Jason Burrows v Clifford Brick & Tile Transport Pty Ltd T/A Clifford Brick & Tile Transport Pty Ltd

[2015] FWC 4843

[2015] FWC 4843

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Burrows
v
Clifford Brick & Tile Transport Pty Ltd T/A Clifford Brick & Tile Transport Pty Ltd
(U2015/8222)

COMMISSIONER GREGORY MELBOURNE, 10 SEPTEMBER 2015

Application for extension of time.

Introduction

[1] Mr Jason Burrows commenced employment with Clifford Brick & Tile Transport Pty Ltd (“Clifford Brick”) in April 2014 and worked as a truck driver until his employment ended on 13 May 2015. The events leading up to and involving the end of his employment with Clifford Brick are a matter of dispute between the parties.

[2] Mr Burrows sought legal advice from a firm of Solicitors, Ryan Carlisle Thomas (“RCT”), on the day of his alleged dismissal, 13 May 2015. However, his unfair dismissal application was not lodged by RCT until 4 June 2015, one day after the 21 day period provided for in s.394(2)(a) of the Fair Work Act 2009 (Cth). An amended application was subsequently lodged on 17 June highlighting the reasons for the delay in lodging and providing brief submissions as to those reasons, being the failure of Mr Burrows’ Solicitor to file the application within the requisite time period.

[3] Mr Burrows now seeks additional time to file his application.

[4] The matter was originally set down for hearing on 17 July 2015. However, the Solicitors acting on behalf of Clifford Brick, Lander and Rodgers, subsequently advised the Commission that its client would not be opposing the application for an extension of time, and did not intend to provide evidence or submissions in regard to the application. Following further discussion involving the Commission and the parties it was accordingly agreed the matter could be determined “on the papers.”

The Issue to Be Decided

[5] Section 394(3) of the Act provides that the Commission may extend the time for filing if it believes there are “exceptional circumstances” to warrant an exercise of this discretion 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.” 1

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

Evidence and Submissions

[7] The submissions filed on behalf of Mr Burrows 2 indicate, in summary, the late lodgement of the application was the result of representative error. Immediately following his alleged dismissal Mr Burrows attended the Ballarat office of RCT seeking legal advice. He was told he would be contacted again to arrange an appointment, however, he then called RCT again on the following day and an appointment was made at this time to see a Solicitor on Wednesday, 20 May. However, on 20 May Mr Burrows was contacted by RCT and told his appointment was rescheduled to 22 May 2015. During the course of this discussion Mr Burrows confirmed that he wished to take issue with his dismissal.

[8] On 22 May Mr Burrows attended the appointment at RCT and met with Ms Cahill, a Solicitor with the firm. He confirmed he wished to challenge his dismissal and was advised the matter would be referred to the Melbourne office, which dealt with employment matters. On 25 May he again phoned the Ballarat office to confirm the status of the matter and was told the matter was now being handled by the Melbourne office.

[9] On 29 May Ms Cahill referred the matter to the Melbourne office of RCT by email. The recipient of the email, Mr Sebastian O’Meara, was overseas on leave at the time and not due to return until 1 June. On 4 June Ms Cahill made enquiries with Mr O’Meara about the earlier email and discovered he had not yet seen it. Immediately following this conversation Mr O’Meara telephoned Mr Burrows to confirm his instructions, and an unfair dismissal application was lodged on his behalf later that day.

[10] Mr O’Meara submits he erroneously calculated 4 June to be the final day to file within the 21 day period set by the Act, and accordingly indicated on the original application that it was submitted within time. 3 However, on Monday, 15 June the Commission contacted Mr O’Meara and indicated the application had been lodged out of time. Mr O’Meara then informed Mr Burrows about this and an amended application dealing with this issue was lodged on 17 June.

[11] The submissions filed on behalf of Mr Burrows continue to address the requirements in s.394(3) of the Act. They indicate, in summary:

• Mr Burrows became aware of his dismissal at the time it took effect. 4



• He took immediate and persistent action to take issue with his dismissal by seeking legal advice on the day it occurred, and by following up with regular contacts seeking status updates. 5



• The delay of one day causes no prejudice to Clifford Brick. 6 Reference in support of this submission is made to the decision in Paul Carfoot v SAC Sydney Archdiocese T/A St Vincent De Paul Society7where it was found a delay of four days resulted in minimal prejudice to the employer.



• The application has merit. Reference is made in this context to the summary nature of the alleged dismissal, and the fact Mr Burrows was not provided with clear reasons for his termination. 8



• Fairness as between Mr Burrows and other persons in a similar position is not a relevant consideration in the circumstances of this matter.

[12] As indicated, Clifford Brick did not provide any evidence or submissions in response to the application, other than to advise it did not oppose the granting of an extension of time. 9

Consideration

[13] In coming to a decision in this matter I have had regard to each of the matters in s.394(3) I am required to take account of. There is no dispute about the reason for the delay, being the failure by Mr Burrows’ Solicitor to lodge the application within time, in circumstances where it had been provided with clear instructions and adequate time to do so.

[14] The respective merits of the application are much less clear given the limited submissions and evidence before the Commission. However, previous decisions of the Tribunal have determined the Commission is not required at this point to form a concluded view about the respective merits of the matter. 10

[15] The submissions provided on behalf of Mr Burrows also seek to rely on two previous Full Bench decisions of the Commission. Firstly, it is submitted the decision in Robinson v Interstate Transport Pty Ltd 11is authority for the proposition that representative error, in circumstances where an Applicant is blameless, can constitute “exceptional circumstances.” Further, it is submitted the decision of the Full Bench in that matter also adopted the earlier approach of Clark v Ringwood Private Hospital,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.

[16] I am satisfied Mr Burrows is “blameless” in all the circumstances of this matter. He contacted his Solicitor on the day he ceased employment, and in a subsequent meeting on 22 May provided instructions to lodge an unfair dismissal application on his behalf. He then made further enquiries about the status of the matter on 24 May. At this point there were still 10 days remaining before the expiry of the 21 day time period.

[17] Having provided these instructions when he did I am satisfied Mr Burrows was not required or expected to do anything more to check or confirm whether the application was subsequently filed on his behalf within the 21 day period. The failure to lodge was solely due to the failure of his representative, and he should not be disadvantaged as a result of that failure. I am also satisfied the situation comes within what can be considered to be “exceptional circumstances.”

[18] I am satisfied, in conclusion, having regard to all the circumstances of this matter, and the considerations in s.394 I am required to take account of, that it is appropriate for the Commission to exercise its discretion under s.394 to grant Mr Burrows additional time in which to make his application. An order will be issued along with this Decision. The matter will now be referred to the unfair dismissal panel and listed for an initial conciliation conference.

COMMISSIONER

Final written submissions:

Submissions and witness statements were filed on behalf of the Applicant on 30 June 2015.

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

 2   Applicant’s Outline of Submissions received on 30 June 2015

 3   Statement of Sebastian O’Meara dated 30 June 2015

 4   Above n.ii at para 19

 5   Ibid at para 21

 6   Ibid at para 24

 7   [2010] FWA 4080 at [15]

 8   Above n.ii at para 28

 9   Email from Katherine Barrie to the Fair Work Commission on 14 July 2015.

 10   Kyvelos v Champion Socks Pty Limited (Print T2421)

 11   [2011] FWAFB 2728

 12 (1997) 74 IR 413

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