Clayton James Banks v Znx Pty Ltd
[2022] FWC 2875
•26 OCTOBER 2022
| [2022] FWC 2875 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Clayton James Banks
v
Znx Pty Ltd
(U2022/9081)
| COMMISSIONER P RYAN | SYDNEY, 26 OCTOBER 2022 |
Unfair dismissal application filed out of time – circumstances exceptional – extension of time granted.
Introduction
An application by Mr Clayton Banks (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) was lodged on 8 September 2022 (Application).
In the Application, the Applicant states that his employment with ZNX Pty Ltd (Respondent) was terminated with effect from 17 August 2022.
Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). The period of 21 days ended at midnight on 7 September 2022. The Application was therefore filed one day outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3). In its Form F3 Response, the Respondent stated that it does not oppose the application for an extension of time.
In accordance with directions issued by my Chambers, both parties were given an opportunity to file materials in support of, or in opposition to, the matters to be determined.
The matter proceeded as a determinative conference[1] via Microsoft Teams on 20 October 2022. The Application and materials filed by the parties were consolidated by my chambers into a Hearing Book which was distributed to the parties for reference during the hearing of the matter.
The Applicant was represented by Ms J Duan of the Australian Workers’ Union (AWU). The Respondent was represented by its group workplace relations manager, Mr I Carter.
For the reasons that follow, I grant an extension of time under s.394(3).
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.[2] 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.[3]
The requirement that there be exceptional circumstances before time can be extended under s.394(3) 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.
Section 394(3) 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;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
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.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an unfair dismissal application.[4]
I now consider these matters in the context of the application.
Reason for the delay
The FW 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.[5]
Applicant’s Evidence and Submissions
The Applicant relies on representative error for the delay in filing the application. In support of this reason, the Applicant filed a witness statement of Mr Jeff Buhler, the senior vice president of the AWU, which was admitted into evidence.
In his witness statement, Mr Buhler states that:
· The Applicant contacted the AWU on the day of his dismissal;[6]
· The AWU set up an electronic reminder notification and erroneously inputted 21-day period expiring on 8 September, rather than 7 September;[7]
· During a meeting at the AWU’s on 30 August 2022, the Applicant provided instructions to the AWU to file an application for unfair dismissal;[8]
· On 4 September 2022, the AWU sent correspondence to the Respondent disputing the dismissal and seeking a response by 6 September 2022. The covering email erroneously referred to the 21 day period expiring on 9 September 2022;[9]
· On 7 September 2022, the AWU prepared a draft application for the Applicant’s review seeking any feedback by 12:00pm on 8 September 2022.[10]
The application was filed at approximately 2:00pm on 8 September 2022.
In written submissions, the Applicant submitted the miscalculation of the 21-day time limit by the AWU was representative error and that the Applicant was blameless.[11] In support of this submission, the Applicant cited the decision of a Full Bench of the Commission in Robinson v Interstate Transport Pty Ltd[12] (Robinson) as authority that representative error, in circumstances where an applicant is blameless, would constitute exceptional circumstances subject to the other factors identified in s.394(3)(a)-(f).[13]
Respondent’s Evidence and Submissions
As noted above, the Respondent does not oppose the application for an extension of time and did not file any evidence or submissions beyond confirming the position set out in its Form F3 Response.
Reason for delay - Consideration
The relevant principles of representative error were established in Clark v Ringwood Private Hospital[14] (Clark) and were summarised by the Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal & Islander Child Care Agency[15] (Davidson) 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 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 considered.’[16]
On the evidence before me, I am satisfied that the Applicant gave clear instructions to the AWU to file the application, and that it was the AWU’s error in calculating the 21 day period that resulted in the application being filed one day late.
In similar factual circumstances to those found in Robinson, the Applicant acted promptly by contacting the AWU on the same day of his dismissal, provided clear instructions to file the application, and responded promptly to requests from the AWU to review the draft application.[17]
For these reasons I am satisfied that the Applicant is blameless and representative error is an acceptable explanation for the delay. This circumstance weighs in favour of a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It is not in dispute, and I so find, that the Applicant was aware that his employment ceased on 17 August 2022 and therefore had the full period of 21 days to lodge the unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
It is not in dispute, and I so find, that the Applicant disputed the termination of his employment by writing to the Respondent during the 21 day period. This circumstance weighs in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I therefore consider this to be a neutral consideration.
Merits of the application
The FW Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the application are set out above and I do not repeat them here. It is evident to me that the merits of the application 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 firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter.[18] I therefore consider this to be a neutral consideration.
Are there exceptional circumstances?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
I have found that the matters set out at s.394(3)(a) and (c) weigh in favour of a conclusion that there are exceptional circumstances, while the matters set out at s.394(3)(d), (e) and (f) are neutral, and s.394(3)(b) weighs against a conclusion that there are exceptional circumstances.
The matters which weigh in favour of a finding that there are exceptional circumstances outweigh those that weigh against such a conclusion.
Having regard to matters set out in s.394(3), I am satisfied that there are exceptional circumstances.
Should the period for the Application to be made be extended?
Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the Application to be made.
Accordingly, and having regard to the exceptional circumstances and the object stated at s.381(2) of the FW Act to ensure that a “fair go all round” is accorded, I am satisfied that it is appropriate to extend the period for the application to be made to 8 September 2022.
Conclusion
The period for the Application to be made is extended to 8 September 2022.
An Order to that effect will be issued with this Decision.
COMMISSIONER
Appearances:
Ms J Duan AWU Applicant.
Mr I Carter, for the Respondent.
Hearing details:
2022.
Sydney (via Microsoft Teams video-link):
20 October.
[1] See s.398 of the FW Act.
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[6] Exhibit A1 at [3].
[7] Ibid at [4] and Annexure B.
[8] Ibid at [5]-[9].
[9] Ibid at [10] and Annexure C.
[10] Ibid at [12].
[11] Applicant’s Submissions at [3]-[4].
[12] [2011] FWAFB 2728
[13] Applicant’s Submissions at [3].
[14] (1997) 74 IR 413.
[15] (1988) 105 IR 1.
[16] Davidson at p.6.
[17] See Robinson at [30]-[31] and [36].
[18] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090 at [17]-[19].
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