Cameron Roebuck v Shopping Centres Australasia Property Group Re Limited

[2021] FWC 6517

[2021] FWC 6517

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Cameron Roebuck
v
Shopping Centres Australasia Property Group Re Limited
(C2021/6458)

DEPUTY PRESIDENT MANSINI MELBOURNE, 8 DECEMBER 2021

General protections dismissal dispute - application filed out of time – circumstances not exceptional – application dismissed.

[1] This decision concerns an application by Mr Cameron Roebuck (Applicant) for the Commission to deal with a general protections dispute involving dismissal from his employment with Shopping Centres Australasia Property Group Re Limited (Company), made under s.365 of the Fair Work Act 2009 (Cth) (Act).

[2] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). It is not contentious that this application was filed some 32 days out of time. The Applicant’s representative acknowledged that the delay was significant, but contended it was due to his own error and asked the Commission to grant a further period for the application to be made under s.366(2). The Company opposed.

[3] Not being satisfied that there are exceptional circumstances taking into account the factors at s.366(2), I have determined not to allow Mr Roebuck a further period within which to lodge and the application is therefore dismissed. The reasons follow.

The evidence

[4] Mr Roebuck did not give evidence and did not attend the hearing. His representative, a Mr Aaron Potts, is an Australian legal practitioner and currently practising solicitor at Morgan Alteruthemeyer Legal Group. Mr Potts: filed submissions; filed 3 witness statements in support of the request for an extension of the time for filing (on 17 November 2021, 18 November 2021 and during the course of the hearing on 2 December 2021); and was not required for cross-examination but made further submissions at the hearing. There were submissions filed, and some documents tendered, but no evidence filed on behalf of the Respondent. A short summary of the evidence follows.

[5] Mr Roebuck was notified that his role as WA Regional Leasing Manager for the Respondent was redundant in a meeting, which was subsequently confirmed by email of 28 July 2021. That email attached a letter dated 29 July 2021 which expressly stated that Mr Roebuck’s employment would end with immediate effect, his notice period was one month and instead of working that notice he would be paid an amount in lieu (Redundancy Letter). 1

[6] On 3 August 2021, Mr Roebuck’s final payment was made. 2

[7] Also on 3 August 2021, Mr Roebuck approached Morgan Alteruthemeyer Legal Group regarding his termination. 3

[8] On 13 August 2021 (at 11.04am), Mr Potts emailed Mr Roebuck regarding his redundancy matter. That email is before the Commission and partly redacted (on account of claimed legal professional privilege, which was not opposed) but included the following:

It is important to know the limitation period to proceed with these claims:

1. Adverse action – 21 days – 19 August 2021; and

2. Wrong full dismissal due to discrimination – 12 months – 29 July 2022. 4

[9] Also on 13 August 2021 (at 12.44pm), Mr Roebuck provided a copy of the Redundancy Letter to Mr Potts by email. 5

[10] Mr Potts gave evidence that he had a conversation with Mr Roebuck on 18 August 2021 in which:

..it was communicated to him that we were hoping to have the draft proceedings ready soon and there was a general discussion about the notice period. The Applicant said he was still on his one month’s notice period, but this was misconstrued by me to the effect that I thought he was still working within his notice period. On this basis, I advised the Applicant that his employment period would end on 29 August 2021 and that to bring any application prior to that date would be premature as the date was not effective at that time. 6

[11] During the hearing of this matter there was an adjournment so that Mr Potts could produce what he described as two file notes dated 18 August 2021 (although privilege was claimed as the reason for not producing these records earlier, neither was redacted). The Company did not oppose the further materials. I have determined to receive that evidence, with some caution (as indicated below).

a) The first file note was marked as a telephone attendance of 18 August 2021 (the time of the discussion was not recorded) and said:

I told Cameron that I reviewed it and the time period actually ran from his last day of employment, which is 21 days from his last day, he told me that he had given his notice period of one month. That gives us effectively another 4 weeks. I said I would draft an application and I wanted him to review it. He said that maybe we should write to them and ask for a better offer. I said I would consider it and there is no harm in writing to them about our concerns about the way he has been terminated. 7

b) A second file note was produced which appeared to be an internal record and was also dated 18 August 2021, which said:

As per section 386 of the Fair Work Act (2009), the date of termination is not the date of the termination letter but rather when the employment relation ceases, which will be deemed to be his last day of employment, which with 1 months’ notice should be 29 August 2021. 8

[12] Also on 18 August 2021 (at 5.16pm), Mr Potts emailed a draft application to Mr Roebuck. That email said:

As discussed today, please find attached a copy of the draft Application to the Fair Work Commission. Please review and pay particular attention to section 3.1 of the application, as part are likely to incorrect. I will draft the letter tomorrow.

[13] On 30 August 2021, Mr Potts wrote to the Company’s lawyers to convey a “without prejudice” offer and a response was received the following day. 9 The parties also exchanged correspondence about a request for records on 10, 16 and 17 September 2021 – the request for records was made with reference to an employer’s obligation to keep certain records.10

[14] On 20 September 2021 (at 2.23pm), a “Form F8 -General protections application involving dismissal” was lodged with the Commission’s Perth Registry by email. The form was signed by Mr Potts, dated 20 September 2021, and included the following statement:

5. On 29 July 2021 the Applicant was called into the office of Leigh Dunn and told he was terminated as he had been made redundant.

[15] On 24 September 2021 (at 2.03pm), Mr Potts emailed the Commission’s Registry in which he said that the “incorrect draft” of the application had been filed and a “correct draft” was attached with a request that it be substituted for the earlier version, after which time the filing fee would be paid. The “correct” form was signed by Mr Potts, dated 20 September 2021, and included the following amendment to the statement extracted above:

5. On 29 July 2021 the Applicant was called by microsoft teams for an online meeting with Leigh Dunn and Helen Voss who are located in Sydney and the Applicant was told he was terminated as he had been made redundant effective immediately. This was not done in line with the Respondent’s procedures and in accordance with the Fair Work Act 2009.

[16] Both versions of the application indicated that the application was made within 21 calendar days of the dismissal taking effect.

[17] The parties participated in a conciliation before a staff conciliator on 1 November 2021 and as no resolution was reached, the matter was allocated for determination of Mr Roebuck’s request for an extension of the statutory time for filing. Directions were issued on 8 November 2021 for the filing of evidence and submissions in relation to the jurisdictional issue. At the hearing, on 2 December 2021, both parties sought and were granted permission to be represented pursuant to s.596 of the Act.  

Was the application filed outside the statutory timeframe?

[18] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

[19] The effective date of a dismissal is a question of fact to be determined by reference to the evidence. A dismissal takes effect when it is communicated to the employee who is being dismissed, in plain and unambiguous words or conduct. 11

[20] On the records before the Commission, it would appear that Mr Roebuck was emailed the Redundancy Letter on 28 July 2021 not 29 July 2021. The 28 July 2021 email referred to a discussion earlier that day in which the contents of the letter were discussed. However, noting that the attached Redundancy Letter was dated 29 July 2021, for present purposes I accept the mutual contention that the effective date was 29 July 2021.

[21] The evidence also establishes that an incorrect draft of the application was filed on 20 September 2021 but that the applicant’s representative sought to substitute this for a correct draft that was not filed until 24 September 2021 and requested not to pay the filing fee until after the substituted application was accepted. Whilst arguably the application was not made until 24 September 2021, as it was not contested and would only extend the period of delay, for present purposes I accept that the application was filed on 20 September 2021.

[22] Accordingly, the period of 21 days ended at midnight on 19 August 2021 and the application was filed 32 days out of time.

Are there exceptional circumstances?

[23] Having established that the application was filed 32 days after the expiry of the statutory timeframe, the application can only proceed if the Commission is satisfied that there are ‘exceptional circumstances’.

[24] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 12 Exceptional circumstances may 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 can be considered exceptional.13

[25] The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[26] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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.

[27] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.

Reason for the delay – s.366(2)(a)

[28] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however all of the circumstances must be considered. 14

[29] Mr Potts, on behalf of Mr Roebuck who was not present at the hearing, accepted that the application was filed 32 days late and this was a significant delay. Mr Potts urged the Commission to find that the only reason for the delay was his representative error in “misconstruing” the instructions of Mr Roebuck and that Mr Roebuck was “blameless”.

[30] The Company contended that this did not reasonably explain the delay in circumstances where Mr Roebuck was initially given the correct advice, was aware of the 21 day time limitation at an early stage, had been employed in a very senior role with sophisticated knowledge and experience in dealing with commercial contracts and tight timeframes and provided with a draft application yet did not give the necessary instructions to file within the statutory timeframe and acted against the advice of his representative. The Company did not object to the receipt of new evidence during the course of the hearing, or level any particular criticism at Mr Potts, but identified the sparsity of the telephone attendance record and inconsistencies with the earlier witness statement of Mr Potts.

[31] A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application for an extension of time. 15 In Clark v Ringwood Private Hospital,16 a Full Bench decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

•  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;

•  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;

•  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; and

•  Error by an applicant’s representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted. 17

[32] It is not necessary for an applicant to demonstrate that they were ‘blameless’ for the delay in filing a dismissal related application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion. 18 However, as the Full Bench explained in Long v Keolis Downer,19 “an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by”. In this context, it is not necessary for the representative to have provided an acceptable explanation for its conduct.20

[33] On behalf of Mr Roebuck, Mr Potts asked the Commission to accept that the lengthy delay occurred because he “misconstrued” the instruction by telephone of 18 August 2021. He pressed this submission notwithstanding the evidence that:

•  Mr Potts’ had previously (on 13 August 2021) been provided with the Redundancy Letter which, on its face, plainly conveyed an effective dismissal date of 29 July 2021 (which the Company accepted is correct);

•  after 5pm on 18 August 2021, an email was sent to Mr Roebuck which referred to a prior discussion and attached a draft application which Mr Potts or his firm had prepared - being within 21 days of 29 July 2021; and

•  the “correct” application, which was completed by Mr Potts and filed with the Commission on 24 September 2021, informed the Commission that the dismissal was effective immediately on 29 July 2021.

[34] These documentary records reflect that the applicant’s representative had the necessary information and was not in fact operating under a false impression as to the effective date of dismissal. Accordingly, I find the contended reason for the delay to be implausible, not established by the documentary records and decline to accept it as an acceptable, reasonable or credible reason for the delay.

[35] However, even if the applicant’s case were to be accepted on its face then at its highest Mr Roebuck gave incorrect instructions by the telephone discussion of 18 August 2021 which his representative then proceeded upon. If that were so, then it would seem that Mr Potts erred in failing to make the proper inquiries given the inconsistency between the plain content of the Redundancy Letter and Mr Roebuck’s subsequent oral instructions of 18 August 2021.

[36] Nonetheless the conduct of the applicant is a central consideration in a case of this kind. Mr Roebuck did not present evidence of his conduct to the Commission and so this consideration proceeds on what can be ascertained of the applicant’s conduct, by the evidence of his representative. On the case as it was presented, I am not persuaded that Mr Roebuck had given appropriate instructions in a timely manner and was then entitled to entrust his solicitor to act with the level of diligence that might otherwise be expected. Indeed, Mr Roebuck was given the correct advice initially and was made aware of the short timeframe for filing – in writing and with ample time to meet the statutory timeframe. Further, there is evidence that the application was in fact drafted and provided to Mr Roebuck on 18 August 2021, within 21 days of the effective date of his dismissal such that Mr Roebuck was in a position to ensure that it was filed within 21 days of 29 July 2021.

[37] I have carefully considered the particular circumstances of this case. The delay is lengthy. When all of the circumstances are considered, either individually or together, I do not consider there to be a reasonable, acceptable or credible explanation for the delay in this case. This consideration weighs strongly against a finding of exceptional circumstances.

Action taken to dispute the dismissal – s.366(2)(b)

[38] In respect of s.366(2)(b), I am required to take into account any action taken by Mr Roebuck to dispute the dismissal or to place the employer on notice of his intention to dispute the dismissal.

[39] Mr Potts gave evidence to the Commission that he made a without prejudice offer to the Company’s representative prior to filing this application. That correspondence is not before the Commission and the evidence does not establish what the offer was expressed to be in resolution of (a dismissal related claim or some other claim).

[40] There is also evidence of requests for information initiated by Mr Roebuck’s representative. That correspondence is before the Commission and relates to a request to access employee records of performance review(s) and self-assessment(s). There is no reference to an intention to make a claim including to dispute the dismissal.

[41] To the extent that this amounts to some action taken to place the Company on notice that the dismissal would be disputed, in the particular circumstances of this case I consider this weighs only slightly in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer – s.366(2)(c)

[42] The Company contended that it agreed to participate in conciliation which failed to resolve the matter and consequently it has incurred, and faces the risk of further incurring, legal costs and disruption in responding to a claim which “lacks merit”.

[43] I am not able to identify any prejudice of a kind that would weigh against a finding of exceptional circumstances. However the mere absence of prejudice is not in my view a factor that would point in favour of the grant of an extension of time. I consider this a neutral consideration.

Merits of the application – s.366(2)(d)

[44] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[45] The merits of the application ultimately turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any detailed assessment of the merits. I consider the merits to be, at best, a neutral consideration.

Fairness as between the person and other persons in a similar position – s.366(2)(e)

[46] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[47] For the above reasons, Mr Roebuck did not file this application within the statutory timeframe.

[48] Having regard to the matters I am required to take into account under s.366, I am not satisfied that the requisite exceptional circumstances exist. The absence of an acceptable, reasonable or credible explanation weighs strongly against and, to the extent there was any action taken to dispute the dismissal it weighs only slight in favour of, a finding of exceptional circumstances. The other factors are at best neutral. In my view, and on balance taking into account all the matters at s.366, the circumstances of this case are not exceptional.

[49] For the above reasons, I have determined to not grant an extension of time under s.366(2). Accordingly, the application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr A. Potts for the Applicant.

Mr D. Ward for the Respondent.

Hearing details:

2021.

Melbourne (by Video).

2 December.

Printed by authority of the Commonwealth Government Printer

<PR736461>

 1   Second Statement of Aaron Potts at 2, 3 and AP7.

 2   Annexure D of Respondent’s Outline of Submissions.

 3   Second Statement of Aaron Potts at 3.

 4   First Statement of Aaron Potts at AP1.

 5   Second Statement of Aaron Potts at 3 and AP7.

 6   First Statement of Aaron Potts at 3.

 7   First attachment to the Third Statement of Aaron Potts.

 8   Second attachment to the Third Statement of Aaron Potts.

 9   First Statement of Aaron Potts at 4.

 10   First Statement of Aaron Potts at AP3.

 11   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [24] and Plaksa v Rail Corporation NSW [2007] AIRC 333 (Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne Print Q9605 (AIRC, Whelan C, 10 December 1998)

 12   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 13   Ibid.

 14   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 15   See, for example, Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1; Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728; Qantas Ground Services Pty Ltd t/a QGS v Rogers[2019] FWCFB 2759 (QGS v Rogers); Melios v Qantas Airways Ltd[2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd[2011] FWA 2802; Long v Keolis Downer[2018] FWCFB 4109 as cited in [2020] FWC 3033.

 16 (1997) 74 IR 413 at 418-419.

 17   As summarised in Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1.

 18 QGS v Rogers at [17].

 19   [2018] FWCFB 4109 at [60].

 20 QGS v Rogers at [16].