David Plant v Australian Paper T/A Paper Australia Pty Ltd

[2018] FWC 5574

[2018] FWC 5574

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Plant
v
Australian Paper T/A Paper Australia Pty Ltd
(U2018/8105)

COMMISSIONER WILSON MELBOURNE, 3 OCTOBER 2018

Application for an unfair dismissal remedy – extension of time – representative error – exceptional circumstances – application granted.

[1] This matter concerns an application made by David Plant alleging unfair dismissal against her former employer, Paper Australia Pty Ltd trading as Australian Paper (Paper Australia). Mr Plant’s dismissal took effect on 3 July 2018 and his unfair dismissal application was received in the Fair Work Commission on Monday, 6 August 2018.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that Mr Plant’s application was made outside of the statutory time limit, with it having been made 13 days after the expiry of the 21 day time period allowed for by the Act.

[3] Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for the hearing and determination of whether an additional period of time should be allowed for making of Mr Plant’s application. Australian Paper does not object to there being an extension of time granted to Mr Plant and concedes that in the circumstances there are exceptional circumstances for the extension of time to be granted owing to representative error on the part of Mr Plant’s union, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU).

[4] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[5] I am satisfied on material before me that, for the reasons set out below, an extension of time should be granted to Mr Plant for the making of his application.

BACKGROUND

[6] Mr Plant was employed by Australian Paper in or around 3 August 1981 and has been continuously employed by the company since that time, a period of more than 37 years and he is presently 63 years old.

[7] The circumstances surrounding Mr Plant’s dismissal include that on 19 March 2018 he was advised of three allegations which had been made about his behaviour and conduct relating to 2 co-workers, Ms McLeod and Ms McDonald. On three dates in January and February 2018 Mr Plant was performing duties he had connected with the canteen at the company’s Maryvale paper mill. The allegations against Mr Plant particularised as follows:

“1. On the 2nd January Ms Mcleod stated that she came into the canteen to get the shop ready to open on the 3rd January. Ms Mcleod alleges that you came running yelling at her saying that there had been no milk delivered that day. When Ms Mcleod asked why you hadn't rang the number on the note left on the fridge you told Ms Mcleod that it wasn't your problem.

2. On the 12th February Ms Mcleod asked you to use the milk out of the coolroom as the dates were the oldest, you started yelling at Ms Mcleod and told her "No, you knew your job". Then 5 minutes later Ms McDonald and Ms Mcleod observed you getting the milk out of the cool room

3. On Monday 26th February you came into the canteen at around 6am. About 1 and a half hours later Ms McDonald went out the back and found the milk left out on the floor. Ms McDonald put the milk back in the fridge as it gets quite warm out in the back room. When you came back half an hour later, Ms Mcleod asked if you could please tell me .... but before she could get any further you started to stand over her throwing your hands at her screaming Ms Mcleod does not know what. Neither Ms McDonald nor Ms Mcleod could understand what you were screaming at the time. They were left taken back by what had taken place.”

[8] Mr Plant was asked to respond to the allegations, which he did, through the CFMMEU and Australian Paper formed a view that two of the three allegations had been substantiated against him, namely the allegations 2 and 3, but that allegation 1 was not substantiated owing to an insufficiency of corroborative evidence as well as a lack of evidence about there being a physical movement on his part in the course of the relevant circumstances.

[9] Having received Mr Plant’s response to the allegation Australian Paper formed the view that the combination of what it viewed to be serious misconduct on his part, together with his prior employment history, justified his termination of employment. The indicated termination of employment was suspended while an internal appeal process could be undertaken. The result of the internal appeal was that the initial findings were maintained and Mr Plant’s employment was terminated with effect from 3 July 2018. When he was dismissed Mr Plant was provided with the payment of an amount of five weeks in lieu of notice together with a payment to him of his accrued statutory entitlements to the date of termination.

[10] Having been dismissed Mr Plant discussed with his union making an unfair dismissal application and an endeavour was made by the CFMMEU to commence such action. The evidence before the Commission is that an Industrial Legal Support Officer in the union’s manufacturing division was requested to file an application for remedy for unfair dismissal with the officer preparing the relevant form and endeavouring to file it with the Commission on 18 July 2018. The officer concerned mistakenly forwarded the email to an internal union email distribution list rather than to the Commission’s Registry. The officer concerned only discovered the situation when he responded on 6 August 2018 to a request from another Industrial Officer about a Notice of Listing and realised that he had not sent the original application to the Commission but instead to the internal email distribution list. The original officer then immediately contacted the Fair Work Commission to verify that the application had not been received by them, which was confirmed. After ascertaining that circumstance, a late application was made to the Commission on Monday, 6 August 2018 at 4:37 PM.

LEGISLATION

[11] Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the Act:

“394 Application for unfair dismissal remedy

(1) ….

(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.”

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

[12] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”:

“[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”. 3

[13] 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 extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 4

[14] In considering whether an extension of time should be granted to Mr
Plant, I am required to consider all of the criteria in s.394(3), which I now do.

1. The reason for the delay

[15] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 5 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.6 An applicant does not ‘need to provide a credible explanation for the entire period’; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.7 While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.8

[16] The “delay” to be considered in this case is the period it took after the prescribed period for Mr Plant to lodge his application. As previously referred to, that was a period of 13 days; the application should have been lodged on Tuesday, 24 July 2018, when it was actually lodged on Monday, 6 August 2018. The factor relied upon by Mr Plant for the lateness of his application is the error made by the CFMMEU officer concerned, together with that person’s subsequent erroneous belief that an application had been filed in the Commission within the permitted statutory time period.

[17] The principles usually adopted by the Commission in respect of considerations of representative error are well-established and include:

“Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital 9 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 Agency10 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 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.” 11 (references from original)

[18] I am satisfied that in the circumstances that Mr Plant left the filing of his unfair dismissal application entirely in the hands of the CFMMEU and that an unfortunate error on the part of the industrial officer dealing with the application led to the late filing.

[19] Accordingly, my assessment is that consideration of this criterion resolves in favour of Mr Plant and for the granting of an extension of time for the making of his application.

2. Whether the person first became aware of the dismissal after it had taken effect

[20] On the basis of the evidence before me, I am satisfied that Mr Plant first became aware of the termination of his employment on Tuesday, 3 July 2018. This is therefore not a circumstance where the Applicant only became aware of his termination at some point after the time that it occurred. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[21] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 12

[22] I am not aware of any other action taken by Mr Plant to dispute his dismissal.

[23] In the circumstances, in which Mr Plant was under the apprehension that an unfair dismissal application had been made on his behalf consideration of this criterion is a neutral factor in my overall decision.

4. Prejudice to the employer (including prejudice caused by the delay)

[24] The delay in the filing of the application is 13 days. The Respondent has not directly put forward that it would be prejudiced by allowing an extension of time for the making Mr Plant's application. Given that the Respondent does not object to the granting of an extension of time to Mr Plant I am satisfied that there is no prejudice likely to accrue to the Respondent in this matter were an extension of time to be granted.

5. The merits of the application

[25] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[26] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In Kyvelos v Champion Socks Pty Limited, decided under earlier legislation, the Full Bench articulated why such position is adopted:

“[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.” 13

[27] Instead of a detailed consideration of the merits of a matter, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 14

[28] The merits of the application likely to be dealt with should the matter proceed to a hearing include the contention on the part of the Applicant that the evidence does not necessarily resolve in favour of the findings made by the Respondent in the course of its investigation leading to his dismissal to the effect that his conduct amounted to serious misconduct for reason of “verbal abuse, intimidating behaviour and threatening behaviour”, as well as a key contention on his part that even were there to be findings against him on the facts in a merits hearing his extraordinary length of service, more than 37 years, coupled with his age should lead to the conclusion that his dismissal was harsh and circumstances.

[29] While that may well be the case there is insufficient material presently before the Commission to draw any conclusions about the prospects of success of these arguments, at least as they go to the likelihood or otherwise of findings favourable to Mr Plant in relation to misconduct. I consider that there is some strength to the argument of Mr Plant about the unusual circumstances of the length of his service and age and that those matters may well cause the Commission to find there has been an unfair dismissal, even after making adverse findings in relation to the alleged misconduct. In the circumstances, consideration of this criterion is a neutral consideration although I do not go so far as to say that his case is particularly meritorious.

6. Fairness as between the person and other persons in a similar position

[30] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 15 In relation to considerations of fairness with unfair dismissal applicants generally, there are no factors before me that would cause a finding that dismissal of Mr Plant's application would lead to differential treatment compared with applicants generally. In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for the same underlying issue.16

[31] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr Plant.

[32] An Order extending the time period for the making of Mr Plant's application for unfair dismissal remedy until 6 August 2018 is issued in conjunction with this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR700094>

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 [21].

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [9].

 3   Nulty v Blue Star Group, 2011, 203 IR 1 [13].

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].

 5   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 [299]-[300].

 6   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [22].

 7   Ibid, [40]

 8   Ibid, [41].

 9 (1997) 74 IR 413.

 10   Print Q0784.

 11   McConnell v A & PM Fornataro (t/as Tony’s Plumbing Service)[2011] FWAFB 466, 202 IR 59, [35].

 12   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 [299]-[300].

 13 (2000) Print T2421 [14].

 14   Haining v Deputy President Drake (1998) 87 FCR 248, [250].

 15   Wilson v Woolworths [2010] FWA 2480 [24]‒[29]

 16   Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773 [38].