Kailob Wilson v & VM Bucan
[2018] FWC 2755
•17 MAY 2018
| [2018] FWC 2755 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Kailob Wilson
v
V & VM Bucan
(C2018/1398)
COMMISSIONER SAUNDERS | NEWCASTLE, 17 MAY 2018 |
Application to deal with contraventions involving dismissal – late application – representative error – exceptional circumstances – extension of time granted.
Introduction
[1] On 15 March 2018, Mr Kailob Wilson lodged an application pursuant to s.365 of the Fair Work Act 2009 (Act) alleging that he was dismissed on 14 February 2018 and his employer, Vladimir Bucan (Respondent), contravened s.352 of the Act (Application).
[2] Section 366 of the Act provides that a person who has been dismissed and who applies to the Fair Work Commission (Commission) for it to deal with a general protections dispute pursuant to s.365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2
[3] This decision concerns whether I should exercise my discretion to allow Mr Wilson a further period for his Application to be made.
The Hearing
[4] On 11 May 2018, a hearing was conducted by telephone in relation to Mr Wilson’s application for an extension of time.
[5] Mr Wilson gave evidence in support of his application for an extension of time, as did his solicitor, Ms Sally Callander. The Respondent did not adduce any evidence in relation to the application for an extension of time. Both parties made submissions.
Legislative Scheme
[6] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:
“(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] The test of “exceptional circumstances” establishes a “high hurdle” for a person applying for an extension. 3
[8] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4In that matter the Full Bench held the following in relation to “exceptional circumstances”:5
“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.”
Consideration
Reasons for delay – s.366(2)(a)
[9] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 6 A dismissal can be communicated orally.7
[10] It is relevant to consider whether the applicant has provided a credible and acceptable reason for any part of the period that the application was delayed. 8 Ignorance of the 21 day timeframe is not an exceptional circumstance.9
[11] 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 an acceptable reason for the delay beyond the 21 day period and ultimately, whether that reason constitutes, or contributes to a finding of, exceptional circumstances. 10 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:11
“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.”
Relevant chronology of events and reasons for delay
[12] In his Application, Mr Wilson stated that he was dismissed on 14 February 2018. The 21 day time period for Mr Wilson to make a general protections application pursuant to s.365 of the Act expired on 7 March 2018. 12 Given that Mr Wilson filed his Application on 15 March 2018, the Application was eight days late.13
[13] In accordance with the principles summarised in paragraphs [9] to [11] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging a general protections application. In this case, that is the period from 7 to 15 March 2018. However, the circumstances from the time of the alleged dismissal (14 February 2018) must be considered in order to determine whether there is an acceptable reason for any part of the delay beyond the 21 day period.
[14] Ms Callander gave evidence that she spoke to Mr Wilson on 14 February 2018 and suggested he make a general protections application on the basis that he was dismissed because of a temporary absence from work due to injury. Ms Callander sought relevant information from Mr Wilson to support such a claim. On 22 February 2018, Mr Wilson provided Ms Callender with the information and documentation needed to prepare the Application. On 28 February 2018, Ms Callander sent a copy of a draft general protections application to Mr Wilson for his review and approval. Later on the same day, Ms Callander was made aware of amendments which Mr Wilson wanted made to the draft application. Ms Callander made those amendments and signed the Application on 28 February 2018.
[15] On 28 February 2018, Ms Callander provided Mr Wilson’s mother, who works in a related business to the firm in which Ms Callander works, with a waiver of application fee form and asked that Mr Wilson complete the form and return it to Ms Callander on the following day, because Ms Callander wanted to file the Application prior to the commencement of her holidays at the close of business on 1 March 2018.
[16] On 1 March 2018, Ms Callender was provided with a copy of the completed waiver of application fee form, signed by Mr Wilson. Ms Callander gave evidence that she then proceeded, on 1 March 2018, to use her firm’s facsimile machine to fax the Application and waiver of application fee form to the Commission. Ms Callander believed that her attempt to fax those documents to the Commission on 1 March 2018 was successful. However, the facsimile machine at Ms Callander’s firm does not provide facsimile transmission confirmation reports.
[17] Ms Callander was on annual leave from the close of business on 1 March 2018 until the commencement of business on 13 March 2018.
[18] On 15 March 2018, Mr Wilson enquired with Ms Callander about the progress of his Application. Mr Wilson’s mother then contacted the Commission to obtain information in relation to the status of the Application, and was informed that the Commission had not received the Application. Ms Callander then sent a copy of the Application by email to the Commission at 4:56pm on 15 March 2018. Attached to that email was a letter from Ms Callender to the Commission dated 1 March 2018, which Ms Callander believed she had sent by facsimile to the Commission on 1 March 2018. Ms Callander gave evidence that on 1 March 2018 she placed a “faxed” stamp and wrote the words “1 March 2018” on that letter after she believed she had transmitted the facsimile to the Commission.
[19] Although Ms Callander did not make file notes in relation to her discussions with Mr Wilson about the preparation of his Application and she did not annex to her witness statement copies of contemporaneous emails and other correspondence to corroborate her version of events, I accept her evidence as truthful and reliable. Ms Callander’s evidence is corroborated by evidence given by Mr Wilson in relation to the events between 14 February 2018 and 15 March 2018, as summarised in paragraphs [14] to [18] above. Ms Callander’s evidence is also supported by the date of the Application (28 February 2018) and her letter to the Commission dated 1 March 2018, which Ms Callander believed she had sent by facsimile to the Commission on 1 March 2018.
[20] The Respondent submits that a Jones v Dunkel inference should be drawn in relation to the failure of Mr Wilson to call evidence from his mother in relation to her communications with the Commission on 15 March 2018. However, there is already before the Commission evidence of the substance of the discussion between Mr Wilson’s mother and the Commission on 15 March 2018. In particular, Ms Callander’s email to the Commission sent 15 March 2018, refers to “the conversation that was had with our secretarial staff today. We advise that all documents were filed by fax on 1 March 2018. We do not have the facility to prove the documents are faxed.” 14 The rule in Jones v Dunkel does not operate to require a party to give merely cumulative evidence.15 Accordingly, I decline to draw an adverse inference from the decision of Mr Wilson not to call any evidence from his mother in support of his application for an extension of time.
[21] A person relying upon representative error must be able to demonstrate that they were blameless and did not by act or omission cause or contribute to the error. 16 In my view, it is apparent from the evidence summarised in paragraphs [14] – [20] above that:
(a) at all times between 14 February 2018 and 15 March 2018, Mr Wilson acted reasonably, diligently and in a timely manner to have his Application filed within time. In particular, Mr Wilson engaged a solicitor shortly after his alleged dismissal, gave instructions in a timely manner, promptly completed and returned his fee waiver application form, and genuinely believed his representative had filed his Application on 1 March 2018;
(b) Ms Callander made a genuine administrative mistake in not faxing, or otherwise lodging, the Application on 1 March 2018 and, as a result, did not file the Application within the 21 day time period. This mistake is the operative reason why the Application was filed eight days late; and
(c) in the circumstances, Mr Wilson is blameless for the eight day delay in filing his Application.
[22] For the reasons set out in paragraphs [14] to [21] above, I am satisfied that Mr Wilson has provided a credible and acceptable explanation for the whole of the delay in filing his Application. This factor weighs in favour of a finding of exceptional circumstances and granting Mr Wilson an extension of time.
Any action taken by the person to dispute the dismissal – s.366(2)(b)
[23] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 17
[24] I accept Mr Wilson’s evidence that he spoke to Mr Bucan on the morning of 14 February 2018 and asked him for a “legitimate reason” why he was not allowed back to work. By doing so, Mr Wilson took some action to dispute his alleged dismissal. This factor (s.366(2)(b)) weighs, to a limited extent, in favour of a finding of exceptional circumstances and the granting of an extension of time.
Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)
[25] Prejudice to the employer will weigh against granting an extension of time. 18 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.19 The employer must produce evidence to demonstrate prejudice.
[26] A long delay gives rise “to a general presumption of prejudice”. 20 The period of the delay in this matter was eight days which is a relatively short period of delay.
[27] The Respondent has not adduced any evidence to establish prejudice.
[28] Noting that the delay was eight days, I am satisfied that there would be no greater prejudice to the Respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the Respondent is a neutral consideration.
Merits of the application – s.366(2)(d)
[29] Mr Wilson contends that the Respondent dismissed him and contravened s.352 of the Act by terminating his employment because he was temporarily absent from work. There is no doubt that Mr Wilson was absent from work in the period leading up to his alleged dismissal. However, the Respondent denies dismissing Mr Wilson.
[30] Whether Mr Wilson was dismissed and whether any such dismissal was because of his temporary absence from work due to injury are contested issues of fact which will only be able to be determined after a full hearing on the merits, including cross examination of relevant witnesses. In the circumstances, I am satisfied that the merits of the Application is a neutral consideration in relation to whether or not I should extend time for the Application to be made.
Fairness as between the person and other persons in a like position – s.366(2)(e)
[31] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 21 considered this criterion and said (at [41]):
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
[32] I am not satisfied that the issue of fairness as between Mr Wilson and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant, I find that this factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
[33] Mr Wilson’s circumstances were out of the ordinary course, unusual, special and uncommon, in that he acted reasonably and diligently to instruct a solicitor to file his Application on time and he believed they would do so. The sole reason for the eight day delay was the error by Mr Wilson’s solicitor. Those matters, together with the other factors under s.366, lead me to conclude that there are exceptional circumstances in this case. The exceptional circumstances threshold having been met, I am also satisfied, for the same reasons, that it is appropriate to exercise my discretion to extend time.
[34] Accordingly, the application for an extension of time is granted. The jurisdictional objection is dismissed. I will issue an order extending time to 15 March 2018 [PR607147].
COMMISSIONER
Appearances:
S. Callender, solicitor for Mr Wilson.
T. Sullivan, solicitor for the Respondent.
Hearing details:
2018.
Newcastle:
11 May.
Printed by authority of the Commonwealth Government Printer
<PR607146>
1 Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)
2 Section 366(2) of the Act
3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
4 [2011] 203 IR 1
5 Ibid at [13]
6 Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]
7 Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v
Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.
8 Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9; Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
9 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]
10 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]
11 [2016] FWCFB 349 at [31]
12 That is, 21 days from 14 February 2018 (not including 14 February 2018) is 7 March 2018.
13 That is, 15 March 2018 is 8 days after 7 March 2018.
14 Ex A2
15 Cubillo v Commonwealth (2000) 103 FCR 1 at [360]
16 Clark v Ringwood Private Hospital (1997) 74 IR 413 at 418-424
17 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
18 Ibid
19 Ibid
20 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556
21 [2016] FWCFB 6963
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