Josip Vucetic v Lhi Retirement Services - Glynde

[2016] FWC 1238

[2016] FWC 1238

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Josip Vucetic
v
LHI Retirement Services - Glynde
(U2016/4248)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 3 MARCH 2016

Application for relief from unfair dismissal - extension of time granted.

[1] These reasons for decision follow the advice I provided to the parties in the course of a conference convened on 3 March 2016.

[2] On 3 February 2016 the Fair Work Commission (FWC) received an application completed by Mr Sayer, of counsel on behalf of Mr Vucetic. That application was made pursuant to s.394 of the Fair Work Act 2009 (the FW Act). Mr Vucetic seeks relief with respect to the termination of his employment with LHI Retirement Services – Glynde (LHI). The application advised that the termination of Mr Vucetic’s employment took effect on 12 January 2016. It advised that the application was made within the 21 day time limit.

[3] On 4 February 2016 my Associate advised both parties that the application appeared to have been lodged outside of the 21 day time limit specified in s.394(2). The parties were provided with a substantial quantity of material relative to the application and this time limit. Mr Vucetic was directed to provide to the Commission and to LHI a statement detailing his position relative to the extension of time issue and a copy of any document upon which he relied in this regard, by close of business 22 February 2016. The parties were advised that this extension of time issue would be considered through a telephone conference to be convened on 3 March 2015.

[4] An Employer’s Response (Form F3) confirmed the LHI position that the application was lodged outside of the 21 day time limit, and that an extension of time was opposed. In this response LHI confirmed that Mr Vucetic’s employment was terminated with effect from 12 January 2016.

[5] A submission and a statutory declaration made out by Mr Sayer, in respect to the out of time issue was provided by wklawyers on his behalf on 10 February 2016. In his statement Mr Sayer advised that he had completed Mr Vucetic’s application incorrectly, by specifying 12 January 2016 as the date that the termination of employment took effect, where he should have entered 13 January 2016. Mr Sayer advised that a subsequent email amendment to the application did not properly address his error.

[6] At the telephone conference on 3 March 2016, Mr Vucetic participated but was represented by Mr Sayer, of counsel. LHI was represented by Mr Bakewell, of counsel. In both instances grants of permission were made under s.596(2)(a) and (c). I note that a sound file record of this conference was kept.

[7] My conclusions about this issue are based on all of the information provided to me. In the conference, Mr Vucetic confirmed that he spoke with a union on 13 January 2016 but that, within a few days that union advised that because he was not a member, it could not act for him. The union subsequently referred him to wklawyers. The earliest appointment which Mr Vucetic could make with wklawyers was 27 January 2016. At that appointment Mr Vucetic met with Mr Wright and confirmed that he gave instructions for the lodgement of the application and that Mr Wright advised that he would attend to it. Mr Vucetic also confirmed that he was aware of the 21 day time limit from the termination of his employment.

[8] The wklawyers’ submission is, at best, indicative of representative error in a number of respects. Firstly, Mr Sayer’s completion of that application appears to assert error in that Mr Sayer concluded that correspondence received by Mr Vucetic on 12 January 2016, advising of the termination of his employment with effect from that day, meant that this employment termination took effect on 13 January 2016. Additionally, Mr Sayer advised that Mr Vucetic instructed his firm to lodge an unfair dismissal application on 27 January 2016. Leaving aside Mr Sayer’s asserted errors in the completion of the application form, Mr Sayer asserts that the application was lodged within the 21 day time limit because the day after the dismissal should be counted as day zero.

[9] I do not accept this method of counting the 21 day time limit and consider that it is inconsistent with both established authority and the provisions of the Acts Interpretation Act 1934. On the information before me I have concluded that the termination of Mr Vucetic’s employment took effect on the date specified in that letter given to him on 12 January 2016. His application was lodged one day outside of the 21 day time limit. Mr Vucetic can only pursue his application if that 21 day time limit is extended pursuant to s.394(2)(b). Section 394(3) states:

“394 Application for unfair dismissal remedy

....

(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 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.”

Findings

[10] I have considered these factors in the circumstances of Mr Vucetic’s application.

[11] In Nulty v Blue Star Group Pty Ltd¹ a Full Bench stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

[12] I have applied this approach.

[13] In considering each of these factors I have concluded that Mr Vucetic sought advice from a union in a timely manner and was then referred to wklawyers. I have concluded that he relied on the advice provided to him by Mr Wright as his lawyer to the effect that the application would be lodged, presumably within the time limit. I have accepted Mr Vucetic’s advice that he provided instructions on 27 January 2016 to the effect that the application should be lodged. The delay from that date reflected the obligation on wklawyers to lodge the application on time. Wklawyers did not do this and, to this extent, the explanation for the delay must be that it was a consequence of representative error.

[14] In reaching this conclusion I have adopted the Full Bench position in Robinson v Interstate Transport Pty Ltd² in the following terms:

“[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.””

[15] On the material before me I am satisfied that Mr Vucetic acted well within the 21 day time limit so as to pursue the matter. I do not consider that the delay reflected any error or omission on his part. Had the delay been of a longer duration it must give rise to a question about what action Mr Vucetic took to pursue his application, but in these circumstances, I think Mr Vucetic was entitled to rely on his lawyer’s advice that the application would be lodged. In these circumstances it would be unreasonable to attribute an element of fault for the delay to him as distinct from his lawyer. Consequently, I consider that the representative error which was the reason for the delay favours a finding that Mr Vucetic’s circumstances are exceptional in that Mr Vucetic had an acceptable reason for that delay, and it would be unfair to visit the consequences of an error on the part of wklawyers on him.

[16] Mr Vucetic did not take any other action, apart from authorising this application, to dispute the termination of his employment.

[17] Mr Sayer asserted that I should not take the LHI submissions relative to prejudice to the employer into account in that LHI elected to make submissions in this matter. Given the specific provisions of s.394(3)(d), I reject this proposition in its entirety. I have taken into account the submissions that the one day delay represents prejudice to LHI.

[18] The merits of the application represent a significant consideration in this matter. The information provided by LHI gives rise to substantial doubt about the merits of the application. That information indicates that the capacity for Mr Vucetic to successfully pursue the application will depend heavily on findings of fact relative to the allegations of misconduct which were put to him. The information before me does not enable any conclusion about the merits of the matter on the material before me. Consequently, I have regarded the merits of the application as a neutral factor relative to the extension of time issue. However, in blunt terms, Mr Vucetic should not pursue this application unless he is able to establish that these allegations were without foundation. Mr Vucetic should be on notice that a failure to identify substantive deficiencies relative to the termination of employment decision and/or process means that his application will be refused and will leave him open to a subsequent costs application.

[19] In the conference in this matter Mr Sayer advised that further instructions relative to these disputed issues of fact had not yet been taken by wklawyers. The conclusion I have reached in this matter requires that the application now be referred for conciliation. I would have expected that wklawyers would have satisfied itself before now, and certainly before the conciliation process commences, that Mr Vucetic has a reasonable case to pursue in this matter. A failure to do so could give rise to an order under s.401 on the basis that it should have been reasonably apparent to wklawyers that Mr Vucetic had no reasonable prospect of success in this matter.

[20] I am satisfied that the positions adopted by the Fair Work Commission relative to other comparable situations support both the refusal or an endorsement of the extension of time request, but, in the majority of cases, directly comparable situations would favour the granting of an extension of time.

Conclusion

[21] For the reasons I have set out above, I am satisfied that Mr Vucetic’s circumstances meet the significant test necessary to be described as exceptional such that the extension of time will be granted in this instance. An Order (PR577422) reflecting this conclusion will be issued and the application will be referred for conciliation.

[22] One final observation is appropriate in these circumstances. This goes directly to the extent to which this matter raises questions about the procedures and practices within wklawyers. These issues go to the reasons for the delay and the matters raised in support of the extension of time for Mr Vucetic. I recommend that wklawyers review those practices.

Appearances (by telephone):

C Sayer counsel for the applicant.

S Bakewell counsel for the respondent.

Hearing (Conference) details:

2016.

Adelaide:

March 3.

1 [2011] FWAFB 975

2 [2011] FWAFB 2728

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