Ibrahim Abdallah v ISS Facility Services Australia Limited

[2016] FWC 113

[2016] FWC 113

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ibrahim Abdallah
v
ISS Facility Services Australia Limited
(U2015/15137)

COMMISSIONER GREGORY MELBOURNE, 7 JANUARY 2016

Application for extension of time.

[1] Mr Ibrahim Abdallah commenced employment with ISS Facility Services Australia Limited (“ISS”) in May 2008 and worked as a Security Guard until his employment ended on 26 October 2015 when he was terminated with immediate effect. The events leading up to and including his termination are in dispute between the parties.

[2] Mr Abdallah initially sought legal advice on 12 October 2015 from a firm of Solicitors, Defteros Lawyers (“Defteros”), about an incident at his workplace. He subsequently instructed the firm to lodge an unfair dismissal application on his behalf. He provided these instructions on the day he was dismissed, being 26 October 2015.

[3] However, the application was not received by the Commission until 17 November 2015, one day after the 21 days provided by the Fair Work Act 2009 (Cth) (the Act) in which to make application. Mr Abdallah now claims the delay was caused by the actions of his legal representative, and seeks an extension of time in which to make application. This decision deals with that application. The application is opposed by ISS.

[4] The matter was initially set down for hearing on 14 December and directions issued for filing and service of evidence and submissions, however, the parties subsequently advised the Commission they were agreeable to the matter being determined “on the papers”. Defteros provided a written submission dated 19 November 2015. The submissions provided on behalf of ISS were lodged on 11 December by its National General Manager, Industrial Relations, Mr Jed Moore.

The Issue to be Determined

[5] Section 394(3) of the Act provides that the Commission may extend the time for filing an unfair dismissal application if it believes there are “exceptional circumstances” that warrant an exercise of this discretion, taking into account the following considerations:

“(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.” 1

[6] Therefore, are there “exceptional circumstances” existing in all the circumstances of this matter to warrant the Commission exercising its discretion to grant Mr Abdallah additional time in which to make application?

Evidence and submissions

[7] The submissions provided on behalf of Mr Abdallah indicate he first approached the firm of Defteros Lawyers on 12 October 2015 following an incident at his workplace. He was then required to attend further meetings with his employer as part of the investigations carried out into the incident. A lawyer from Defteros subsequently attended meetings on 13 October and 15 October involving ISS and Mr Abdallah, as his representative.

[8] However, on 26 October Mr Abdallah was again asked by ISS to attend a further meeting at which he was told his employment was terminated with immediate effect. On the same day Mr Abdallah subsequently instructed Defteros to lodge an unfair dismissal application on his behalf with the Fair Work Commission. 2

[9] The submissions provided on his behalf indicate he was then involved in a series of conferences and email exchanges over the following days with his legal representatives in order to prepare and complete his unfair dismissal application. It was finally completed on Friday, 13 November 2015 and placed in the post on the same day with the expectation it would be received on the following Monday, 16 November.

[10] However, it is also submitted that Defteros were of the view that an application need not actually be received by the Commission within the 21 day period provided for in s.394(2) in order for it to be made within the “standard time limit”. The submissions indicate instead that the lawyer dealing with the matter at Defteros believed the requirement to file within the 21 day period simply meant the application was required to be placed in the post within that timeframe, rather than actually being received by the Commission within that period.

[11] The application was finally received by the Commission on 17 November, one day outside the “standard time limit,” and Mr Abdallah submits this delay was entirely due to “representative error,” given the circumstances outlined above.

[12] The submissions provided on his behalf also refer briefly to each of the considerations in s.394(3) in the following terms.

(a) the reason for the delay;

[13] The reasons for the delay are essentially dealt with in the submissions already referred to. In summary, it is submitted that the reason for the delay is representative error on behalf of the Solicitor preparing the application, in that she did not ensure the application was lodged within the standard 21 day time period in circumstances where there was no reason why this requirement could not be complied with.

(b) whether the person first became aware of the dismissal after it had taken effect;

[14] The submissions indicate Mr Abdallah was made aware of his dismissal on the day it took effect.

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

[15] The submissions indicate Mr Abdallah sought legal advice following an incident at work, prior to his termination. The Solicitor acting on his behalf subsequently attended meetings with ISS that occurred as part of the investigation into the incident. These took place prior to Mr Abdallah’s dismissal. Mr Abdallah also gave instructions to his Solicitor to make an unfair dismissal application on his behalf as soon as he became aware his employment had been terminated.

(d) prejudice to the employer (including prejudice caused by the delay);

[16] The submissions provided on behalf of Mr Abdallah suggest the delay in making the application only involves one day and represents “a very minimal delay.” It is also submitted that Mr Abdallah is not seeking reinstatement and as a result “…there can be no prejudice to the employer in this instance.” 3

(e) the merits of the application;

[17] The submissions simply indicate in regard to this consideration that:

“The claim for unfair dismissal is a strong claim, as outlined in Mr Abdallah’s application. The termination of the employment was not warranted or justified and as such, Mr Abdallah should be provided with the opportunity to have his application heard by the Commission.” 4

(f) fairness as between the person and other persons in a similar position.

[18] Again it is submitted in this context that:

“Mr Abdallah acted well within the 21 day time limit at all times and as noted in Clark v Ringwood Private Hospital (P5279) at page 8, ‘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.’ Previous applicants in Mr Abdallah’s circumstances have been granted an extension of time.” 5

[19] The submissions conclude by indicating:

“As the delay in this instance was for a period of one day due to a representative error, Mr Abdallah did not contribute to that delay and there are strong merits for his claim, we submit that an extension of time should be granted by the Fair Work Commission.” 6

[20] The submissions provided on behalf of ISS oppose the application for an extension of time. While acknowledging that representative error may provide grounds for an extension of time ISS submits the Commission is required in each case to give consideration to the particular circumstances giving rise to the delay. They also submit that the Applicant has the onus of proving that “exceptional circumstances” exist, and the Commission cannot be satisfied those circumstances exist in this matter based on the submissions provided in the letter dated 19 November 2015 from Defteros to the Commission. 7 ISS submits instead that:

“…The correspondence contains mere assertions as to the nature and causation of the delay and ought not to be given any weight.” 8

[21] ISS also submits it is well established that mere ignorance of the statutory time limit, as relied upon by Mr Abdallah’s representative in the present matter, is not an exceptional circumstance. It submits a similar situation was considered in the matter of Varcoe v Leo Fardell Pty Ltd 9 in which the Commission found the issue of whether an application sent by mail would arrive on time was unremarkable and was, instead, regularly encountered.

[22] ISS also acknowledges that a distinction can be drawn between the actions of an Applicant acting on their own behalf, and the actions of a representative acting on behalf of the Applicant, however, if the reason for the delay was because of the misconceived belief by the lawyer acting on behalf of Mr Abdallah that posting the application within the 21 day period satisfied the relevant statutory requirements, then evidence should be provided in support of this submission. ISS submits the lack of evidence going to these circumstances, and to the instructions Mr Abdallah provided to his Solicitor, do not allow the Commission to conclude that the delay was caused by representative error.

[23] The submissions provided by ISS also make reference to the other considerations in s.394(3). It submits as follows:

“s.394(3)(b) it is agreed that the Applicant became aware of the dismissal on the date that it took effect.

s.394(3)(c): it is asserted that the Applicant instructed his representatives to file an application on 26 October 2015, although no evidence has been led by the Applicant to establish this assertion.

s.394(3)(d): it is acknowledged that the Respondent is not substantially prejudiced by the delay, however, the Respondent is entitled to rely on the surety that if an application is not filed within 21 days of the dismissal, in the absence of exceptional circumstances, its exposure to an unfair dismissal claim expires. The Respondent refutes the assertion in the Applicant’s correspondence of 19 November 2015 that ‘there can be no prejudice to the employer in this instance.’ and submits that it would suffer the usual prejudice if an extension of time were granted and in any event an absence of prejudice is not grounds to grant the extension.

s.394(3)(e): as no evidence has been filed, the Commission has a limited capacity to assess the merits of the claim. The Respondent contends that the termination was for a valid reason and was not harsh, unjust or unreasonable, although it is acknowledged that the Commission could not dismiss the application as having no merit on the basis of the material currently before it.

s.394(3)(f): the Respondent submits that this criterion is not a relevant consideration in this matter as the circumstances giving rise to the delay are specific to the Applicant. In the alternative, this ought to be a neutral consideration as the Commission has decided similar factual scenarios to both warrant an extension of time and not to justify an extension of time.” 10

[24] ISS also refers to the decision of the Full Bench in Robinson v Interstate Transport Pty Ltd (Robinson) 11 as being a relevant authority for the approach to be applied in dealing with a claim of representative error as an acceptable explanation for late lodgement. The submissions also note that the Full Bench also made reference in that decision to the decision in Clark v Ringwood Private Hospital (Clark’s case), 12 which drew a distinction between circumstances in which an Applicant is blameless, and one in which he/she should accept some blame for the delay in lodging.

Consideration

[25] In considering an application for an extension of time the Commission must have regard to each of the considerations set out in s.394(3) of the Act in determining whether “exceptional circumstances” exist to warrant an exercise of the discretion to extend time in which to make application. A number of decisions of this Tribunal and its predecessors have also considered what is required to find that “exceptional circumstances” exist to justify an extension of time being granted. The decision of the Full Bench in Nulty v Blue Star Group (Nulty) 13 was handed down in the context of a general protections application, however, the principles have been held to be of broader application. Relevant extracts from the Full Bench decision are contained at [13] to [14] in the following terms:

“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.

Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 14

[26] The decision makes clear “exceptional circumstances” might be found to exist because of a single factor, or a combination of factors. I now turn to deal with the circumstances of this matter, and the submissions of the parties, by reference to these considerations and the matters in s.394(3) that I must have regard to.

(a) the reason for the delay

[27] In considering the reason for the delay ISS emphasises in its submissions that no evidence has been provided by Mr Abdallah’s representative in support of the submissions made about the events associated with him providing instructions to prepare and file an application on his behalf, or about the eventual reason for the delay in filing, being the posting of the application by mail, and the belief by his representative that the statutory requirements had thereby been met.

[28] I readily acknowledge in response that in circumstances where the delay is claimed to be attributed to the fault of the Applicant’s representative it might be expected that the representative would have done more by way of providing evidence in support of that submission.

[29] However, I am also satisfied that there is no real dispute about the reason for the delay, being the failure by Mr Abdallah’s Solicitor to lodge the application within time, in circumstances where it had been provided with clear instructions and adequate time to do so. While no evidence has been provided in support of the submissions made on behalf of Mr Abdallah, there is also no evidence contradicting those submissions.

[30] The submissions provided by both parties make reference to the Full Bench decision in Clark’s case, which set out what were described as “general propositions” to be considered when representative error is relied upon to support an application for an extension of time when it stated (references omitted):

“…the following general propositions should be taken into account in deciding whether or not representative error constitutes an acceptable explanation for delay:

1. 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.

…

2. 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.

…

3. 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 applicants efforts to ensure that the claim is lodged.

4. 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 pursuant to s.170CE(8).” 15

[31] The decision in Robinson is also referred to in the submissions provided by ISS. In that matter the Applicant gave a clear direction to his Solicitor to make application on his behalf, and the delay in lodging was subsequently due to the Solicitor overlooking a reminder on the firm’s case management system. This was despite the fact that after providing instructions to his Solicitor the Applicant did little from that point to enquire about progress of the matter. The application was dismissed at first instance and the decision appealed. The Full Bench, firstly, noted with approval the approach adopted in Clark’s Case. It continued to indicate:

“[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.” 16

[32] It continued to indicate in the next paragraph :

“[30] …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 the providing clear instructions to Mr Tayler to lodge his application.” 17

[33] It continued:

“[36] We find that there was an acceptable explanation of the reason for the delay in lodgement of the application — representative error resulting from the oversight of Mr Robinson’s original representative of the electronic reminder whilst the filing of the application was within his care and responsibility. In circumstances where Mr Robinson had promptly sought legal advice following his termination, promptly executed a client agreement prepared on his instructions and, upon doing so, immediately instructed his original representative to lodge a general protections application, we find that he was entitled to rely upon his representative to act on his clear instructions to file an application and was blameless for the delay in lodgement of the application.” 18

[34] The Full Bench accordingly upheld the appeal concluding:

“…In our view, the error by Mr Robinson’s original representative, in circumstances in which Mr Robinson is blameless for the delay, constitutes an exceptional circumstance in which the application should be accepted late.” 19

[35] In the present matter the submissions provided on behalf of Mr Abdallah indicate he gave instructions for an unfair dismissal application to be lodged on his behalf on the day he was dismissed. They also indicate he was in subsequent contact with the firm on several occasions after that point in regard to the preparation of his application. He presumably concluded as a consequence of these interactions that the application was being prepared and would be lodged in accordance with the relevant statutory requirements. I am satisfied in these circumstances that Mr Abdallah can be considered to be completely “blameless” for the fact his application was eventually not received by the Commission within the standard 21 day time limit, and the blame can instead be completely apportioned to his representative.

[36] It is also clear that it was not Mr Abdallah’s lack of knowledge about the statutory time limit that was the cause of the delay. It was, instead, the lack of understanding by his legal representative about the relevant requirements. I find this lack of understanding to be most unusual and to constitute an “exceptional circumstance”.

(b) whether the person first became aware of the dismissal after it had taken effect;

[37] Mr Abdallah became aware of his termination as soon as it took effect, and immediately took action to dispute the dismissal by instructing his legal representative, on the same day, to prepare and lodge an unfair dismissal application on his behalf.

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

[38] Mr Abdallah took action immediately to dispute his dismissal by instructing his legal representatives to lodge an unfair dismissal application on his behalf. He was then in ongoing contact with the firm in regard to the preparation of his application.

(d) prejudice to the employer (including prejudice caused by the delay);

[39] The submissions provided on behalf of Mr Abdallah suggest the delay is minimal, given the application was only received by the Commission one day after the standard time limit, and there will be limited prejudice to ISS as a consequence if he is allowed to proceed with his application. These submissions are acknowledged, however, there will always be some prejudice to an employer if additional time is granted to make application, given that the employer will inevitably then have to do whatever is required to respond to the application.

(e) the merits of the application;

[40] The Commission is not in any position at this time to form any views about the respective merits of the matter, given the limited submissions provided by the parties in regard to this consideration. However, it is also noted that previous decisions of the Tribunal have determined that the Commission is not required at this point to form a concluded view about the respective merits of the matter. 20

(f) fairness as between the person and other persons in a similar position;

[41] This consideration appears to be of limited relevance in all the circumstance of this matter.

[42] As indicated already I am satisfied, in conclusion, that Mr Abdallah is completely “blameless” in all the circumstances of this matter for the fact his unfair dismissal application was received by the Commission one day after the expiry of the 21 day standard time limit following his dismissal on 26 October. I am also satisfied he instructed his legal representative on the day he was dismissed to prepare and lodge an unfair dismissal application on his behalf. At that point he had already been in contact with his legal representatives prior to his termination as part of the ongoing investigations that occurred about the incident at work that eventually led to his dismissal.

[43] I am also satisfied Mr Abdallah cannot be required or expected to have done anything more to check or confirm whether the application was subsequently going to be filed on his behalf within the required time period, given he remained in contact with his Solicitor as part of the processes of preparing his application. He clearly would have had every expectation at that point that it was going to be filed in accordance with the relevant statutory requirements.

[44] The failure to lodge was instead solely due to the failure of his legal representative, and apparently because of the misguided belief, in particular, that the relevant statutory requirements were satisfied by posting the application within the 21 day period following his dismissal. The significance of this misunderstanding is an exceptional circumstance in itself. I am also satisfied that Mr Abdallah should not be further hindered from making his application by the fact his legal representative then failed to provide any evidence in support of the submissions made on his behalf for an extension of time to be granted.

[45] I am satisfied, in conclusion, having regard to all the circumstances of this matter and the considerations in s.394 that I am required to take account of, that it is appropriate for the Commission to exercise its discretion under s.394(3) to grant Mr Abdallah additional time in which to make his application. An order to this effect will be issued in conjunction with this Decision. The matter will also now be referred back to the unfair dismissal panel and listed to deal with the substantive application.

COMMISSIONER

Final written submissions:

The Applicant’s representative wrote to the Commission on 4 December 2015 and advised that they would be relying on a letter written on 19 November 2015.

The Respondent provided written submissions on 11 December 2015.

 1   Fair Work Act 2009 (Cth) at s.394(3)

 2   Letter from Defteros Lawyers to the Fair Work Commission dated 19 November 2015 at page 2

 3   Ibid

 4   Ibid

 5   Ibid at page 3

 6   Ibid

 7   Outline of Submissions of the Respondent at para 11.

 8   Ibid

 9   [2010] FWA 6025,

 10   Outline of Submissions of the Respondent at para 14-20

 11   [2011] FWAFB 2728.

 12 (1997) 74 IR 413.

 13   [2011] FWAFB 975.

 14   Ibid at para 13 to 15.

 15   Above n.xii; Dec 1159/97 S Print P5279 at page 7

 16 Ibid at [29].

 17 Ibid at [30].

 18 Ibid at [36].

 19 Ibid at [41].

 20   Kyvelos v Champion Socks Pty Limited (Print T2421)

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