Garry Ritting v Pub Art Australia Pty Ltd

[2018] FWC 2016

[2018] FWC 2016

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Garry Ritting
v
Pub Art Australia Pty Ltd
(C2018/1093)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 6 APRIL 2018

Application to deal with contraventions involving dismissal – whether to extend time for lodging the application.

[1] On 28 February 2018, Mr Garry Ritting (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is Pub Art Australia Pty Ltd (Respondent).

[2] The Applicant commenced employment with the Respondent on 1 March 2017. He says that he was dismissed on 6 February 2018 and the dismissal took effect on that day.

[3] The application was therefore lodged 1 day out of time.

[4] For the reasons set out below I have concluded I am satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, an extension of time will be granted.

Alleged Contravention

[5] The Applicant submits that he was dismissed because he attempted to exercise his workplace rights, took sick leave and due to his physical disability. A breach of s.340, 351 and 352 is alleged.

[6] The Respondent submits that the Applicant was not dismissed but had instead resigned.

Procedural background

[7] On 7 March 2018, the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 23 March 2018.

[8] The Applicant was represented by Tim Rizzuto of Unfair Dismissals Direct. The Respondent was represented by Sarah Coppini of Wakefield, Vogrig & Boote Lawyers. The parties were both granted permission to be represented by a lawyer under s.596 of the Act.

[9] The Applicant appeared and gave evidence on his own behalf along with Mr Lewis Smith of Unfair Dismissals Direct.

Legislative scheme

[10] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(1) 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 (2).

[11] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[12] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

“[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.” (endnotes not reproduced)

[13] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[14] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. The onus of establishing exceptional circumstances is on the Applicant.

[15] In the decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 2 the Full Bench made the following statement which, although concerned with the unfair dismissal application, is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

“[12] This decision makes an important point which we consider deserves re-emphasising. 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.”

[30] This extract must be read in its entirety. The decision goes on to state:

“[12] … The circumstances from the time of the dismissal must be 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.”

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”

[16] I will now deal with each of the matters to be taken into account pursuant to s.366(2) separately.

366(2)(a) - The reason for the delay

[17] The Applicant submitted that his application was delayed due to representative error. He submitted that he contacted Unfair Dismissals Direct (UDD) on 6 February 2018 3, however their subsequent communication to him was not received as they had taken down an incorrect email address.4

[18] Mr Ritting and Mr Smith both gave evidence of the steps taken to contact each other prior to the filing of the application. Mr Ritting gave evidence that after his initial consultation on 6 February 2018 he attempted to contact UDD on 9 February 2018 however was unsuccessful. He submitted that he contacted them again on 19 February 2018, and subsequently received email correspondence from them on 22 February 2018. 5

[19] Mr Smith gave evidence that he had attempted to contact the Applicant by phone on 7 and 8 February 2018, however was unsuccessful. On 12 February 2018, he submitted that he emailed the Applicant requesting further documentation in relation to the dismissal. After the Applicant’s phone call on 19 February 2018, Mr Smith sent a further email to the Applicant on 22 February 2018 requesting further information necessary to facilitate the lodgement of his application. 6

[20] Mr Smith’s evidence was that Mr Ritting provided him with this information on 26 February 2018. Mr Smith subsequently sent Mr Ritting a copy of UDD’s terms of engagement on 27 February 2018. That same afternoon Mr Ritting returned a signed copy of the terms of engagement, however Mr Smith had left the office for the day. 7

[21] The Applicant submitted that he gave clear instructions to his representatives to facilitate the lodgement of his application with the Commission within the 21 day time limit prescribed by the Act and after having provided a signed copy of the terms of engagement required by his representatives. 8

[22] He submitted that the singular act of Mr Smith failing to prepare and lodge the application promptly after having received the signed terms of engagement from the Applicant resulted in the delay in the filing of this Application with the Commission. 9

[23] The Respondent submitted that the Applicant’s delay in responding to his representative could not be defined as an unusual, special or uncommon occurrence. 10 They submit that, on the basis of the Applicant’s submission, he did not contact his representative until 15 days after their initial meeting despite the representative requesting further information from the Applicant. After this attempt, he waited a further 8 days before following up with his representative.11

[24] Mr Ritting was extensively cross-examined regarding the action he had taken during the 21 days to contact his representatives. His oral evidence was that he that he had been unable to return calls from Mr Smith in in early February as he had insufficient credit on his phone and did not have a landline. He gave evidence that his partner also had a prepaid phone with insufficient credit. Mr Ritting conceded that he could have attended an internet café in order to check important emails.

[25] Both Mr Ritting and Mr Smith were cross-examined regarding the allegation that Mr Ritting’s email address had been taken down incorrectly by UDD causing a delay in their correspondence. Mr Ritting’s oral evidence was that he spoke to his representatives on 19 February 2018 regarding his email address, however documentation submitted by Mr Smith indicated that UDD had been aware of the correct email address as of 12 February 2018. Mr Ritting conceded that UDD may not have had an incorrect email address and that the delay in correspondence may have been due to his failure to check his emails.

[26] The Respondent submitted that a ‘representative error’ includes inactivity or failure to act promptly. They submitted that in this application it was apparent that the representative did not make any error and was active and prompt in following up the Applicant. 12

[27] In Davidson v Aboriginal & Islander Child Care Agency 13, the Full Bench of the Commission summarised the general propositions to be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay flowing from an earlier decision of the Australian Industrial Relations Commission14 as follows:

“(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 is 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 an out of time application should be accepted.”

[28] The Applicant’s oral submissions were that the delay was entirely the responsibility of UDD. It was submitted that it would be manifestly unfair for the Applicant to be denied the opportunity to pursue his application in circumstances where his representative, despite being aware of the tight timeframe, was not available to prepare the application when the signed terms of engagement were expected.

[29] If an applicant is able to provide a credible explanation for the entirety of the delay this will weigh more heavily towards a finding of exceptional circumstances. Conversely, if an applicant fails to provide a credible explanation for any part of the delay, that would tend to weigh against a finding of exceptional circumstances. 15

[30] I am satisfied that the Applicant has provided a reasonable explanation for the whole of the delay. He returned the signed terms of engagement to his representative at 2.06pm on the day his application was due and I am satisfied that it was reasonable for him to expect that the application would be filed within time. This weighs in favour of a finding of exceptional circumstances.

366(2)(b) - Any action taken by the person to dispute the dismissal

[31] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time.¹⁶

[32] The Applicant submitted that he was at all relevant times seeking to contest the termination of his employment by the Respondent 17, however provided no evidence of any attempts to dispute the dismissal other than contacting his legal representatives.

[33] I am not satisfied that the Applicant made any attempt to dispute his dismissal other than in the filing of this application. This weighs against a finding of exceptional circumstances.

366(2)(c) - Prejudice to the employer (including prejudice caused by the delay)

[34] Prejudice to the employer will go against the granting of an extension of time. 18 The Respondent did not submit that there was any prejudice to it if an extension of time were granted.

[35] The Applicant submitted that there is no prejudice to the Respondent as a result of the Application being filed one day out of time. 19

[36] Absent of any evidence of any real or actual prejudice to the employer, I am satisfied that such absence favours the Applicant.

366(2)(d) - Merits of the application

[37] The Applicant submitted that the claim was meritorious on the basis that the Respondent took adverse action against him because of proscribed reasons under section 340, 351 and 352 of the Act. 20

[38] The Respondent submitted that the Applicant was not dismissed but had resigned on 6 February 2018. They submit that resultantly, the Applicant has no grounds to make an application under s.365 of the Act. 21

[39] The Commission is not required to make a determination that an Applicant has been dismissed before holding a conference under section 368 of the Act. It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1. 22

[40] The Respondent further submitted that they had numerous issues with the Applicant during his employment and were of the view that the catalyst for the Applicant’s resignation was that he was unable to meet the attendance expectations of his position. 23

[41] They submit that the Applicant was treated fairly in relation to his temporary absences and that they were not aware that the he had a physical disability or had proposed to exercise a workplace right. 24

[42] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 25 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.26 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

366(2)(e) - Fairness as between the person and other persons in a like position

[43] The Applicant submitted that the Respondent is not subject to another application of this nature at this time and as such, this is a factor in support of the Commission granting an extension of time. 27 The Respondent did not make any submissions in relation to this criterion.

[44] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 28 However, there were no submissions that there is, or has been, any persons in a similar position to the Applicant. I find this criterion to be neutral.

Conclusion

[45] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[46] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 29

[47] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).

[48] Accordingly, an order 30 granting Mr Ritting an extension of time to make his application until 28 February 2018 will be issued with this decision. The application will be referred for further programming.

COMMISSIONER

Appearances:

T. Rizzuto for the Applicant;

S. Coppini for the Respondent.

Hearing details:

2018

23 March (Telephone hearing).

<PR601817>

 1   [2011] FWAFB 975.

 2   [2016] FWCFB 349

 3   Form F8 Application

 4   Applicant submissions regarding extension of time, filed 21/03/2018

 5   Exhibit A2, 5 – 7

 6   Exhibit A3, 6 - 11

 7   Exhibit A3, 12 – 14

 8   Exhibit A1, 15

 9   Exhibit A1, 16

 10   Exhibit R1, 5

 11   Exhibit R1, 6 – 7

 12   Exhibit R1, 9 - 10

 13   Print Q0784, 12 May 1998

 14   Clark v Ringwood Private Hospital (1997) 74 IR 413

 15   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [45]

16 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 17   Exhibit A1, 21

 18   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 19   Exhibit A1, 21

 20   Ibid.

 21   Exhibit R1, 11

 22   Hewitt v Topero Nominees Pty Ltd t/a Michaels Camera Video Digital [2013] FWCFB 6321 at [50]

 23   Exhibit R1, 12

 24   Exhibit R1, 14-16

 25   Haining v Deputy President Drake (1998) 87 FCR 248, 250

 26   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 27   Exhibit A1, 21

 28   Wilson v Woolworths [2010] FWA 2480, [24]-[29]

 29   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

 30   PR601818

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