Jacob Duffy v Glen McPherson Services Pty Ltd T/A Glen McPherson Services Plumbing

[2017] FWC 4074

[2017] FWC 4074

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jacob Duffy
v
Glen McPherson Services Pty Ltd T/A Glen McPherson Services Plumbing
(C2017/3047)

COMMISSIONER RIORDAN SYDNEY, 15 AUGUST 2017

Application to deal with contraventions involving dismissal.

[1] Mr Jacob Duffy (the Applicant) was employed by Glen McPherson Services Plumbing Pty Ltd (GMSP) as an Apprentice Plumber on September 2015. Mr Duffy’s apprenticeship was terminated on 15 May 2017. Mr Duffy claims that he was terminated for exercising a workplace right. Mr Duffy lodged his general protections application on 6 June 2017, 1 day outside the statutory timeframe for lodging applications.

[2] Section 366 of the Fair Work Act 2009 (the Act) allows the Fair Work Commission (Commission) to extend the time on the basis that the delay was caused by “exceptional circumstances”.

“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.”

[3] Mr Duffy claims that the delay in filing his application was due solely to an error by his legal representative.

[4] Leave was granted in accordance with section 596 of the Act to allow Ms Carita Kazakoff from the Young Workers Centre (YWC) to represent Mr Duffy and for GMSP to be represented by Mr Graham Hills from Heinz & Partners.

[5] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group 1 where the Full Bench held:

“[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.

[14] 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.” 2

Reason for the delay - s.366(2)(a)

[6] Ms Kazakoff submitted that Mr Duffy was “blameless” when it comes to identifying the reasons why his application was lodged one day late. Ms Kazakoff advised that two solicitors from YWC had given Mr Duffy advice that his application had to be submitted on 6 June 2017. Further, following a number of discussions with YWC, Mr Duffy gave final instructions to file his general protections application on 31 May 2017.

[7] Ms Kazakoff submitted that the error at YWC was a simple calculation error made by two solicitors due to an internal process which has now been replaced to ensure the same scenario does not eventuate in the future. Ms Kazakoff argued that it would be extremely unfair for Mr Duffy to be denied the opportunity to prosecute his application due to the mistakes of his legal representative.

[8] Mr Hills submitted that there were no exceptional circumstances in this matter that would warrant the Commission granting an extension of time. Mr Hills argued that Mr Duffy should have undertaken his own calculation and not simply relied upon the advice of his employer.

[9] Mr Hills suggested that Mr Duffy did have a legal avenue to pursue – but that it was against his lawyer rather than GMPS.

[10] In Robinson v Interstate Transport Pty Ltd 3, a Full Bench of Fair Work Australia said:

“[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.

[25] The approach in Clark’s Case was summarised in Davidson’s Case as follows:

“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(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 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 carryout 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 or not an out of time application should be accepted.”…

[31] As noted by a Full Bench in D La Rosa v Motor One Group Pty Ltd, in the context of s.170CE of the WR Act:

“As is evident from Clarke, little might be required to satisfy the Commission that the applicant was blameless in the delay. In the context of a relatively short delay, it may simply be a matter of establishing that the applicant gave instructions to lodge [in this case] a Notice of Election and thereafter left matters in the handsof his or her representative.””

[11] In Todd Perry v Rio Tinto Shipping Pty Ltd 4, a Full Bench of the Fair Work Commission held:

“[30] There seems little doubt, based on the Appellant’s evidence before us, that the delay during the period between 27 October 2015 and the date on which the application was ultimately lodged was occasioned by representative error. In and of itself representative error will not provide an acceptable explanation for a delay. A person relying upon representative error must also show that the person was blameless and did not by act or omission cause or contribute to the error.

[31] On the evidence it seems clear to us that the Appellant acted promptly in engaging solicitors. He provided the solicitors with all relevant documents, including the letter of 26 October 2015, promptly. He received advice from his solicitors that the time for making the application, the subject of this appeal, commenced to run from 26 October 2015 and having received legal advice acted in accordance with that advice. There is nothing in the evidence suggesting that by his actions or through his omission the Appellant contributed to the error. In the circumstances, we are satisfied that the Appellant was blameless for the representative error made by his solicitors, namely in furnishing the Appellant with advice that the date from which time is to be reckoned for the purposes of making his application was from 26 October 2015. We are satisfied that the error identified caused the delay and explains entirely the period of delay between 27 October 2015 and the day on which the application was lodged.

[32] For these reasons we are satisfied that there is an acceptable explanation for the whole period of the delay. This is a matter that therefore weighs in favour of the Appellant.”

[12] I accept the evidence from Ms Kazakoff that Mr Duffy was blameless for the delay in his application. Mr Duffy gave clear instructions five days before his application should have been filed. His application was not filed due to an error by YWC.

[13] Taking into account the obiter in Robinson and Perry 5, I am satisfied that Mr Duffy has provided an acceptable explanation for the one day delay in submitting his application.

[14] I have taken this into account.

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

[15] GMSP submitted that they had no knowledge that Mr Duffy disputed the termination of his apprenticeship until they were notified of Mr Duffy’s application by the Commission. Further, GMSP advised that Mr Duffy approached the Victorian Registration & Qualifications Authority on the same day (15 May) to notify them that he no longer worked for GMSP.

[16] Mr Duffy sought legal advice on the second day after his termination. He did not try to contact GMSP.

[17] I have taken this into account.

Prejudice to the employer - s.366(2)(c)

[18] Mr Duffy’s application was filed only one day late. I am not convinced that any extension of time would cause GMSP any more prejudice than if the application had been lodged the day before, on June 5 2017. This issue is a neutral consideration in this circumstance.

[19] I have taken this into account.

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

[20] There are contested facts in relation to the conversation that took place between Mr Duffy and Mr McPherson on 15 May 2017. What is not in contest is that Mr Duffy was attending his trade school, Federation University, contrary to a direction issued to him by Mr McPherson to not attend trade school for the month of May due to work commitments. This direction appears to be at odds with the Victorian Education and Training Reform Act. As an apprentice, Mr Duffy has a right to be trained at an appropriate education facility. Mr McPherson has an obligation to allow Mr Duffy to attend for that training. GMSP acknowledged that they are bound by this Act.

[21] As a result, I am prepared to accept that Mr Duffy has an arguable case that he was dismissed for exercising his workplace right of attending his off the job training.

[22] I have taken this into account.

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

[23] I am unaware of any other employee in a similar position at GMSP. As a result, this is a neutral consideration.

[24] I have taken this into account.

Conclusion

[25] GMSP submitted that Mr Duffy’s application should be dismissed because the reasons for the delay could not be described as “exceptional circumstances”. Ms Kazakoff argued that YWC caused the delay, that Mr Duffy was blameless in causing the delay and that Mr Duffy has a strong case to prosecute on the basis that he was dismissed for attending Trade School.

[26] In Perry 6 the Full Bench held:

“[42] It has generally been accepted in decisions of this tribunal and its predecessor in dealing with the question of whether to allow a further period within which this kind of application is made, that the existence of a representative error causing the delay and for which a person is blameless, absent other countervailing factors weighing against a conclusion there are exception circumstances, will justify such a conclusion that there are exceptional circumstances. Subject to other discretionary consideration, the existence of exceptional circumstances in such a case will support the exercise of the discretion to extend time. The rationale for this view is that the errors of the representative should not be visited upon an applicant in circumstances where an applicant has not contributed to the error.” 7

[27] I am satisfied that the Full Bench decision in Robinson and Perry 8are on point. I find that Mr Duffy was blameless in relation to the cause of the delay in submitting his application. Mr Duffy sought legal advice two days after his apprenticeship was terminated. The delay in filing his general protections application was caused by his representative miscalculating the statutory cut off date. As a result, I am satisfied that Mr Duffy’s circumstances were out of the ordinary course, unusual, special or uncommon, i.e., they were exceptional.

[28] The application for an extension of time for one day is granted in accordance with section 366(2) of the Act is granted to allow Mr Duffy to submit his general protections application.

[29] I so Order.

COMMISSIONER

 1 [2011] 203 IR 1.

 2 Above note at [13].

 3   M N Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728.

 4   Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 (28 September 2016).

 5   M N Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728.

 6   Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 (28 September 2016).

 7 Ibid [42].

 8   M N Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR595086>