Ian Jacks v Hindley and Associates Pty Ltd ATF the Hindley Trust T/A Hindley and Associates Pty Ltd

[2018] FWC 7741

[2018] FWC 7741

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Ian Jacks

v

Hindley and Associates Pty Ltd ATF the Hindley Trust T/A Hindley and Associates Pty Ltd

(C2018/5747)

DEPUTY PRESIDENT BINET PERTH, 19 DECEMBER 2018

Application to deal with contraventions involving dismissal – application lodged out of time – objection to application – extension of time granted.

1. Mr Ian Jacks (Mr Jacks) has lodged an application (Application) pursuant to section 365 of the Fair Work Act 2009 (FW Act) alleging that he was unlawfully dismissed by Hindley and Associates Pty Ltd (Hindley).

1. Subsection 366(1) of the FW Act provides that an application made pursuant to section 365 of the FW Act must be lodged within 21 days after the dismissal took effect. The 21 day period commences on the day following the date of dismissal. Subsection 366(2) provides that the Fair Work Commission (FWC) may allow a further period for lodgement in exceptional circumstances.

1. The Application was lodged out of time and Mr Jacks has sought an extension to the lodgement time limit.  Hindley have objected to the FWC granting such an extension.  In light of this, the Application was listed for a hearing on 6 December 2018.  Directions requiring the filing of materials were issued to the parties on 2 November 2018 (Directions).  

1. The Directions invited the parties to make submissions as to whether the FWC should grant permission pursuant to section 596 of the FW Act for the parties to be represented by a lawyer or paid agent.

1. Section 596 of the FW Act provides as follows:

“596      Representation by lawyers and paid agents

(1)   Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2)   The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a)   it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b)   it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c)   it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”

1. Mr Jacks objected to Hindley being granted permission to be represented on the grounds that Hindley were endeavouring to ‘hide behind’ their lawyers rather than discuss his concerns with him, that the granting of leave to be represented would result in the use of legal jargon intended to prevent him pursuing his claim and that Hindley’s legal representatives would not have sufficient instructions in order for the matter to be determined expeditiously.

1. Jackson McDonald submitted on behalf of Hindley that granting permission for Hindley to be represented would enable the Application to be dealt with more efficiently because the Hearing would involve a level of legal complexity involving cross examination, legal argument, the interpretation of statute and the identification and consideration of relevant facts and case law.  Jackson McDonald also submitted that as a very small building and design drafting company Hindley do not possess adequate resources to effectively represent itself.

1. In Warrell v Fair Work Australia[1] the Federal Court held that,

   “[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.

1. The purpose of the Hearing was to determine the jurisdictional objection, not to finally determine the merits of the issues that Mr Jacks seeks to raise with his former employer.  The Hearing therefore would present limited opportunity for Hindley to engage with Mr Jacks with respect to his concerns about the manner and reasons for his dismissal even if leave to be represented was not granted to Hindley. 

1. The materials filed in advance of the Hearing were not drafted with such resort to legal jargon as to prevent Mr Jacks understanding the case put on behalf of Hindley.  However given that the Application involves the determination of a jurisdictional objection which turns primarily on the identification and application of the relevant case law rather than disputed facts, I was satisfied that the granting of leave to Hindley would allow the matter to be dealt with more efficiently, taking into account the complexity of the matter.

1. Mr Jacks represented himself at the Hearing and gave evidence on his own behalf.  He did not call any other witnesses.  Ms Renae Harding of Jackson McDonald appeared on behalf of Hindley and called Mr Andrew James Jennings-Lowe, an Associate Director and Partner of Hindley, to give evidence on behalf of Hindley.

Factual Context

1. Mr Jacks commenced employment with Hindley on 2 July 2007.

1. Hindley allege that Mr Jacks was regularly late for work.  He was issued with a written warning in relation to his timeliness on 22 June 2018.[2]

1. In a letter dated 25 June 2018, Mr Jacks disputed the validity of the warning and asserted that it was issued in response to a claim by him that he had been denied certain entitlements.[3] 

1. On 25 July 2018, Mr Jacks and three other employees commenced proceedings against Hindley in the Federal Circuit Court of Australia alleging that they had been denied certain entitlements (FCC Proceedings).[4]

1. On 12 September 2018, Mr Jacks informed Hindley that he refused to perform certain duties he had been directed to perform because his pay had been unilaterally decreased and because they were not duties he asserts that he was employed to perform.

1. On 14 September 2018, Hindley issued Mr Jacks with a show cause letter.[5]  Mr Jacks responded to the show cause letter on 18 September 2018.[6]

1. On 21 September 2018, Hindley terminated Mr Jack’s employment.[7]

1. On 5 October 2018, Mr Jacks and Hindley attended a mediation at the Federal Circuit Court in relation to the FCC Proceedings.[8]

1. On 13 October 2018 Mr Jacks lodged this Application.

Relevant Statutory Provisions

1. Section 366 of the FW Act provides:

“366  Time for application

(1) An application under section 365 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).

(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.”

1. It is uncontested that the termination of Mr Jacks’ employment took effect on 21 September 2018. 

1. According to FWC records, Mr Jacks electronically sent the Application to the FWC at 12:01am on Saturday 13 October 2018 and it was received by the Registry at 12:02am on 13 October 2018. The Application was therefore at most two minutes late.

1. As the application was made technically outside of the 21 day time limit, it can only be pursued if this time limit is extended.

1. Section 366(2) of the FW Act provides that the Commission may allow a further period to lodge an application provided there are "exceptional circumstances" taking into account the five nominated criteria. The principles are well established and set out in Nulty v Blue Star Group[9] (Nulty).In that matter, the Full Bench 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.”

1. The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances.[10]  The test of exceptional circumstances establishes a high hurdle for an applicant to overcome for an extension to be granted.[11] Having taken into account the factors set out in section 366(2) ultimately, the power to grant an extension for the filing of an application which has been lodged out of time is a discretionary one.[12]

Consideration

s.366(2)(a) – The reason for the delay

1. The onus is on Mr Jacks to provide a credible reason for the whole of the period that the Application was delayed.[13]

1. While the delay to be considered is the period subsequent to the expiration of the 21 day period, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances.[14]

1. The absence of any explanation for any part of the delay will usually weigh against an applicant and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour.[15]

1. Mr Jacks acknowledges that he was aware of the 21 day time limit and that he left filing the Application until the last day of that period.[16]  He explained that he did so because he had received advice to hold off making the Application until after the scheduled mediation in the Federal Circuit Court to avoid the Application becoming part of the negotiations to commercially resolve the FCC Proceedings.  He says that following the mediation conference in the Federal Circuit Court on 5 October 2018, he deferred filing the Application because he was advised that Hindley or their legal representatives may approach him with an offer to settle before the 21 day period expired.  When he did not receive an offer of settlement by close of business on the final day of the 21 day period, he prepared the relevant documentation and endeavoured to file it electronically with the FWC.[17] 

1. At the Hearing, Mr Jacks explained that he had earlier completed a Form F8 Application by hand and between approximately 8:00pm to 8.30pm he began trying to scan and upload the Form F8 and a number of other documents he wished to attach to his application.  According to Mr Jacks, he had difficulty in scanning the documents and consequently decided to complete the Application online.

1. At the Hearing, Mr Jacks stated that difficulties with his internet connection delayed him lodging his application.  He explained that he does not have a spare modem and that both his neighbours and partner were on holiday so he was unable to access an alternative internet connection.  Eventually, he was able to access the internet and says that he recalls glancing at the clock on his computer as his application uploaded and that the time was approximately 11:58pm. According to FWC records the Form F8 was sent to the FWC at 12:01am on Saturday 13 October 2018 and received at 12:02am, two minutes after the expiry of the 21 day deadline.  

1. It is not unusual for parties as a part of the resolution of industrial proceedings in one jurisdiction to agree not to bring proceedings in other jurisdictions.  For example, an individual who has made an application in the FWC for a remedy for unfair dismissal might in settlement of that claim agree to resolve actual or threatened proceedings for underpayment of wages.  It is not unreasonable to delay undertaking the preparation of an application if the application is unlikely to be necessary or possible.  I am satisfied that in the circumstances Mr Jacks has provided a satisfactory explanation for delaying the preparation and the filing of the Application until after the close of business on 12 October 2018.

1. Mr Jacks’ conceded at the Hearing that he had encountered internet connectivity issues in the past, however they occurred only every ‘blue moon’.  There is no evidence that Mr Jacks had reason to believe that he would not be able to file the Application electronically before the 21 day deadline.  He has also given evidence of his efforts to use a different internet connection when he encountered problems with his own.

1. Hindley cite the decision in Emma Dawson v Virgin Australia Airlines Pty Ltd[18] as authority for the proposition that internet/computer failure is not an acceptable explanation for delay in circumstances where an applicant had left the filing of the application to the last minute.

1. In Emma Dawson v Virgin Australia Airlines Pty Ltd[19] the applicant provided no explanation for failing to file the application prior to the final day it could be made on time.  In contrast, Mr Jacks has provided a satisfactory explanation for the delay in filing the Application prior to close of business on the final day of the 21 day time period.  He also has given evidence that he undertook proactive efforts to overcome his internet connectivity issues when they arose.

1. In the circumstances, I am persuaded there is an acceptable explanation for the delay and this factor weighs in favour of granting Mr Jacks a further period to make his application.   

s.366(2)(b) –  Any action taken by the person to dispute the dismissal

1. Action taken by an applicant to contest the termination, other than by virtue of the application itself, will be relevant and may weigh in favour of granting the extension of time.[20]

1. Mr Jacks concedes that he did not take any action to dispute his dismissal after it occurred, however he says had informed Hindley in writing before he was dismissed that he would pursue legal action if Hindley took any coercive action against him.[21]  He says that his legal advisors warned him that he was likely to be dismissed by Hindley if he pursued the FCC Proceedings, so he thought there was little utility in raising his concerns about his dismissal with Hindley after his dismissal other than by making the Application.

1. Hindley submit this factor should be considered neutral and I believe that is appropriate in the circumstances. 

s.366(2)(c) –  Prejudice to the employer (including prejudice caused by the delay)

1. Prejudice to the employer will go against the granting of an extension of time.  Mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.[22]

1. The Application was sent one minute after the expiration of the 21 day time period.  Hindley received correspondence from the FWC in relation to the Application at the time it would have received the correspondence if the Application had been lodged in time. 

1. Hindley have not identified any prejudice in granting an extension of time.[23]

1. In the absence of any evidence of prejudice to Hindley, this factor weighs in favour of granting Mr Jacks a further period to make his application.

s.366(2)(d) –  The merits of the application

1. In considering the merits of an application for an extension of time, the FWC is not normally in a position to make findings of fact on contested issues because to do so would, in effect, require the parties to present their evidentiary cases twice.[24]

1. Mr Jacks alleges that he was unlawfully dismissed as a consequence of commencing the FCC Proceedings.  Hindley deny this and say that Mr Jacks was lawfully dismissed for performance-related matters.[25]  The factual matrix is contested by the parties. To resolve this contest would require the parties to largely present their evidentiary case in relation to the merits of the Application in advance of a merit hearing.  There is sufficient material before me to be satisfied that the Application is not without merit. 

1. In the circumstances of the Application, this factor weighs in favour of granting Mr Jacks a further period to make his application.

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

1. The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past.  This consideration is concerned with the importance of the application of consistent principles in cases of this kind; however cases of this kind quite often turn on their own facts. [26]

1. Hindley submit that Mr Jacks’ circumstances are analogous to those of Ms Dawson in Emma Dawson v Virgin Australia Airlines Pty Ltd[27] and as a matter of fairness between Mr Jacks and Ms Dawson, that Mr Jacks ought not be granted an extension of time to file his Application.  Ms Dawson was denied an extension to file her application after waiting until the last day of the 21 day period to file her application and encountering difficulties in filing her application electronically.  I am not satisfied that Mr Jacks is in a like position to Ms Dawson who provided no explanation as to why she did not endeavour to file her application until the last day of the 21 day time limit. 

1. I am satisfied that Mr Jacks’ circumstances are more akin to those of Mr Volchkov in Sergey Volchkov v Scantek Pty Ltd t/a Scantek Solutions[28] in which Commissioner Cirkovic was satisfied that Mr Volchkov had provided what the Commissioner considered was an adequate explanation for the delay in lodging his application after he too faced computer-related difficulties in uploading his Application on the last day of the 21 day time limit.

1. I am satisfied that this factor weighs in favour of granting Mr Jacks a further period to make his application.

Conclusion

1. Mr Jacks has provided an explanation for the two minute delay in the filing of the Application and for failing to file in the period prior to the end of the 21 day time limit. On balance, I am of the view that the combination of circumstances that Mr Jacks faced when viewed together, were out of the ordinary albeit not unprecedented.

1. Having considered each of the factors set out in section 366, I am satisfied that there are exceptional circumstances warranting Mr Jacks being granted an extension of time to lodge his application and shall exercise my discretion to grant him an extension of time to lodge his application until 13 October 2018.

1. The Application will be progressed by way of a conference at a time and date to be advised.

DEPUTY PRESIDENT

Appearances:

I Jacks, Applicant.
R Harding with D Dyer for the Respondent.

Hearing details:

2018.
Perth.
6 December.

Final written submissions:

Applicant, 16 November 2018.
Respondent, 16 November 2018.

<PR703364>

[1] [2013] FCA 291.

[2] Exhibit A1 at Attachment 4.

[3] Exhibit A1 at Attachment 5.

[4] Exhibit R2 at [24].

[5] Exhibit A1 at Attachment 6.

[6] Exhibit A1 at Attachment 7.

[7] Exhibit R2 at Attachment H.

[8] Exhibit A1 at Attachment 1; Exhibit R2 at [27] and Attachment I. 

[9] [2011] 203 IR 1.

[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a  Richmond Oysters (2018) 273 IR 156 at [38].

[11] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3 [2016] FWCFB 349 at [16].

[12] Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [8].

[13] Emma Dawson v Virgin Australia Airlines Ply Ltd [2017] FWC 3890 at [25]–[26].

[14] Diotti v Lenswood Cold Stores Co-op Society  T/A Lenswood Organic [2016] FWCFB 349 at [29]–[32].

[15] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters (2018) 273 IR 156 at [39].

[16] Exhibit A1

[17] Ibid.

[18] [2017] FWC 3890.

[19] Ibid.

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

[21] Exhibit A1.

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

[23] Exhibit R1 at [41].

[24] Kyvelos v Champion Socks Pty Lt, Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].

[25] Exhibit R1 at [43]–[44].

[26] Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818 at [31].

[27] [2017] FWC 3890.

[28] [2018] FWC 4710.

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