Jai Smith v A&J Container Services

[2017] FWC 5084

[2017] FWC 5084

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jai Smith
v
A&J Container Services
(C2017/4628)

COMMISSIONER BISSETT MELBOURNE, 5 OCTOBER 2017

Application to deal with contraventions involving dismissal – jurisdictional objection - extension of time – application granted.

[1] Mr Jai Smith was dismissed from employment with A&J Container Services on 6 July 2017. Mr Smith claims that the dismissal was related to a general protection afforded under the Fair Work Act 2009 (FW Act). Mr Smith lodged his application with the Fair Work Commission (Commission) to deal with the contravention on 18 August 2017.

[2] Section 366(1) of the FW Act requires that a general protections application must be made within 21 days of the time the dismissal took effect. Mr Smith made his application 43 days after the date the dismissal took effect meaning his application was made 22 days out of time.

[3] Mr Smith now seeks an extension of time within which to make his application. A&J Container Services objects to the extension being granted.

[4] I granted permission to Mr Smith to be represented by a lawyer being satisfied that he was unable to effectively represent himself. I also granted permission to A&J Container Services to be represented being satisfied it would be unfair not to allow it to be represented taking into account fairness between it and Mr Smith in the proceedings.

[5] Mr Smith gave evidence on his own behalf and Ms Monica Passfield gave evidence for Mr Smith.

Relevant Legislation

[6] The Commission has the power, pursuant to s.366(2) of the FW Act to extend the time within which a general protections application involving dismissal can be made. Section 366 of the Act states:

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.

[7] It is therefore necessary that I consider each of the requirements under s.366(2) of the FW Act and determine if there are exceptional circumstances such that I should grant the extension of time sought by Mr Smith.

Reason for the delay

[8] Mr Smith said that he made an application for the Commission to deal with a general protections dispute not involving dismissal on 27 July 2017 1 – 21 days after the date his dismissal took effect. He said that he made this application in error but he was confused by the wording on the forms. Mr Smith said that he had been made redundant and he did not understand that this was also a dismissal.

[9] Mr Smith said that on 28 July 2017 he spoke to “Anthony” from the Commission who wanted to clarify if he had used the correct form. Mr Smith said that “Anthony” said he would call him back if there was “an issue” but if there was no issue the matter could be sorted out at the conference the Commission would schedule.

[10] Ms Passfield gave evidence that she was a friend of Mr Smith and that she had tried to assist in him in making his application.

[11] She said that she, with Mr Smith, had looked online for the correct form to lodge and that she had got confused between dismissal and redundancy.

[12] Ms Passfield said that on 28 July 2017 she received a phone call from “Anthony” from the Commission (she was listed as Mr Smith’s representative on the form lodged) who indicated to her that Mr Smith may have lodged the incorrect form but he would get back to her if there was an issue. He did not call back.

[13] Ms Passfield said that she spoke to “Lidia” from the chambers of the Commissioner dealing with the application who indicated that the conference scheduled before the Commissioner could proceed and the Commissioner would sort out any issues at the conference.

[14] Ms Passfield said she believed she had undertaken due diligence in trying to complete the correct form for Mr Smith’s circumstances.

[15] Ms Passfield said that she and Mr Smith had a conversation by phone with the Marrickville Legal Centre prior to submitting Mr Smith’s application. This conversation was general in nature and did not go to the correct form to use for an application by Mr Smith. Ms Passfield said that the first face to face discussion Mr Smith had with the Marrickville Legal Centre was on 14 August 2017, the day of the conference before Commissioner Cambridge.

[16] Mr Smith submitted that the error made in lodging the incorrect form was a genuine error made by an unrepresented party. He said that he was not aware of the error until A&J Container Services provided him with a copy of its response form at the commencement of the conference. He submitted that Mr Smith had adequately explained the delay.

[17] A&J Container Services said that the evidence of both Mr Smith and Ms Passfield is vague but, in any event, it submitted that:

● Mr Smith had the benefit of legal advice prior to lodging the incorrect form;

● Mr Smith received a call from the Commission in which he was told he had lodged the incorrect form;

● Ms Passfield spoke to the Marrickville Legal Centre after receiving the call from the Commission;

● Marrickville Legal Centre should have known it was the wrong form lodged by Mr Smith;

● Mr Smith knew it was the wrong form but did nothing about it.

[18] A&J Container Services further submitted that Mr Smith had included an incorrect email address for Ms Passfield, as his representative on the form submitted, and it was for this reason he had not received the employer response form earlier than the conference before the Commission.

[19] Action taken to dispute the dismissal

[20] Mr Smith submitted that he took action to make an application (albeit on the wrong form) within 21 days of his dismissal.

Prejudice to the employer

[21] Mr Smith submitted that there is no prejudice to A&J Container Services caused by the delay in lodging the correct application as it had made a substantial response to the initial application and its response to the correct (late) application was not different.

[22] A&J Container Services submitted that it had incurred costs in responding to the first application and there were now expanded grounds relied on by Mr Smith in this application.

Merits

[23] The grounds for dismissal (ie. redundancy) are disputed between Mr Smith and by A&J Container Services.

[24] It is not possible, on the basis of the material before me, to draw any conclusion as to the merits of the application. It is, for this reason, a neutral matter in my consideration.

Fairness

[25] There are no other employees in the same situation as Mr Smith. Fairness is therefore not a relevant consideration.

Approach of the Commission

[26] An extension of time can only be considered by the Commission if exceptional circumstances exist taking into account those matters outlined above.

[27] The meaning of exceptional circumstances was considered in the decision in Nulty v Blue Star Group 2 where the Full Bench of Fair Work Australia found:

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…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.

[28] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[29] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3 which, although concerned with the unfair dismissal application, contained the following statement, which 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.”

Consideration

[30] I am satisfied, on balance, that Mr Smith has provided a satisfactory explanation for the delay in making his application. This is not to say he is blameless in the errors that led to the incorrect application being made and the time it therefore took to discover the error and make a correction to it. This includes an incorrect email address for his representative (Ms Passfield).

[31] I accept that Mr Smith was confused by the terminology used. At no stage did A&J Container Services tell Mr Smith that he was dismissed. The language of its correspondence to Mr Smith was that his employment was terminated “because of redundancy.” The nuance of such terminology may well have been lost on Mr Smith.

[32] Further, Mr Smith did seek some advice from the Marrickville Legal Centre both before making his application and, through Ms Passfield, at some stage after the Commission suggested that the incorrect form may have been used. It is apparent that at no stage did the staff at the Marrickville Legal Centre advise Mr Smith that he had lodged the incorrect application, suggesting some degree of representative error. This provides a sufficient basis to conclude that Mr Smith took action within the 21 day period to make his application.

[33] Had Mr Smith filed the correct application on the date he filed the incorrect form, his application would have been made within the time period specified in the FW Act.

[34] Both Mr Smith and Ms Passfield had some discussion with Commission staff and thought they would receive a call back if there was a problem. Whilst perusal of the Commission file indicates that there was a discussion between the Commission and Mr Smith and Ms Passfield there is no indication that the Commission staff member said they would get back to Mr Smith or Ms Passfield. However, their evidence was consistent on this question and there is no reason to doubt what they each believed they had been told.

[35] A further file note indicates that, in a discussion with the relevant Commissioner’s chambers Ms Passfield indicated that she had been advised by a staff member at the Commission that redundancy was not really a dismissal but the person would make inquiries and call her back and she never received a call back.

[36] The file notes would indicate some confusion as to what Mr Smith or Ms Passfield was told when they had initial contact with the Commission. Clearly Ms Passfield understood that someone would get back to her if there was a problem with the application made, no-one did so she and Mr Smith had no reason to know they had made the wrong application.

[37] I am satisfied that, in finding the error in the application made, Mr Smith took steps to lodge the correct application.

[38] A&J Container Services submitted that Mr Smith had access to legal advice prior to making his application. If I accept the submissions of A&J Container Services then representative error clearly played a role in the actions taken by Mr Smith. There is no suggestion he acted contrary to any legal advice given to him. Had Mr Smith not sought legal assistance it is unlikely I would have found as I have.

[39] It is not usual for a party to have had an amount of contact with Commission staff and a clearly incorrect application be allowed to run its course without some advice or clear indication of the possible error.

[40] None of the other matters I am required to consider weigh against the finding of exceptional circumstances or the grant of an extension of time.

[41] For these reasons I am satisfied that, on balance, exceptional circumstances exist such that an extension of time should be granted.

[42] I have therefore determined to grant an extension of time to Mr Smith to 15 August 2017 to make his general protections application involving dismissal.

[43] An order 4 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

B. Clarke for the applicant.

R El Daghl for the respondent.

Hearing details:

2017.

Melbourne:

September 21.

 1   Jai Smith v A&J Container Services T/A A&J Container Services, C2017/4154.

 2 (2011) 203 IR 1, [13].

 3   [2016] FWCFB 349.

 4   PR596541/

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