Chloe Taylah Robinson v Electricity Networks Corporation T/A Western Power
[2022] FWC 673
| [2022] FWC 673 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Chloe Taylah Robinson
v
Electricity Networks Corporation T/A Western Power
(U2022/2428)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 1 APRIL 2022 |
Application for an unfair dismissal remedy – out of time – dismissed.
On 24 February 2022, Ms Chloe Robinson (the Applicant) applied for an unfair dismissal remedy having been dismissed from Electricity Networks Corporation T/A Western Power (the Respondent) on 22 January 2022. The Respondent objects to the application on the basis that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with that objection.
Section 396 of the Act provides that the Fair Work Commission (the Commission) must determine four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other three preliminary matters are not presently relevant.
It is not contested by the Applicant that the unfair dismissal application was made out of time. For the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(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.[1]
The issue before me is whether the circumstances in this matter are exceptional, and whether it is fair and equitable for an extension to be granted.
The parties requested that I determine the matter on the papers. Having considered the materials filed and the views of the parties, I determined this to be the appropriate course in light of s 577 of the Act.
Background
The Applicant was employed on 22 January 2018, as a line worker apprentice under a maximum term contract aligned to her training contract for a period of four years.
The Applicant was notified of her dismissal on 8 December 2021, it took effect on 22 January 2022, and her unfair dismissal application was made on 24 February 2022. The Applicant concedes that her application was made 12 days outside the 21-day time limit provided by s 394 of the Act.
According to the Applicant, the Respondent failed to renew her fixed term contract which was inclusive of an end date of 22 January 2022.
As to why her unfair dismissal application was 12 days late, the Applicant provided the following explanation.
The Applicant explained that as Western Power is a Western Australia state-owned body, she initially believed the Western Australian Industrial Relations Commission (WAIRC) was the correct jurisdiction in which to lodge an application.
On 17 January 2022, the Applicant telephoned the Fair Work Commission for procedural advice. The registry staff member asked for the Respondent’s Australian Business Number (ABN) to check if the Fair Work Commission was the correct jurisdiction to file an application in. The Applicant states that after she provided the Fair Work Commission with the ABN, she was told that the Respondent was not in its jurisdiction and that she should proceed in the WAIRC.
On or around 19 January 2022, the Applicant sought legal advice from Sou’ West Legal Services, a law firm based locally in Busselton.
Sou’ West Legal Services were unable to assist the Applicant as they did not practise in employment law. However, they referred the Applicant to several Perth-based firms who they said may be able to assist.
The Applicant contacted the law firms that she had been referred to, however they were either unable to assist or did not return her enquiries. The Applicant states she contacted MDC Legal on 26 January 2022, MKI Legal on 27 January 2022 and McAuliffe Legal, Shaddicks Lawyers, and Hale Legal on 3 February 2022.
As noted, on 3 February 2022 the Applicant contacted Hale Legal, the firm responded and on 10 February 2022, the Applicant engaged the firm’s services to file an unfair dismissal application on her behalf.
Both the Applicant and her representatives believed that the WAIRC was the correct jurisdiction. The Applicant's representatives were not of the view that the Respondent was a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth.
On 17 February 2022, an unfair dismissal application was filed in the WAIRC on behalf of the Applicant.
The Respondent filed its response in the WAIRC on 18 February 2022, raising the issue of jurisdiction. The Respondent’s response was not received by the Applicant's solicitors until 22 February 2022.
On 23 February 2022, the Applicant’s representatives wrote to the Respondent seeking clarification as to how the Respondent was a constitutional corporation.
On 24 February 2022, the Respondent wrote to the Applicant’s representatives explaining its basis of how it satisfies the definition of trading corporation under the Act.
The Applicant states that shortly after she received the Respondent’s letter on 24 February 2022, she filed her unfair dismissal application in the Fair Work Commission that same day.
Consideration
The Commission holds discretion to extend the 21-day period set by the Act for making an application for an unfair dismissal remedy. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[2]
In the decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty)[3] the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains a discretion to grant or refuse an extension of time.[4] Whilst Nulty considered the general protection provisions of the Act, its reasoning is applicable to s 394(3) of the Act. The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[5] 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 can be considered exceptional.[6]
In the decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[7] the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1) of the Act, the observation remains relevant:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[8]
In the directions issued to the parties they were referred to s 394(3) of the Act.
Reasons for the delay in filing the application
Consideration turns to whether the Applicant has provided a credible reason for the whole of the period that her application was delayed.[9] The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.[10] It does not include the period from the date of the dismissal to the end of the 21-day period. The circumstances from the time of the dismissal, however, are 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.[11]
The Applicant gave evidence that she had been advised by her legal representative that the Respondent was a state entity, which had led her to believe that the WAIRC was the correct jurisdiction in which to lodge her application.
Several decisions have traversed the issue of where representative error has factored in the unfair dismissal application being lodged late. In those cases, it is accepted that the conduct of the applicant is to be examined.[12]
In Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service,[13] a Full Bench decision that considered an out of time application under s 365 of the Act, but is apposite for present purposes, the majority stated:
Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital (Clark) remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:
(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 exits 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.
(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.[14].
In Robinson v Interstate Transport Pty Ltd,[15] the Full Bench again endorsed the approach taken in Clark:
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 v Ringwood Private Hospital (1997) 74 IR 413 (‘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 Print Q0784 in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell v A & PM Fornataro t/a Tony's Plumbing Service[2011] FWAFB 466 found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act; McConnell v A & PM Fornataro t/a Tony's Plumbing Service[2011] FWAFB 466, at para [35]. 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.
The Applicant has argued that her application was filed late with the Commission due to trying to establish the correct jurisdiction in which to bring an unfair dismissal claim. The Applicant submitted that the initial advice she received indicated she was employed by a state entity, and therefore she initially pursued her claim within the framework required by law for the WAIRC.
The Respondent submits that there are no exceptional circumstances when one considers, among other factors, that the Applicant:
(a) correctly identified the instrument governing her terms and conditions, a document registered in the Fair Work Commission;
(b) was notified six weeks prior to the expiry of her contract of employment that it would reach expiry and not be extended. Despite this reminder, the Applicant took over 21 days to make the application to the WAIRC, indicating a lack of urgency or priority placed on the matter.
Turning to the Respondent’s first point, included in the Applicant’s bundle of documents was her ‘Maximum Term Contract of Employment – Apprentice’ (Contract). Clearly, the Applicant was able to identify who employed her. Furthermore, throughout that Contract reference was made to ‘Schedule 1’. Schedule 1, which was included in the Contract, referred to the ‘Enterprise Agreement – Western Power and CEPU Enterprise Agreement 2013’. Furthermore, clause 7 of the Contract set out:
7. Enterprise Agreement
The Enterprise Agreement that is detailed in Schedule 1 (“EA”) currently applies to your employment. The EA may vary from time to time and, except for the provisions specifically referred to in this document, is not incorporated into your contract of employment with Western Power.
The approval decision for the Western Power and CEPU Enterprise Agreement 2013[16] (the Agreement) sets out that the application for the approval was made under the ‘Fair Work Act 2009’ and in the top right-hand corner of the document states ‘Fair Work Commission’.
The Agreement also makes specific reference to the Fair Work Commission at clause 2, the coverage clause, and at clause 27 of that Agreement, noting the Applicant was permitted to refer a dispute to the Fair Work Commission for conciliation.
There is no suggestion that the Applicant never received the Contract. The Applicant had been informed in the Contract that she was covered by a federal enterprise agreement. Notwithstanding, there is no evidence that she instructed her solicitors that this was the case or that she considered the point regarding the Agreement, prior to lodging her application in the WAIRC.
The Applicant was notified of her dismissal on 8 December 2021, and it took effect on 22 January 2022. Therefore, the Applicant was effectively provided with six weeks’ notice regarding the end date of her maximum term contract. However, at the time the Applicant made the application in the WAIRC, she had already exceeded the statutory period set by s 394(2) of the Act by three days.
That is not to say that before the end date of her employment the Applicant had not taken any steps to seek guidance about the lodging of an unfair dismissal claim.
The Applicant stated that she telephoned the Fair Work Commission for procedural advice on 17 January 2022 and was asked by registry staff for the Respondent’s ABN to check if the Fair Work Commission was the correct jurisdiction. There is no evidence to suggest that the Applicant informed registry about the Agreement coverage. The Applicant states that after she provided the Fair Work Commission with the ABN, she was told that the Respondent was not in its jurisdiction and that she should proceed in the WAIRC. There is no direct evidence to support this assertion.
Furthermore, the Applicant states that on or around 19 January 2022, she sought legal advice from a law firm based locally in Busselton, who, while declining her engagement as a client, referred the Applicant to other firms. However, it was not until 26 January 2022 the Applicant corresponded with the first of those law firms – some four days after the end date of her employment.
As noted, on 3 February 2022 the Applicant contacted Hale Legal, it responded, and on 10 February 2022 the Applicant engaged its services to file an unfair dismissal application on her behalf. The Applicant has not explained why it took some seven days to engage Hale Legal after she had first contacted the firm, or the efforts she made to engage its services in the period between 3 February 2022 and 10 February 2022.
On 17 February 2022, some seven days after having engaged Hale Legal, a claim was filed in the WAIRC on behalf of the Applicant. No evidence has been provided as to the instructions and material the Applicant provided to Hale Legal, or the efforts the Applicant exerted to expedite the process.
The Respondent filed its response in the WAIRC on 18 February 2022, raising the issue of jurisdiction. The Respondent’s response was not received by the Applicant's solicitors until 22 February 2022. It is unclear why this was the case. Notwithstanding, on being informed by the Respondent twice (on 22 February 2022 and 24 February 2022 that the Applicant had brought claim before the incorrect jurisdiction), an unfair dismissal application was finally made with the Fair Work Commission on 24 January 2022.
There was information before the Applicant whilst employed and after her dismissal, to suggest that the Fair Work Commission was the relevant jurisdiction. I consider that it would have proved unproblematic for the Applicant to have checked the document that governed the terms and conditions of her employment. That same document, the Agreement, which can be located on the Fair Work Commission website, refers to the Act and the Commission - all of which are indicators that the Commission would likely have been the first port of call. However, it must again be reiterated that while indicative of a first port of call, such indicators are not determinative in and of themselves, of jurisdiction.
In such circumstances it cannot be said that the Applicant is blameless. Whilst it is evident that the Applicant went to some trouble to engage the services of a legal representative there are unexplained periods of delay as described above.
It is not the case that the error of the legal representative in filing a claim in the incorrect jurisdiction has been ignored. Evidently had the legal representative undertaken the simple step of reviewing the Contract, it too may have appreciated that whilst employed the Applicant was covered by a federal industrial instrument. Therefore, I am content to apportion part of the delay on the shoulders of the representative.
However, I do not consider that the representative error is a sufficient reason to extend the time within which an application for relief is to be lodged in and of itself. This is because part of the delay was occasioned by the conduct of the Applicant.
It has previously been expressed by this Commission that there is nothing exceptional about lodging an unfair dismissal application in the WAIRC when the application should have been lodged in the Commission.[17] In Welthy v J Factor Holdings Pty Ltd t/as South Beach Hotel[18] it was said ‘[I]t is not unusual for employees in Western Australia to confuse the WAIRC and Fair Work Commission’.[19] However, the proposition should not be read as a carte blanche statement that all applications mistakenly lodged in the WAIRC are by their nature unexceptional. Much will turn on the facts of the matter.
While representative error had bearing on the reason for the delay, I am not satisfied that the Applicant was blameless in her conduct. It is not apparent that the Applicant sought to address the perceived jurisdictional conundrum as a matter of urgency. Furthermore, I do not consider that the Applicant had a reasonable explanation for entire period of the delay.
The Applicant referred the Commission to the decision in Pritchard v Laserfax Pty Ltd ATF B& T Unit Trust T/A Scope Business Imaging,[20] (Pritchard) submitting that in that case the applicant was granted an extension of time after first lodging an application for unfair dismissal in the WAIRC. However, the circumstances in Pritchard are distinguishable to those before the Commission now. In Pritchard, the Commissioner observed that the employer entity was a trust, and the trading name did not contain the term ‘Pty Ltd’. However, unlike the current circumstances, the applicant in Pritchard had not received an employment contract stipulating coverage by a federal industrial instrument and prescribing that a dispute under that instrument could be brought to the Fair Work Commission.
I have considered the delay as the period beyond the 21-day period. However, regard has been had to the circumstances from the date the dismissal took effect. As noted, I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the whole period of the delay in lodging her unfair dismissal application. This weighs against a finding that there are exceptional circumstances.
Whether the Applicant became aware of the dismissal after it took effect
At all material times from the time the Applicant was notified of the end date of her employment until the date the unfair dismissal application was made, the Applicant knew her employment had ended. I consider this to be a neutral factor.
Action taken to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[21] I have considered all the evidence in this respect, including the lodgement of the unfair dismissal application in the WAIRC.
The Applicant engaged with the Respondent to seek clarity as to the status of her apprenticeship, having returned from leave and restricted duties to full duties. However, I do not consider that seeking clarity in respect of contractual arrangements constitutes action taken to dispute the dismissal.
Having considered the evidence and submissions of the Applicant and Respondent, I consider it to be a neutral factor.
Prejudice to the employer
I cannot identify any particular prejudice that the Respondent would incur if an extension of time were to be granted. I therefore consider this to be a neutral factor in the present case.
Merits of the application
The nature of the matter is such that consideration must be given to whether the application was made within the period required in s 394(2) of the Act and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.
In Kornicki v Telstra-Network Technology Group, [22] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said:
If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[23]
Concerning the substantive application, the merits have not been fully tested. This is not out of the ordinary. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time for an applicant to lodge their application.[24] The jurisdictional objection and the factual contentions and merits of the application more generally would need to be scrutinised if an extension of time were granted and the matter proceeded. It follows that I consider this criterion to be neutral.
Fairness between the person and other persons in a similar position
The Deputy President in Morphett v Pearcedale Egg Farm,[25] considered this criterion and said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[26]
I am satisfied that the issue of fairness as between the Applicant and other persons in a similar position is not a relevant consideration in the circumstances of this particular matter and is therefore a neutral factor in determining whether to grant an extension of time. I note in this respect my commentary at paragraph [51] of this decision, regarding the case of Pritchard.
Conclusion
I am not satisfied that there are exceptional circumstances having considered those factors in s 394(3)(a) to (f) of the Act. I do not consider that the Applicant was blameless with respect to the delay in making the application and all other factors are neutral.
Consideration also turns to whether it is fair and equitable that time should be extended. I have concluded this not to be the case in light of my above findings. Accordingly, I decline to grant the Applicant an extension of time and therefore this application for an unfair dismissal remedy must be dismissed. An Order[27] to that effect issues concurrently.
DEPUTY PRESIDENT
Final written submissions:
Applicant, 17 March 2022
Respondent, 22 March 2022
[1] Fair Work Act 2009 (Cth) s 394(3).
[2] Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989 [20].
[3] [2011] FWAFB 975.
[4] Ibid [15].
[5] Ibid [13].
[6] [2011] FWAFB 975 [13].
[7] [2018] FWCFB 901.
[8] Ibid [38].
[9] Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 408-9.
[10] Biliana Henderson v Hoban Recruitment Pty Ltd T/A HOBAN Recruitment[2016] FWC 5041 [10].
[11] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 [29] – [31].
[12] Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service[2011] FWAFB 466.
[13] Ibid.
[14] Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service[2011] FWAFB 466 [35].
[15] [2011] FWAFB 2728 [24] to [25].
[16] Electricity Networks Corporation T/A Western Power [2013] FWCA 7263.
[17] Ms Tomica Robertson v Zeugma Electrical & Communication Services Pty Ltd[2010] FWA 4525 [12].
[18] Welthy v J Factor Holdings Pty Ltd t/as South Beach Hotel[2016] FWC 1978.
[19] Welthy v J Factor Holdings Pty Ltd t/as South Beach Hotel[2016] FWC 1978 [15].
[20] [2017] FWC 653.
[21] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[22] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[23] Ibid.
[24] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Ms Kristen Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899.
[25] [2015] FWC 8885.
[26] Ibid [29].
[27] [PR739709].
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