Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic

[2016] FWCFB 349

[2015] FWC 7659 [Note: An appeal pursuant to s.604 (C2015/7384) was lodged against this decision - refer to Full Bench decision dated 27 January 2016 [[2016] FWCFB 349] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Laetisha Diotti
v
Lenswood Cold Stores Co-op Society T/A Lenswood Organic
(U2015/12407)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 10 NOVEMBER 2015

Application for relief from unfair dismissal - extension of time not granted.

[1] Ms Diotti has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with Lenswood Cold Stores Co-Operative Society Ltd T/A Lenswood Apples (Lenswood Co-Op). The application was considered a telephone conference convened on 9 November 2015. At this conference, I advised that I had concluded that the application was lodged outside of the statutory time limit but that I would consider whether the time for lodgement of Ms Diotti’s unfair dismissal application should be extended. This decision sets out the background and my reasons for concluding that this time should not be extended.

[2] The application was lodged on behalf of Ms Diotti by Mr Blewett, of United Voice.

[3] That application advised that Ms Diotti’s dismissal took effect on 29 September 2015 and provided the following reason for the late lodgement:

“Because the applicant was not provided with reasons for her dismissal, she was initially unsure what to do. However she spoke with United Voice on 15 October, and instructed United Voice to issue proceedings. The proceedings were not, however, issued until 22 October 2015. This was due to oversight by United Voice in the course of the transfer of the matter from one official to another.

There is no prejudice to the employer. A United Voice Official contacted the employer on 19 October 2015 to request an explanation of the reasons for the dismissal of the applicant. In that discussion United Voice official advised the employer that the matter may be contested, which was why United Voice sought the reasons for dismissal. The employer undertook to provide written reasons to the applicant.

Given the circumstances, in particular that the cause of delay is an error by United Voice, and the lack of prejudice to the employer, an extension of time should be granted.” 1

[4] On 23 October 2015 my Associate corresponded with both Ms Diotti and Lenswood Co-Op and advised that the extension of time issue would be considered through a telephone conference on 9 November 2015. Substantial information about the extension of time issue was provided to the parties. Ms Diotti was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 2 November 2015.

[5] The Employer’s Response to the application indicated that Lenswood Co-Op opposed the extension of time and asserted that Ms Diotti’s application lacked merit.

[6] On 20 October 2015, Mr Blewett provided an outline of submissions relative to the extension of time issue, and statements made out by Ms Diotti and himself. This material was to the effect that an extension of time should be granted as the delay was the result of representative error. Mr Blewett asserted that the delay was the result of an error on the part of United Voice in belatedly lodging the application and should not be visited on the applicant. Mr Blewett’s statement advised that Ms Diotti had indicated to an official of United Voice, on 16 October 2015, that she would like to challenge her dismissal. Mr Blewett understood that a United Voice official spoke with Lenswood Co-Op management on 19 October 2015. Mr Blewett advised that the matter was referred to him on 19 October 2015 but the short timeframe for the lodgement of the matter was not brought to his attention. He confirmed this was the reason for the late lodgement. Ms Diotti’s statement confirmed that, after the termination of her employment she went away for a few days to Kangaroo Island and, on her return, checked the Fair Work Commission website to establish that she was eligible to make an unfair dismissal application. At that point she was aware that she had 21 days in which to lodge a claim. Ms Diotti did not pursue the application at that time as she was uncertain about whether she would succeed in such a claim and did not understand that United Voice could assist her in these circumstances. On 16 October 2015 she spoke with a United Voice official in relation to an underpayment claim arising from her previous employment. She then raised her concerns about the termination of her employment with Lenswood Co-Op. She understood that official would take the matter up with Lenswood Co-Op. Ms Diotti confirmed that she spoke with the United Voice official again on 19 October and was advised that Lenswood Co-Op would be providing reasons for her dismissal to United Voice within the next few days and that her claim had been referred to the industrial section of United Voice. Ms Diotti also spoke with Mr Blewett on 22 October 2015. In that discussion Mr Blewett asked her if she wanted to lodge a claim and she confirmed that this was the case.

[7] Ms Diotti did not participate in the conference on 9 November 2015 but was represented by Mr Blewett of United Voice. Mr Parker, of counsel, sought permission to represent Lenswood Co-Op. That permission was granted by agreement pursuant to s.596(2)(a). Additionally, Mr Winter of Lenswood Co-Op participated in the conference. I note that a sound file record of this telephone conference was kept.

[8] I have considered the extension of time issue on the material before me.

[9] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[10] Section 394 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.”

[11] Ms Diotti’s unfair dismissal application was made two days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended.

[12] I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd² which 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.”

[13] Mr Blewett asserts that the delay was occasioned by representative error. In order to consider the entirety of the period from when Ms Diotti was dismissed, I have relied on her statement which confirms that, after she was dismissed on 29 September 2015, she went away to Kangaroo Island for a few days. 3 On her return she checked the Fair Work Commission website and was, from that point, aware of the 21 day time limit.4 Apart from accessing the Fair Work Commission website, she did not seek to challenge the termination of her employment in any way until 16 October 2015, which was the 17^th day after the termination of her employment. Her statement indicates that, in an unrelated telephone call made to her by a United Voice official on that day, she explained the circumstances of her dismissal and said that she would challenge that dismissal if she could. Ms Diotti’s statement confirms hers, and the union official’s awareness that compliance with the 21 day time limit meant that the matter had to be pursued quickly.5 Ms Diotti’s statement confirmed that the union official spoke with her again on 19 October 2015 and advised that she had spoken with the employer who would be providing reasons for her dismissal within the next few days. Ms Diotti’s statement confirms that the official said that the matter had been referred to the United Voice industrial section who would determine whether a claim would be launched. There is nothing in Ms Diotti’s statement which confirms that she gave explicit instructions to initiate this application until 22 October 2015 through a telephone discussion with Mr Blewett. In considering the reasons for the delay I have concluded that there was a period of some 17 days when Ms Diotti effectively did nothing to pursue an application. For most of this time I have concluded that she was aware of the 21 day time limit. I have accepted Mr Blewett’s position that the file was referred to him on 19 October 2015, and that, the normal approach would be to mark such a file as requiring urgent action. Nevertheless, Mr Blewett considered the file on 22 October 2015, obtained instructions from Ms Diotti to lodge the application, and did so on that same day. To the extent that the application was not lodged on 20 or 21 October 2015, there is an element of representative error.

[14] The long standing approach⁶ of the Commission is that representative error may represent an acceptable reason for the delay and, hence in terms of the current legislative requirement, an exceptional circumstance. That approach is founded on the principle that, if an applicant did not contribute to a delay caused by his or her representative, it would not be fair to hold that error against the applicant. There is no coherent explanation for the delay, of some 17 days before Ms Diotti indicated concern to her union relative to the termination of her employment. In these circumstances, I am not satisfied that Ms Diotti’s circumstances mean that the relatively minimal effect of that representative error favour a finding of an exceptional circumstance and hence, an extension of time. Whilst I have accepted an element of representative error associated with Mr Blewett’s inaction in processing the matter between 19 October 2015 and 22 October 2015, any such representative error is not, of itself, a basis for an extension of time. Appropriate account must be taken of the overall circumstances and the conduct of the applicant.⁷ Consequently, all of the actions, or in this case, lack of action on the part of Ms Diotti are central to the question of whether there is an acceptable reason for the delay. The circumstances here are simply not properly characterised as fairly explaining the delay on the basis of representative error. The delay here was fundamentally caused by lack of action on the part of Ms Diotti even though she was aware of the 21 day time limit. She simply left it too late to request the assistance of her union.

[15] I have noted that United Voice took action on 16 October 2015, shortly after Ms Diotti advised of the concerns she had about the termination of her employment, so as to seek an explanation for this dismissal. Whilst this represents an alternative form of action to the lodgement of this application, Ms Diotti’s delay in bringing the matter to the attention of United Voice was of her own making.

[16] I am not satisfied that the granting of an extension of time represents prejudice to the respondent in this matter but this, of itself, cannot represent a basis for an extension of time.

[17] In terms of the merits of the application, the limited information available to me indicates that Ms Diotti was dismissed on a summary basis after behaving abusively and threateningly toward another employee, and Mr Winter. I have noted Mr Blewett’s advice is that Ms Diotti disputes the Lenswood Co-Op assertions. If these allegations are established, they would generally represent a valid reason for the termination of her employment. Notwithstanding this, information about the detail of the process followed by Lenswood Co-Op are not before me. Consequently, I have regarded the merits of the matter as a neutral factor with respect to the extension of time issue.

[18] I have reviewed Ms Diotti’s circumstances in the context of the various authorities referred to me by Mr Blewett. Each of those matters involved consideration of the applicant’s behaviour in the context of representative error. An appropriate starting point is the Full Bench decision in M N Robinson v Interstate Transport Pty Ltd 8. In that matter the Full Bench detailed the same approach which I have set out above, in the following terms:

“[24] 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’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 in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. 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.

[25] The approach in Clark’s Case was summarised in Davidson’s Case 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 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.””

(references omitted)

[19] In Robinson, the Full Bench addressed the particular circumstances of that matter in the following terms:

“[29] We find that the Commissioner erred in diminishing the significance of the representative error on the basis that Mr Robinson was inactive between 13 May 2010 and 18 June 2010.

[30] Mr Robinson arranged legal advice three days after the termination of his employment. At that time Mr Robinson requested that Mr Tayler prepare a client agreement for his consideration and upon receiving the agreement, he executed the agreement on 13 May 2010, within a week of its receipt. On the day he executed the agreement, Mr Robinson instructed Mr Tayler to file a general protections application on his behalf. It is unsurprising that Mr Robinson, having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative’s requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of providing clear instructions to Mr Tayler to lodge his application.

[31] As noted by a Full Bench in D La Rosa v Motor One Group Pty Ltd, in the context of s.170CE of the WR Act:

“As is evident from Clarke, little might be required to satisfy the Commission that the applicant was blameless in the delay. In the context of a relatively short delay, it may simply be a matter of establishing that the applicant gave instructions to lodge [in this case] a Notice of Election and thereafter left matters in the hands of his or her representative.”

[32] For these reasons we are satisfied that Commissioner Simpson erred in his approach to representative error and his findings as to Mr Robinson’s conduct in that regard. This error led to an ultimate conclusion which was unsupported by the facts and which resulted in a decision which was plainly unjust to Mr Robinson in circumstances where he had acted promptly to obtain legal representation and instructed his legal representative to file his application. We are satisfied that the Commissioner erred in the sense of House.

[33] Accordingly, we grant permission to appeal, uphold the appeal and quash the decision of Commissioner Simpson in [2011] FWA 696.”

(references omitted)

[20] Consequently, it is clear that the circumstances in that matter were very different to those of Ms Diotti. In that matter the applicant arranged legal advice three days after his dismissal and continued to act promptly to pursue the matter. In contrast, Ms Diotti waited for at least 17 days and, it appears even longer, before giving the instruction to lodge this application.

[21] In Hoang v WMS Gaming Australia Pty Ltd 9 the applicant made contact with the representative in the second week after the dismissal took effect and consequently promptly concluded a costs agreement with that representative. In Finlayson v Western Health10 the applicant gave instructions to lodge the application within seven days of the employment termination and was found to have acted appropriately to pursue the matter. In Combes v Lee Crane11 there was no apparent dispute that the applicant had acted properly in the matter and that the delay was entirely the fault of the representative. In Clement v Grange Aged Care12 the applicant contacted a union immediately following the termination of employment and persistently followed up on the application. In Varcoe v ACE Insurance13 the applicant gave instructions with respect to the lodgement of an application and entered into a costs payment arrangement within nine days of the termination of employment taking effect. I have concluded that each of these authorities have considered the entirety of the period from when the termination of employment took effect with particular emphasis on the actions taken by an applicant. In this case, Ms Diotti elected not to take action until late in the 21 day time period. Whilst it is true that the application could still have been lodged within time, it was Ms Diotti’s lack of action at an earlier time that ultimately led to the late lodgement of the application. If it was the case that United Voice had been requested to initiate the application at an earlier time and failed to do so, I may well have arrived at a very different conclusion. However, the facts of this matter relative to persons in similar circumstances to Ms Diotti do not generally support an extension of time.

Conclusion

[22] For the reasons I have set out above, I am not satisfied that Ms Diotti’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order (PR573703) reflecting this decision will be issued.

Appearances (by telephone):

S Blewett for the Applicant.

J Parker of counselfor the Respondent.

Hearing (Conference) details:

2015.

Adelaide:

November 9.

<Price code C, PR573702>

 1   Form F2, para 1.4

2 [2011] FWAFB 975

 3   Ms Diotti’s Statement, para 9

 4   Ms Diotti’s Statement, paras10 and 16

 5   Ms Diotti’s Statement, para 13

6 amongst other matters, Clark v Ringwood Private Hospital (1997) 74 IR 413

7 see for example Clark v Ringwood Private Hospital Print S5279 and Comcare v O’Hearn [1993] 119 ALR 85

 8   [2011] FWAFB 2728

 9   [2014] FWC 930

 10   [2014] FWC 6076

 11   [2015] FWC 3930

 12   [2015] FWC 315

 13   [2015] FWC 2805

Printed by authority of the Commonwealth Government Printer