Catherine Motteram v Serco Australia Pty Ltd
[2018] FWC 2087
•13 APRIL 2018
| [2018] FWC 2087 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Catherine Motteram
v
Serco Australia Pty Ltd
(U2018/913)
COMMISSIONER PLATT | ADELAIDE, 13 APRIL 2018 |
Application for relief from unfair dismissal – extension of time – representative error – exceptional circumstances – application granted.
Summary
[1] Ms Catherine Motteram has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Serco Australia Pty Ltd (Serco) which her form F2 Unfair Dismissal Application advised took effect on 3 January 2018.
[2] Ms Motteram filed her unfair dismissal application in the Commission on 30 January 2018. Ms Motteram’s application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:
“1. The Applicant concedes that this application has been made six (6) days out of time, and respectfully requests the Fair Work Commission (Commission) allow a further period of time, pursuant to paragraph 366(1)(b) of the Fair Work Act 2009 (Cth.) (the Act), for this application to be made.
2. The Applicant relies on the existence of exceptional circumstances, including representative error, which ground an extension of time, and submits that it would be manifestly unfair on the Applicant should it refuse to exercise its discretion to extend time.
3. On 3 January 2018, the date on which the Applicant was notified of her dismissal, the Applicant consulted Dismissals Direct Pty Ltd (Unfair Dismissals Direct), the Applicant’s representative, by telephone, stating that she wished to challenge the Respondent’s decision to terminate her employment.
4. On 8 January 2018, Mr Tim Rizzuto, Industrial Relations Specialist with Unfair Dismissals Direct, sent an email to cmott[redacted] seeking the provision of further information and documentation from the Applicant in respect of the termination of her employment. It subsequently came to the attention of Unfair Dismissals Direct, on 29 January 2018, that this email address did not belong to the Applicant, but instead belonged to an individual by the name of Camille Motteram who is unrelated to the Applicant. As a result, the Applicant never received the request for documentation and information that Mr Rizzuto thought he had sent to her on 8 January 2018.
5. On 19 January 2018, the Applicant made further telephone contact with Unfair Dismissals Direct. The Applicant stated she was “having trouble with the website to lodge the application” and a message was communicated to Unfair Dismissals Direct to this effect.
6. On 25 January 2018, Unfair Dismissals Direct received a further telephone call from the Applicant which stated that the Applicant “is very frustrated as she says she has called 5 times with no response and tried to fill out the online form but as the section for the date does not work she cannot complete the form”.
7. Unfair Dismissals Direct is aware of other potential clients who have also experienced technical issues with the date field on the online form on its website, and as recently as today, 30 January 2018, has received telephone calls from prospective clients stating that they have been unable to submit documents or complete the online form on its website. In response, Unfair Dismissals Direct has constructed a revised online form, which it is intended will replace the existing online form on 1 February 2018.
8. On 29 January 2018, Unfair Dismissals Direct, attempted to send the Applicant an email following up on her matter. The email stated:
Dear Ms Motteram
You were sent an email (below) on 8 January 2018 requesting further information relating to your potential claim.
We did not receive any documents.
There is a 21 day time limit for bringing claims under the fair work act. It appears that this deadline has now passed.
Have you filed a claim?
Please advise.
9. Unfair Dismissals Direct received an email from one Camille Motteram informing us that cmott[redacted] did not belong to the Applicant. Further enquiries revealed the Applicant’s correct email address to be ctmott[redacted], the email address that appeared on this application form.
10. Further enquiries made internally within Unfair Dismissals Direct leads us to believe that the email address was incorrectly taken down on 3 January 2018.
11. Telephone contact was made with the Applicant for the first time on 30 January 2018. The Applicant instructs:
(i) She did at all times until 30 January 2018 (erroneously) believe that Unfair Dismissals Direct was the Fair Work Commission, that she was initiating contact with the Fair Work Commission, and that completing the online form on the Unfair Dismissals Direct website amounted to lodging an application for unfair dismissal against the Respondent. However, due to technical issues with the Unfair Dismissals Direct webform, she was unable to lodge the claim;
(ii) She received notification of her dismissal during a meeting with the Respondent’s management on 3 January 2018, even though the letter of termination is dated 2 January 2018;
(iii) She attempted to contact Unfair Dismissals Direct on the following dates:
(a) 3 January 2018 (telephone);
(b) 8 January 2018 (telephone);
(c) 10 January 2018 (attempted the online form using a different computer, without success);
(d) 12 January 2018 (attempted the online form using a different “URL”, without success);
(e) 15 January 2018 (telephone);
(f) 19 January 2018 (telephone);
(g) 23 January 2018 (telephone);
(h) 25 January 2018 (telephone);
(i) 29 January 2018 (telephone – provided correct email address).
12. The Applicant provided documentation to Unfair Dismissals Direct via email on 30 January 2018, and formally engaged Unfair Dismissals Direct as her paid agent that same day.
13. The Applicant suffers from a medical condition as per the certification of a registered medical practitioner, and it is submitted this should be taken into account – in addition to the information contained in the above paragraphs, in the Commission’s determination of whether exceptional circumstances exist to warrant its exercise of discretion to extend time.”
[3] On 16 February 2018, Serco lodged a form F3 Employer Response and form F4 Objection to Unfair Dismissal Application and raised a jurisdictional objection on the basis that the application was lodged out of time. This decision only deals with the extension of time issue.
[4] A conciliation conference was conducted on 26 February 2018 but did not resolve the matter.
[5] On 14 March 2018, my Associate corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 11 April 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Ms Motteram was directed to provide a statement concerning the extension of time and any documents to be relied upon by 28 March 2018. Serco was invited to file any material in reply by 4 April 2018.
[6] On 6 April 2018, Unfair Dismissals Direct filed a form F54 Notice of Representative Ceasing to Act.
[7] On the same day, Ms Tamina Sarwari of Limestone Law Pty Ltd commenced to act for Ms Motteram and sought an extension of time to file their material. The Commission extended the time to 4.00pm 9 April 2018. Ms Sarwari filed her material 2 hours late. Serco objected to the late material being received. I note that the material filed is consistent with the extension of time argument contained in the form F2 Unfair Dismissal Application and I determined to receive the late submission.
[8] Serco filed a response on 10 April 2018.
[9] A hearing was conducted by way of telephone conference on 11 April 2018. A sound file record of the telephone conference was kept. Ms Motteram was represented by Ms Sarwari of Limestone Law Pty Ltd and Mr Colin Graham represented Serco. Permission was granted to Ms Sarwari pursuant to s.596(2)(a) of the Act. Both parties relied on the submissions filed with some amplification by Ms Sarwari.
Submissions
[10] The submissions of Ms Motteram (including the witness statement of Ms Motteram and Mr John Bingham from Unfair Dismissals Direct) are relevantly summarised as follows:
• The dismissal took effect on 3 January 2018.
• On 3 January 2018, Ms Motteram contacted Unfair Dismissals Direct by telephone.
• On 10 January 2018, Ms Motteram attempted to complete an online application on the Unfair Dismissals Direct website. Issues with the website (which have been acknowledged by Unfair Dismissals Direct) prevented the information from being recorded.
• On 12 January 2018, Ms Motteram again tried to load the information onto the Unfair Dismissals Direct website. The website problems had not yet been rectified and the information was not recorded.
• On 15 January 2018, Ms Motteram contacted Unfair Dismissals Direct via telephone and explained her difficulties.
• Ms Motteram contacted Unfair Dismissals Direct again on 19, 23, 25 and 29 January 2018 via telephone.
• On 30 January 2018, Ms Motteram was advised by Mr Bingham from Unfair Dismissals Direct that their website had technical difficulties and that they had tried to correspond with Ms Motteram but Unfair Dismissals Direct had incorrectly completed her email address.
• The application was lodged by Mr Bingham on 30 January 2018, six days out of time.
[11] Serco’s position is relevantly summarised as follows:
• Ms Motteram did not complete the binding retainer until 30 January 2018.
• The existence of administrative confusion or oversight by a professional service provider does not represent exceptional circumstances.
Applicable Law
[12] Section 394 of the Act 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.”
[13] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd1which 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.”
Consideration
[14] This unfair dismissal application by Ms Motteram was made 6 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
[15] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
The reason for the delay and action taken by the person to dispute the dismissal
[16] It would appear that in some instances paid agents acting in unfair dismissal matters adopt a process where interaction by telephone or face-to-face is minimised in favour of automated online data entry processes and minimal contact post receipt of instructions. Whatever the reasons for such practices, they carry the risk of an applicant or prospective applicant being unsure of or unable to progress their matter in an efficient or timely manner particularly where the systems break down.
[17] It appears that Ms Motteram’s original representative from Unfair Dismissals Direct failed to respond in an appropriate or timely manner to give effect to her desire to contest the dismissal as advised on 3 January 2018.
[18] I accept that the Unfair Dismissals Direct website was not functioning correctly when Ms Motteram sought to provide the information to her original representative.
[19] I accept that Unfair Dismissals Direct did not appropriately respond to Ms Motteram’s telephone calls.
[20] As I understand it Unfair Dismissals Direct processes are such that formal instructions to proceed are not obtained until the factual matrix has been advised and payment is made. It appears that the website issues and communications failure contributed to the delay in these instructions being received and acted upon.
[21] I accept that it was not until Ms Motteram had a conversation with Mr Bingham on 30 January 2018 that her claim was actively pursued by Dismissals Direct and lodged on the same day. Dismissals Direct have appropriately provided a statement acknowledging these failures.
[22] It is a well-established principle that, 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.2 In such a case, a distinction is drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.3 The conduct of the applicant is a central consideration.4
[23] The facts reveal the existence of representative error and that Ms Motteram took an active role in following up her representative.
[24] If there is a credible explanation for the entirety of the delay then this weighs more heavily in favour of a finding that there are exceptional circumstances. 5
[25] I find that Ms Motteram has explained the reasons for the delay and actively disputed her dismissal.
Whether the person first became aware of the dismissal after it had taken effect
[26] There is no dispute that Ms Motteram was aware of the dismissal on the day it occurred.
Prejudice to the employer (including prejudice caused by the delay)
[27] There is no submission that the granting of an extension of time represents prejudice to Serco.
The merits of the application
[28] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.
Fairness as between the person and other persons in a similar position
[29] Consideration of fairness relative to other persons in similar positions is a neutral factor.
Conclusion
[30] For the reasons I have set out above, I am satisfied that Ms Motteram circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and the application will accordingly be referred to an alternate member for hearing of the merits. An Order6 reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
Ms T Sarwari of Limestone Law Pty Ltd on behalf of the Applicant.
Mr G Colin on behalf of the Respondent.
Hearing (Conference) details:
2018.
Adelaide:
April 11.
Printed by authority of the Commonwealth Government Printer
<PR601927>
1 [2011] FWAFB 975
2 Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420
3 Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420
4 Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420
5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901
6 PR601928
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