Emily Riggs v Longbow Group Pty Ltd

[2020] FWC 5479

[2020] FWC 5479

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emily Riggs
v
Longbow Group Pty Ltd
(U2020/12189)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 19 OCTOBER 2020

Application for an unfair dismissal remedy – application made outside of the time prescribed in s.394(2) – consideration whether to allow a further period within which application should be made – whether there are exceptional circumstances – satisfied there are exceptional circumstances – discretion exercised to allow a further period to make application

[1] Ms Emily Riggs (Applicant) has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). She commenced employment with Longbow Group Pty Ltd (Respondent) on or about 24 January 2020.

[2] The Applicant was dismissed by the Respondent with immediate effect on 7 August 2020. The reason given by the Respondent for the decision to terminate the Applicant’s employment was persistent breaches of the Respondent’s COVID-19 workplace health and safety plan.

[3] The Applicant’s solicitor lodged Ms Rigg’s application by email on 10 September 2020. Section 394(2) of the Act provides 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 28 August 2020. The application was therefore lodged 13 days after that period had elapsed. The Applicant asks the Commission to allow a further period for the application to be made under s.394(3).

[4] The matter was listed for directions hearing on 18 September 2020, on which date I made directions for the filing of submissions addressing the issue of whether a further period should be allowed for the application to be made. One of the directions made was that by no later than 5.00pm on Thursday, 8 October 2020any party requesting an oral hearing should so indicate in writing and absent any request the application would be determined on the papers. No request for an oral hearing was received. In the circumstances, I have decided to determine the application on the papers without holding a hearing.

[5] The 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. 1 

[6] 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. 2 

[7] 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.

[8] Section 394(3) allows the Commission to exercise a discretion to grant an extension of time, if the Commission is satisfied there are exceptional circumstances taking 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.

[9] 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. I now consider these matters in the context of the application.

Preliminary matter

[10] The Respondent objects to the admission into evidence of certain material filed by the Applicant. It contends the Commission should exclude from its consideration the Applicant’s submissions dated 24 September 2020 and the affidavit of Ms Naomi Riggs sworn on 14 September 2020 on the basis that they include information and documents the subject of joint legal professional privilege which has not been waived by the Respondent. 3 The document and information leading to this objection is exhibit NR-1 attached to the affidavit of Ms Naomi Riggs and referred to at paragraphs [24] and [25] of the Applicant’s submissions.

[11] While conceding that the Commission is not bound by the rules of evidence, 4 the Respondent submits that the document is correspondence of the type referred to in s.131(1)(a) of the Evidence Act 2008 (Vic) and therefore cannot be adduced.5

[12] For its part, the Applicant submits that the documents should not be excluded from consideration on the basis of joint privilege. In support of this proposition it relies on s.591 of the Act and that the affidavit in question is the subject of a confidentiality order. 6 It denies that any joint privilege attaches to the document in question, instead contending that as a unilateral letter of demand the privilege that attaches is entirely the Applicant’s.7 As to the relevance of s.131(1)(a) of the Evidence Act 2008 (Vic), the Applicant refers to exceptions found at ss.131(2)(e) and 131(2)(g) as contradicting the Respondent’s assertion.8

[13] The reliance of both parties on the Evidence Act 2008 (Vic) is misconceived. Even if the Commission were bound by evidentiary rules, the Evidence Act 2008 (Vic) has nothing to say on the matter. This is self-evidently because the Evidence Act 2008 (Vic) does not regulate proceedings of a Commonwealth tribunal exercising jurisdiction under Commonwealth law. In any event I need only refer to the correspondence the subject of the objection as establishing the fact the correspondence was sent. For present purposes, the precise content (save for noting it related to the dismissal) need not be taken into account. Reliance on it by the Applicant is for the purpose of showing steps taken to dispute the dismissal and addressing the absence of prejudice because the Respondent was on notice that the dismissal would be challenged.

[14] The evidence the subject of the objection is admitted for that purpose.

Reason for the delay

[15] The Act does not specify what reason or reasons for delay might fall 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 the applicant’s favour, however all of the circumstances must be considered. 9 

[16] The Applicant cites representative error as the explanation for the delay in lodging the application. 10 As previously mentioned, the Applicant’s employment was terminated with effect from 7 August 2020. The following day the Applicant contacted her legal representative and on 10 August 2020 gave formal instructions.11 A letter of demand was sent to the Respondent on 12 August 2020.12 On 24 August 2020, the Applicant instructed her solicitor to file an unfair dismissal remedy application.13 Ms Naomi Riggs, the Applicant’s solicitor, asked her paralegal to file the unfair dismissal remedy application and was subsequently informed that the application had been filed.14 It later became apparent that this was not the case.

[17] On 9 September 2020, on reviewing her current files, Ms Naomi Riggs instructed her paralegal to make a telephone call to the Commission to obtain an update as to the progress of the application. 15 On 10 September 2020, the Applicant’s solicitor was informed that the application had in fact not been lodged.16 The application was filed later that same day.

[18] Ms Riggs’ evidence is that the requirement that employees work from home due to restrictions the result of the COVID-19 pandemic has negatively impacted the mental health and in turn work performance of the relevant paralegal. 17

[19] The Respondent contends that this is not a case where the applicant is blameless in respect of the delay. Rather, this is a case in which the Applicant has simply left the matter in the hands of her representative and taken no steps to inquire as to the status of her claim. 18 In the circumstances of this case, that submission is not persuasive. Plainly on the facts, had the Applicant made any enquiries before 2 September 2020, she would likely have been told by Ms Riggs (as she was on 2 September 2020) that the application had been filed. After all, Ms Riggs believed, having been told so by her paralegal, that the application had been filed soon after 24 August 2020, the date on which instructions to file were given. That the Applicant left the matter to her solicitor in the circumstances of this case does not tell against the explanation given for the delay.

[20] I am satisfied that the Applicant has provided an acceptable explanation for the delay. The Applicant was entitled to believe that her solicitor would file an application within the required timeframe as instructed on 24 August 2020. Moreover, Ms Riggs had no reason to know that, contrary to the advice from her paralegal, the application had not been filed. In any event the Applicant did not simply leave the matter in the hands of her solicitor. The Applicant’s evidence, which is uncontested and which I accept, is that she instructed her solicitor to file the application on 24 August 2020 and on 2 September 2020, she enquired as to the status of her application and was told that it had been lodged. 19 The Applicant had no reason to doubt the accuracy of this information. But for representative error, the application would otherwise have been lodged within the time prescribed. That there is an acceptable explanation for the delay is a matter that weighs in the Applicant’s favour.

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

[21] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. That this is so might normally weigh against the Applicant because she had the benefit of the full 21-day period to lodge an application. However, given the circumstances described in my discussion of the reasons for the delay, I do not consider this factor weighs against the Applicant in this case.

Action taken to dispute the dismissal

[22] The Applicant engaged legal representation on 10 August 2020 20 and caused a letter of demand to be sent to the Respondent via her legal representative on 12 August 2020.21 The Applicant instructed her solicitor to file an unfair dismissal application on 24 September 2020. On the material before me, I am satisfied that the Applicant took steps to dispute the dismissal and did so promptly. That this is so weighs in the Applicant’s favour.

Prejudice to the employer

[23] The Respondent contends that gathering the necessary evidence to respond to the application has been made significantly more difficult, and in some instances impossible, due to the delay. 22

[24] The Applicant submits that the delay causes no prejudice to the Respondent in circumstances where it was put on notice of the intended application by the Applicant’s letter of demand dated 12 August 2020. 23 The Applicant further contends that the delay could not be said to result in a significantly more difficult process of gathering evidence as the person who effected the termination remains employed by the Respondent and all company documents would still be in its possession.24

[25] I accept the Applicant’s submissions in this regard. I am satisfied that by the Applicant’s letter of demand dated 12 August 2020, which states that the Applicant’s representative “hold instructions to file a claim against Longbow Group for relief from unfair dismissal”, 25 the Respondent was effectively on notice that an unfair dismissal remedy application may be lodged by the Applicant. In any event, the suggestion that a 13 day delay has the prejudicial effect for which the Respondent contends is frankly weak. I am not persuaded that gathering the required evidentiary material to respond to an unfair dismissal application has been made more difficult by a delay of 13 days.

[26] I cannot identify any prejudice that would accrue to the Respondent if I were to allow a further period within which the application could be lodged. By itself the absence of prejudice would not warrant a conclusion that there are exceptional circumstances nor provide a proper foundation to grant an extension of time under s.394(3) of the Act. However, the absence of prejudice does favour the Applicant, and to which I attribute some weight.

Merits of the application

[27] I am required to take into account the merits of the application in considering whether to extend time. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s.396(a) makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application. Nonetheless an assessment of the merits is required. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[28] In short compass, the Applicant contends that the dismissal was unfair for the following reasons:

•  there was insufficient evidence before the Respondent on 7 August 2020 to justify an instant termination of employment due to serious misconduct; 26

•  at no point during the meeting on 7 August 2020 was the Applicant informed of the reason for dismissal; 27

•  because the Applicant was not notified of the reason, she had no opportunity to respond; 28

•  the termination meeting occurred without proper notice and no support person was allowed to assist at any discussions relating to dismissal; 29 and

•  the Applicant had never been subject to any prior disciplinary processes or written performance reviews; 30

[29] In essence the Respondent contends that the Applicant had been given multiple verbal warnings regarding her failure to comply with the Respondent’s COVID-19 safety regulations. 31 It contends that the potential consequences of such breaches justified summary dismissal.32

[30] Overall, on the available material, it appears that the substantive 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 except to say the Applicant has at least an arguable case, and the Respondent a prima facie defence. It appears to me therefore, that the application is not without merit. Although not without merit, the strength of the Applicant’s case is not so obvious as would warrant weighing significantly in the Applicant’s favour. The weight attributable in the Applicant’s favour is only marginal.

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

[31] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[32] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[33] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise, except in exceptional circumstances, the right to bring the action will be lost.

[34] Having regard to the matters I am required to take into account under s.394(3), I am satisfied that there are exceptional circumstances in this case. In my view, this is so, whether the various circumstances are considered individually or together. There is a satisfactory explanation for the delay and one for which the Applicant cannot be blamed. There is also an absence of prejudice and it is apparent that the Applicant took steps to dispute the dismissal and the Respondent was on notice before time expired. These are all factors that weigh in favour of the Applicant. I have also concluded that the application for a remedy is not without merit although this factor weighs only slightly in favour of the Applicant. The other considerations do not weigh against the Applicant. When each of the matters set out in s.394(3), in the context of this case, are considered and weighed as well as examining those matters individually and collectively, I am satisfied that there are exceptional circumstances.

[35] Because I am satisfied that there are exceptional circumstances, I will exercise my discretion to allow an extension of time and allow a further period under s.394(3). There is no reason to not so do. In the circumstances of this case, injustice would be visited on the Applicant if an extension of time were refused.

[36] I propose to allow a further period within which the application may be lodged.

[37] I also issue the directions attached to this decision to deal with the application.

Order

[38] Pursuant to s.394(3) of the Act I order:

a. that a further period within which the Applicant may lodge an application under s.394(2) be allowed; and

b. the further period is until 10 September 2020.

DEPUTY PRESIDENT

Determined on the basis of written submissions:

Applicant, 24 September and 7 October 2020
Respondent, 2 October and 5 October 2020

Printed by authority of the Commonwealth Government Printer

<PR723552>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]

 2   Ibid

 3   Respondent’s further submissions dated 2 October 2020 at [1]

 4   Ibid at [2]

 5   Ibid at [5]

 6   Applicant’s further submissions dated 7 October 2020 at [1]-[3]

 7   Ibid at [5]

 8   Ibid at [9]

 9   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]

 10   Applicant’s Submissions dated 24 September 2020 at [8]

 11   Ibid at [5]

 12   Ibid at [24]

 13   Affidavit of Naomi Riggs sworn on 14 September 2020 at [3]

 14   Applicant’s Submissions dated 24 September 2020 at [10] and Affidavit of Naomi Riggs sworn on 14 September 2020 at [4]

 15   Affidavit of Naomi Riggs sworn on 14 September 2020 at [6]

 16   Ibid at [7]

 17   Ibid at [9]

 18   Respondent’s Submissions dated 2 October 2020 at [11] – [14]

 19   Applicant’s Submissions dated 24 September 2020 at [21]

 20   Applicant’s Submissions dated 24 September 2020 at [23]

 21   Ibid at [24]

 22   Respondent’s Submissions dated 2 October 2020 at [19]

 23   Applicant’s Submissions dated 24 September 2020 at [26]

 24   Ibid at [28]

 25   Exhibit NR-1 to the Affidavit of Naomi Riggs sworn on 14 September 2020

 26   Applicant’s Submissions dated 24 September 2020 at [40]

 27   Ibid at [41]

 28   Ibid at [42]

 29   Ibid at [43]

 30   Ibid at [44]

 31   Respondent’s Submissions dated 2 October 2020 at [21]

 32   Ibid at [4]