Graeme Bourne v Faqeeri Pty Ltd

[2021] FWC 1021

[2021] FWC 1021

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Graeme Bourne
v
Faqeeri Pty Ltd
(U2020/16599)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 24 FEBRUARY 2021

Unfair dismissal application filed out of time – circumstances exceptional – extension of the time for filing allowed.

[1] This decision concerns an application by Mr Graeme Bourne (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The Applicant contends that his casual employment with Faqeeri Pty Limited (Respondent) was terminated with effect on 9 December 2020. The Respondent contends that the Applicant was not dismissed. I am not determining whether or not the Applicant was dismissed in this decision. I am determining whether the Applicant should be granted an extension of time to file his Application. For the purpose of determining that question, I will take the Applicant’s case on dismissal at its highest and proceed on the assumption that his dismissal took effect on 9 December 2020.

[3] The Applicant’s unfair dismissal application was lodged in the Fair Work Commission (Commission) on 31 December 2020.

[4] Section 394(2) of the 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 30 December 2020. 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). The Respondent opposes this request.

[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 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

[6] 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.

[7] 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.

[8] 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.

Reason for the delay

[9] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4

[10] The 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 the applicant’s favour, however all of the circumstances must be considered. 5

[11] The Applicant contends that the delay in filing his unfair dismissal application was due to representative error on the part of his solicitors, Boylan Lawyers.

[12] A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application for an extension of time. 6 In Clark v Ringwood Private Hospital,7 a Full Bench decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

•  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.

•  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.

•  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.

•  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.

[13] It is not necessary for an applicant to demonstrate that they were “blameless” for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion. 8 However, as the Full Bench explained in Long v Keolis Downer,9 “an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by”.

[14] The relevant sequence of events leading up to and following the Applicant’s dismissal was as follows. On 9 December 2020 the Applicant says that he was informed by the supervisor of the store in which he worked, Shannon (who is also the Applicant’s partner), that he had been dismissed because he was grumpy with customers and hard to work with. The Applicant’s last shift for the Respondent was on 9 December 2020.

[15] About half an hour after his dismissal on 9 December 2020 the Applicant spoke to Mr Kamlesh Kodwani, a director of the Respondent, who told him that he would be paid one week’s pay to “soften the blow”.

[16] On 10 December 2020 Mr Kodwani offered the Applicant a job in a different store, owned by a different company to the Respondent (but in the same group of companies), in a different location. The Applicant indicated that he was interested in the role because he needed the money to support his family, including five children at home.

[17] About a week after 10 December 2020 the supervisor for the store in which the Applicant had been offered a job spoke to the Applicant. The supervisor told the Applicant that she was employing staff for her store and she knew nothing about the Applicant working in that store.

[18] On 14 December 2020 the Applicant sent a message to Mr Amrat Lal, Human Resources Manager of the Respondent, asking him when the new store would open and how long it would be until he was back at work. Later on 14 December 2020 Mr Lal informed the Applicant that the shop fitout of the new store was still ongoing and they would get in touch with the Applicant when they had a date. The Applicant did not hear from Mr Lal again about the role in the new store.

[19] About one week before Christmas the Applicant spoke to the supervisor of the new store and asked when the shop was going to open. She informed him that they were having problems with the shopfitters for the new store.

[20] The Applicant made a number of attempts to complete and lodge an online unfair dismissal application with the Commission. His attempts were unsuccessful. As a result, on 22 December 2020 the Applicant contacted Boylan Lawyers and sought their assistance to make an unfair dismissal application. The Applicant told an employee of Boylan Lawyers that he could not work out the application process with the Commission and needed something done straight away otherwise he would run out of time. An appointment was made for the Applicant to speak with a solicitor from Boylan Lawyers at 2:30pm on 23 December 2020. Prior to that time, the appointment was rescheduled by Boylan Lawyers to 29 December 2020.

[21] On 28 December 2020 the Applicant requested a separation certificate from Mr Lal because he had bills to pay and needed to apply for benefits from Centrelink. Mr Lal informed the Applicant that he had not been sacked and had been given an opportunity to work for a different company, but he would be provided with a separation certificate. The Respondent did not provide the Applicant with a separation certificate.

[22] On 29 December 2020 the Applicant spoke with a solicitor from Boylan Lawyers. He received advice about making an unfair dismissal application and was told that Boylan Lawyers would file the application for him, by the due date, after he had completed some paperwork and paid a fee.

[23] The Applicant did not have access to a printer on 29 December 2020. On 30 December 2020 the Applicant’s partner printed out the paperwork which had been sent to him by Boylan Lawyers on the previous day, filled it out, and sent it back to Boylan Lawyers by reply email at about 2pm. The Applicant also completed a direct debit authority with his account details for the payment of fees to Boylan Lawyers. That authority was returned to Boylan Lawyers at the same time as the other documentation on 30 December 2020.

[24] The Applicant also telephoned Boylan Lawyers on a number of occasions on 30 December 2020 after he submitted the paperwork to Boylan Lawyers. On one of those occasions he spoke with an employee of Boylan Lawyers who confirmed that the Applicant had returned the paperwork to Boylan Lawyers.

[25] On 31 December 2020 the Applicant contacted Boylan Lawyers again. He was informed that his unfair dismissal application had not been lodged because the employee to whom the paperwork had been sent by the Applicant was absent from work on 30 December 2020. Later on 31 December 2020 Boylan Lawyers filed the Applicant’s unfair dismissal application in the Commission.

[26] It was a clear representative error on the part of Boylan Lawyers not to file the Applicant’s unfair dismissal application on 30 December 2020. The Applicant sought assistance from Boylan Lawyers on 22 December 2020, at which time there was plenty of time remaining to prepare and file an unfair dismissal application by midnight on 30 December 2020. Further, after speaking to a lawyer on 29 December 2020, the Applicant did all that was asked of him in acting promptly to print the paperwork, fill it in (including the authority to pay Boylan Lawyers’ fees), and return it to Boylan Lawyers at about 2pm on 30 December 2020. The Applicant also made contact with Boylan Lawyers on the afternoon of 30 December 2020 to ensure they had received the documentation. The Applicant was told that the documentation had been received. The internal processes at Boylan Lawyers broke down because the secretary of the lawyer to whom the documents had been sent by the Applicant was absent from work on personal leave on 30 December 2020, but the lawyer who gave advice to the Applicant on 29 December 2020 (and who was responsible for completing and lodging the unfair dismissal application) was not aware that his secretary was absent from work on 30 December 2020 and no other person was checking her emails on a regular basis.

[27] In addition to these matters, the Applicant gave evidence, which I accept, that he was busy over the Christmas 2020 period caring for two autistic children and looking for a new house in which to live with his family.

[28] I consider that the Applicant does have an acceptable explanation for the one day delay in filing his application, namely, representative error on the part of Boylan Lawyers in failing to lodge the application on 30 December 2020.

[29] In all the circumstances, I am satisfied that the delay in filing the application (30 to 31 December 2020) is to be attributed to the errors made by the Applicant’s solicitors. No part of the delay was occasioned by the conduct of the Applicant; he is blameless for the delay.

[30] For the reasons stated I consider the Applicant’s explanation for the delay in lodging his application to be an acceptable and reasonable explanation for the delay. This 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

[31] The Applicant says he was notified of the dismissal on the day it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[32] The Applicant did not take any action to dispute his dismissal, other than by filing his unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[33] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[34] The 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 unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. 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) of the Act 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 some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[35] The Applicant contends that he was not given any warnings about his conduct or performance during his employment. Yet he says he was dismissed summarily on 9 December 2020 on the basis of his performance, in particular because he was allegedly grumpy with customers and hard to work with. The Applicant says he was not notified of, nor given an opportunity to respond to, these reasons before the decision was made to terminate his employment.

[36] The Respondent contends that the Applicant was not dismissed; he was offered a role at a different store because of work politics and complaints about him. The Respondent also relies on the fact that it made a payment of one week’s wages to the Applicant “for not working at store just so that he doesn’t have issue to cope up [sic] with expenses”. 10

[37] On the basis of the material presently before the Commission, the Applicant has a strong case that he was dismissed on 9 December 2020 and he was not afforded procedural fairness prior to his dismissal. The offer of alternative employment with a different employer did not turn into anything. Whether or not the Applicant was grumpy, difficult to work with, or otherwise deficient in his performance is very difficult to assess on the material presently before the Commission. Detailed evidence and cross examination of relevant witnesses would be required before a proper assessment could be made of those matters.

[38] In all the circumstances, the Applicant has reasonable prospects of success in establishing that he was dismissed and he was not afforded procedural fairness prior to his termination. On that basis, I consider the merits of the Applicant’s claim to weigh in support of his application for an extension of time.

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

[39] 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.

[40] 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

[41] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant and Respondent, I am satisfied that there are exceptional circumstances. In making this evaluative assessment I have taken into account each of the factors in paragraphs 394(3)(a) to (f). The most persuasive factor in the circumstances of this case is the fact that the Applicant has provided an acceptable and reasonable explanation for the delay in lodging the application. In my view, it is unusual or uncommon for person to comply with all that is asked of them by their solicitors but to have their application filed late because of an error in the internal processes of the firm of solicitors they have engaged. I am also persuaded that it is appropriate in the circumstances of this case to exercise my discretion to extend the time for the Applicant’s application to be lodged. In my view, it is in the interests of justice that the Applicant, whose conduct did not contribute to the delay in lodging his application, be permitted to pursue his unfair dismissal case, which prima facie has some merit. I will therefore extend the time for the Applicant to lodge his unfair dismissal application to 31 December 2020. An order will be issued to that effect [PR727275].

DEPUTY PRESIDENT

Appearances:

Mr Gluche, solicitor, on behalf of the applicant
Mr Kodwani, director of the respondent, on behalf of the respondent

Hearing details:

2021.
Newcastle (by telephone):
23 February.

Printed by authority of the Commonwealth Government Printer

<PR727274>

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

 2   Ibid

 3   Long v Keolis Downer[2018] FWCFB 4109 at [40]

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

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

 6   See, for example, C. Davidson, Print Q0784, 12 May 1998, (Ross VP, Watson SDP, Eames C); Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728; Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759; Melios v Qantas Airways Ltd[2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd[2011] FWA 2802; Long v Keolis Downer[2018] FWCFB 4109

 7 (1997) 74 IR 413 at 418-9

 8   Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759 at [17]; Long v Keolis Downer[2018] FWCFB 4109

 9   [2018] FWCFB 4109 at [60]

 10   Ex R1