which are central to the question of whether there is an acceptable reason for the delay.
[15] I have noted that, apart from lodging this application, Mr Selth did not take any other form of action.
[16] No prejudice to the respondent in this matter has been argued, but this, of itself, cannot represent a basis for an extension of time.
[17] In terms of the merits of the application, the limited information available to me indicates that Mr Selth was dismissed on a summary basis after an investigation into allegations of misconduct made against him. Notwithstanding this, information about the detail of the process followed by SA Group Enterprises is not before me. Consequently, I have regarded the merits of the matter as a neutral factor with respect to the extension of time issue.
[18] In terms of considerations of fairness between Mr Selth’s circumstances and those of other persons in similar positions, I have considered a number of comparable authorities which have dealt with the issue of representative error. In M N Robinson v Interstate Transport Pty Ltd 5 a Full Bench detailed the same approach which I have set out above, in the following terms:
“[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.”“
(references omitted)
[19] In Robinson, the Full Bench addressed the particular circumstances of that matter in the following terms:
“[29] We find that the Commissioner erred in diminishing the significance of the representative error on the basis that Mr Robinson was inactive between 13 May 2010 and 18 June 2010.
[30] Mr Robinson arranged legal advice three days after the termination of his employment. At that time Mr Robinson requested that Mr Tayler prepare a client agreement for his consideration and upon receiving the agreement, he executed the agreement on 13 May 2010, within a week of its receipt. On the day he executed the agreement, Mr Robinson instructed Mr Tayler to file a general protections application on his behalf. It is unsurprising that Mr Robinson, having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative’s requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of providing clear instructions to Mr Tayler to lodge his application.
[31] As noted by a Full Bench in D La Rosa v Motor One Group Pty Ltd, in the context of s.170CE of the WR Act:
“As is evident from Clarke, little might be required to satisfy the Commission that the applicant was blameless in the delay. In the context of a relatively short delay, it may simply be a matter of establishing that the applicant gave instructions to lodge [in this case] a Notice of Election and thereafter left matters in the hands of his or her representative.”
[32] For these reasons we are satisfied that Commissioner Simpson erred in his approach to representative error and his findings as to Mr Robinson’s conduct in that regard. This error led to an ultimate conclusion which was unsupported by the facts and which resulted in a decision which was plainly unjust to Mr Robinson in circumstances where he had acted promptly to obtain legal representation and instructed his legal representative to file his application. We are satisfied that the Commissioner erred in the sense of House.
[33] Accordingly, we grant permission to appeal, uphold the appeal and quash the decision of Commissioner Simpson in [2011] FWA 696.”
(references omitted)
[20] In Hoang v WMS Gaming Australia Pty Ltd 6 the applicant made contact with the representative in the second week after the dismissal took effect and consequently promptly concluded a costs agreement with that representative. In Finlayson v Western Health7 the applicant gave instructions to lodge the application within seven days of the employment termination and was found to have acted appropriately to pursue the matter. In Combes v Lee Crane8 there was no apparent dispute that the applicant had acted properly in the matter and that the delay was entirely the fault of the representative. In Clement v Grange Aged Care9 the applicant contacted a union immediately following the termination of employment and persistently followed up on the application. In Varcoe v ACE Insurance10 the applicant gave instructions with respect to the lodgement of an application and entered into a costs payment arrangement within nine days of the termination of employment taking effect. I have concluded that these authorities confirm that a conclusion to extend the time for the lodgement of Mr Selth’s application in these circumstances would be appropriate.
Conclusion
[21] For the reasons I have set out above, I am satisfied that Mr Selth’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and, accordingly, the application will be referred for conciliation. An Order (PR574284) reflecting this decision will be issued.
Appearances (By telephone):
H Miflin representing the applicant.
C Nihill representing the respondent.
Hearing (Conference) details:
2015.
Adelaide:
November 25.
1 Form F2, para 1.4
2 [2011] FWAFB 975
3 amongst other matters, Clark v Ringwood Private Hospital (1997) 74 IR 413
4 see for example Clark v Ringwood Private Hospital Print S5279 and Comcare v O’Hearn [1993] 119 ALR 85
5 [2011] FWAFB 2728
6 [2014] FWC 930
7 [2014] FWC 6076
8 [2015] FWC 3930
9 [2015] FWC 315
10 [2015] FWC 2805
Printed by authority of the Commonwealth Government Printer
<Price code C, PR574283>
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