James Bennett v McCarrolls of Moss Vale Pty Ltd T/A McCarrolls Automotive Group

[2017] FWC 1412

[2017] FWC 1412

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Bennett
v
McCarrolls of Moss Vale Pty Ltd T/A McCarrolls Automotive Group
(U2016/12721)

DEPUTY PRESIDENT DEAN SYDNEY, 14 MARCH 2017

Application for unfair dismissal remedy – extension of time.

[1] Mr James Bennett (the Applicant) was employed by McCarrolls of Moss Vale Pty Ltd T/A McCarrolls Automotive Group (the Respondent) until he resigned on 23 September 2016.

[2] On Sunday 16 October 2016 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) was filed electronically by Mr Bruce Jenkins on behalf of the Applicant. Mr Jenkins was described in the Applicant’s submissions as a friend of the Applicant who had been engaged to support and assist the Applicant.

[3] The application received by the Fair Work Commission (the Commission) on Monday 17 October 2016 was lodged one day outside the 21 day time limit prescribed by the Act.

[4] In its response filed on 26 October 2016, the Respondent objected to an extension of time and raised the jurisdictional objection that the Applicant was not dismissed.

[5] The matter was listed for hearing by telephone on 10 March 2017 to determine whether I should extend time for the Applicant to pursue his application. At the hearing, Mr Jenkins sought permission to represent the Applicant as a paid agent. The Respondent raised an issue as to whether Mr Jenkins was a paid agent, and therefore able to seek permission to represent the Applicant. At the commencement of the hearing I outlined the difference between a paid agent (who needed permission to represent the Applicant), and a person who would support or assist the Applicant. Mr Jenkins pressed that he was a paid agent and sought permission to appear. After hearing from the Respondent, I granted both parties permission to be represented. The Respondent was represented by Ms K Ausden of Kemp Strang Lawyers.

[6] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time.

[7] Section 394(3) of the Act provides:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.

[8] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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.”

[9] 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 2.

[10] I now deal with each of the provisions of s.394(3) of the Act.

Reason for the delay

[11] In considering whether the reason for the delay amounts to exceptional circumstances, I must be satisfied that there is a credible reason for the whole period of the delay 3. The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, 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 circumstances4. In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic5, the Full Bench explained the correct approach by reference to the following example:

“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.”

[12] In this case, the Applicant relied on representative error as the reason for the delay.

[13] Mr Jenkins gave evidence that the reason for the delay was an oversight by him combined with other work pressures. He said that he was not a regular practitioner in the Commission and as a result it took him longer to determine the correct application to make. He confirmed he understood his obligation to file the application by 14 October 2016, however he was travelling in Europe from 10 October and missed the deadline because of confusion with the time difference between Europe and Australia, and because of difficulties in actually filing the application.

[14] The Applicant gave evidence that he was assisted and represented by his friend, Mr Jenkins, and was informed by Mr Jenkins that he would file the unfair dismissal application on his behalf. The Applicant said Mr Jenkins told him on 10 October 2016 that he was required to travel to Istanbul, Turkey on urgent business that evening. He was later told that the application was not lodged until 16 October 2016.

[15] The Respondent argued that this did not constitute exceptional circumstances. It submitted that ‘it is not exceptional to say that my friend went overseas and missed the filing date.’

[16] The general approach of the Commission where representative error is relied upon to explain the late lodgement of an application has been considered by a number of Full Benches. The following general propositions, summarised by the Full Bench in Davidson v Aboriginal and Islander Child Care Agency 6, 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 carry out 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.

[17] In Officeworks Ltd v David Parker 7, a Full Bench of the Commission said:

“[14] We consider that this is also the approach which should be adopted in relation to s.394(3) of the Act and the late lodgement of unfair dismissal applications. Representative error may be a sufficient reason to allow a further period for an application to be made. However all the factors in s.394(3) must be taken into account in determining whether there are exceptional circumstances that warrant extending the time limit.

[15] The approach which has been adopted by the Commission in relation to representative error applies principles which have been applied in the courts in relation to delays or negligence by solicitors in making applications or instituting proceedings within time limits.

[16] In the circumstances of the present matter we consider that, in deciding whether or not representative error will constitute an acceptable explanation for delay in the lodgement of the application, consideration should be given to a variety of factors including the extent to which the applicant’s own conduct contributed to the delay and the nature of the representation concerned.

[17] Under the Act, there is no general limitation as to whom a party might be represented by in proceedings before the Commission. However a person may only be represented by a lawyer or paid agent in a matter before the Commission, including by making an application or submission on behalf of the person, with the permission of the Commission. In general, the legislative policy is that persons will act on their own behalf in making applications and submissions to the Commission. In so doing, the person may seek the advice or support of other persons. As the Senior Deputy President observed in relation to unfair dismissal matters in her reasons for decision:

[11] Applicants are regularly represented before the Commission by a variety of persons who are not legally qualified or even experienced in industrial law. Solicitors do not have a right to appear in the Commission. Permission to appear must be specifically granted.

[12] Support persons who assist applicants to lodge their applications and appear before the Commission may be family members, friends and even sometimes social workers or Church support persons.

[18]In circumstances where ‘representative error’ is relied upon in Commission proceedings as an excuse or explanation for the failure to meet time limits, it is appropriate to have regard to the professional qualifications and expertise of the representative concerned. This will enable an assessment to be made as to the extent to which it was reasonable for a party to rely upon the skills and expertise of the representative in acting on their behalf. Clearly where the representative is a lawyer, an experienced industrial advocate, or an officer or employee of an organisation of employers or employees, it might more readily be concluded that representative error provides an acceptable explanation for the delay and such error should not be blamed upon the party concerned. However where the representative chosen has no experience or expertise in the area of legal and employment matters, there might be less justification for reliance on that person and the responsibility for delays or other errors might be attributed to the party concerned. 

[19]In general, representative error may be more readily accepted as an explanation or excuse where the person relied upon has professional qualifications or expertise in dealing with legal and employment matters than where reliance is placed on a family member or friend.” (citations omitted)

[18] In this case, Mr Jenkins confirmed that he was not a lawyer and not experienced in industrial law. He said he was involved in corporate finance.

[19] Having considered the evidence and submissions of the Applicant, I am not satisfied that there is an acceptable reason for the delay. I have come to this view for a number of reasons.

[20] Firstly, in my view it was not reasonable for the Applicant to have relied on a friend/agent who was not experienced in industrial law to file his application on time, in circumstances where he had been told by Mr Jenkins that he had to travel to Europe for urgent business.

[21] Secondly, there was no cogent reason provided as to why the application could not have been filed prior to Mr Jenkins departing the country. In this regard, the Applicant’s employment ended on 23 September 2016. Mr Jenkins departed on 10 October 2016. The Applicant’s resignation letter, which was sent by Mr Jenkins and on Mr Jenkin’s business letterhead, states in part that Mr Jenkins was ‘instructed to make the appropriate application to the Fair Work Commission in relation to the bullying and the constructive dismissal. The termination constitutes unfair dismissal in these circumstances which dismissal is unfair, unreasonable and harsh.’ The resignation letter makes it clear that the Applicant had already made a decision to lodge an unfair dismissal claim at the time of his resignation.

[22] Thirdly, in my view it was foreseeable that lodging an application from Turkey may have been problematic, and I do not accept confusion as to the time difference an acceptable reason for the delay.

[23] Finally, I do not accept being busy at work to be an acceptable reason for the delay.

[24] This weighs against the granting of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[25] The Applicant resigned his employment. There is no dispute that his employment ended on 23 September 2016 and that he was aware of this. This weighs against the granting of an extension of time.

Any action taken by the person to dispute the dismissal

[26] The Applicant’s resignation letter clearly put the Respondent on notice that he intended to claim that hisa resignation was a constructive dismissal. This weighs in favour of granting an extension of time.

Prejudice to the employer (including prejudice caused by the delay)

[27] I am not persuaded that granting an extension of time would result in a prejudice to the Respondent. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

The merits of the application

[28] The Applicant claims his resignation was due to bullying behaviour by an employee of the Respondent. This is disputed by the Respondent.

[29] On the material before me, I am not able to make a final determination of the merits in this matter as there are factual disputes between the parties. I therefore consider the merits to be a neutral consideration.

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

[30] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 8 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’9

[31] There were no submissions or evidence that there were any persons in a similar position and I find it to be a neutral consideration.

Conclusion

[32] I have considered all of the matters to which my attention is directed by the Act.

[33] I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[34] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

BJenkins for the Applicant.

K Ausden for the Respondent.

Hearing details:

2017.

Sydney (by telephone):

March 10.

 1   [2011] FWAFB 975.

 2   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403.

 3   [2010] FWAFB 7251

 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   [2016] FWCFB 349 at [31].

 6 (1998) 105 IR 1.

 7   [2014] FWCB 5779.

 8   [2015] FWC 8885.

 9 Ibid at [29].

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