Karyn Head v AMS Group Pty Ltd
[2022] FWC 2843
•25 OCTOBER 2022
| [2022] FWC 2843 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Karyn Head
v
AMS Group Pty Ltd
(U2022/8184)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 25 OCTOBER 2022 |
Application for an unfair dismissal remedy – extension of time – extension of time granted
This decision concerns an application by Ms Karyn Head (Applicant) for an unfair dismissal remedy (Application) pursuant to section 394 of the Fair Work Act 2009 (Act). Section 394(2) of the Act requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 394(3).
It is uncontested that Ms Head’s employment with AMS Group Pty Ltd (Respondent) ended on 15 July 2022. The Application was lodged on 9 August 2022. The period of 21 days ended at midnight on 5 August 2022 and the Application was therefore lodged 4 days out of time. Ms Head seeks that the Commission allow a further period of time for the Application to be made. The Respondent opposes the grant of an extension of time.
Following a number of adjournments, the matter was listed for hearing before me on 24 October 2022. Pursuant to s.596 of the Act Mr Fountain, Solicitor, of Taylor Splatt & Partners appeared on behalf of the Applicant and Mr Gread, paid agent, of Workvergent appeared on behalf of the Respondent. Mr Fountain and Ms Head filed witness statements on behalf of the Applicant and gave evidence at the hearing.
Background and factual findings
Ms Head commenced employment with the Respondent on 16 December 2021 in the role of an Office Administrator.[1] The Respondent terminated Ms Head’s employment orally on 15 July 2022 and confirmed the termination in writing on 20 July 2022.
Consideration
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[2] Exceptional circumstances may 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 can be considered exceptional.[3]
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
Consideration
Reason for the delay
The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable[4] or a reasonable explanation.[5] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[6] the Full Bench noted that the absence of an explanation for any part of the delay, will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all the circumstances must be considered.[7] The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.[8]
As to the reason for the delay, the Applicant submits that delay in lodgement was due to representative error and not caused or contributed to by her.[9] The Applicant submits that she provided initial instructions to Mr Fountain on 28 July 2022 to prepare and lodge the Application[10] and provided further instructions on 30 July 2022.[11] Due to a range of personal circumstances she submits that Mr Fountain was unable to attend to the preparation and filing of the Application within the 21 day period.[12] The Applicant submits that she is blameless in the late filing of the Application.[13]
The Respondent submits that there is no representative error in the present circumstances and that if there is representative error, the Applicant is not blameless. It submits that the Applicant has not provided evidence that she provided clear instructions to her representative and that her representative failed to follow them. It submits that there is no evidence that the Applicant followed up with her representative as to the status of the Application.[14] Accordingly, it submits that in those circumstances the delay, ultimately, was occasioned by the conduct of the Applicant.[15]
A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application for an extension of time.[16] In Clark v Ringwood Private Hospital,[17] a Full Bench decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
- 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;
- 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;
- 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;
- error by an applicant’s representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted;[18] and
- it is not necessary for an applicant to demonstrate that they were ‘blameless’ for the delay in filing a dismissal related application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion.[19] However, as the Full Bench explained in Long v Keolis Downer,][20] ”an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by”. In this context, it is not necessary for the representative to have provided an acceptable explanation for its conduct.[21]
Mr Fountain’s evidence is that he resides with his wife, his daughter, his daughter’s partner and his daughter’s 10 month old baby.[22] Mr Fountain’s written evidence is that he received “initial instructions from the Applicant on 28 July 2022 and further instructions on 30 July 2022”.[23] Mr Fountain’s evidence is that on 31 July 2022 his daughter was admitted to Holmesglen Private Hospital, requiring he and his wife to care for his grand daughter during her admission and recovery.[24] He says that on 2 August 2022 his grand daughter also became ill and was taken to Monash Children’s Hospital for assessment.[25] The baby was discharged the following day on 3 August 2022 with a diagnosis of gastroenteritis.[26] His further evidence is that during the week of 1-8 August gastroenteritis spread throughout his household necessitating the care and welfare of his family, in addition to Mr Fountain also contracting gastroenteritis.[27] Mr Fountain says that as a consequence of his and his family’s illness, he was unable to attend to the filing of the Application until his return to work on 9 August 2022. [28] Mr Fountain’s evidence is that the firm does not have any other lawyers who practice employment law.[29]
At hearing, in response to questions from the bench, Mr Fountain’s evidence was that Ms Head telephoned him on 28 July 2022 regarding her termination. On 30 July 2022 Ms Head provided Mr Fountain with documentation regarding her dismissal and Mr Fountain contacted her to “check a couple of things”. His further evidence, in response to further questions from the bench, was that on 30 July 2022 he received instructions to prepare and lodge an unfair dismissal application on behalf of the Applicant.
In her written evidence Ms Head gives no evidence at all as to her engagement of Mr Fountain or the instructions she provided to him, including no evidence that she instructed him on 28 July 2022 or any other date to prepare and lodge the Application. At hearing Ms Head’s evidence was somewhat confused as to when she contacted Mr Fountain and the chronology of events following that. However, ultimately, her evidence was that she contacted Mr Fountain regarding her dismissal on 28 July 2022, provided him with documentation via email on 30 July 2022 and in a further telephone conversation that day engaged Mr Fountain to represent her in an unfair dismissal claim. Her evidence was that at the conclusion of the further telephone call on 30 July 2022 her understanding was that Mr Fountain would file an unfair dismissal application on her behalf. At hearing Ms Head’s further evidence was that she waited about a week and then contacted Mr Fountain’s office, at which time she was told he was ill and would get back to her. She said he did so on 9 August 2022 and confirmed that he would file the Application that day.
I accept the Respondent’s submission that no representative error is disclosed in the present circumstances. There is no evidence that Mr Fountain made an error of any kind, rather he says due to personal and family circumstances he was unable to attend to the filing of the Application in time. In my view, this does not constitute representative error. Rather, I consider it is simply a lack of diligence on Mr Fountain’s behalf. I address Mr Fountain’s conduct later in this decision.
However, irrespective of how Mr Fountain’s conduct may be characterised, the central consideration is the conduct of the Applicant. The evidence is that on 30 July 2022 Ms Head instructed Mr Fountain to lodge an application for unfair dismissal and Mr Fountain failed to carry out those instructions. Ms Head therefore provided instructions to lodge the Application within the 21 day time frame. Further, Ms Head followed up on the filing of the Application within a week. As such, she did not sit on her hands but acted with diligence and timeliness in relation to the lodging of the Application. Accordingly, I consider that the delay in lodgement was a result of Mr Fountain failing to act on his instructions in a timely manner and was through no fault of the Applicant.
I consider this provides a reasonable or acceptable explanation for the delay. This weighs in favour of the grant of an extension of time.
Notwithstanding that, I wish to make some comments regarding Mr Fountain’s conduct in this matter. Firstly, Mr Fountain’s written evidence simply provides that he received “initial instructions from the Applicant on 28 July 2022 and further instructions on 30 July 2022”. He filed no written evidence as to the nature of those instructions. In particular, he filed no evidence that he received instructions to prepare and lodge the Application on 28 July 2022 as is submitted. This evidence was only adduced following questions from the bench. Secondly, Ms Head also filed no written evidence at all as to her engagement of Mr Fountain or the instructions she provided to him, including no evidence that she instructed him on 28 July 2022 in relation to the Application and no evidence that she instructed him at any time to prepare and lodge the Application. Accordingly, no evidence was filed with the Commission that the Applicant provided Mr Fountain with instructions to lodge the Application and that Mr Fountain failed to do so. Again, this evidence was only adduced following questions from the bench. Given the nature of these proceedings, I consider the importance of leading such evidence should have been apparent to Mr Fountain and his failure to do so is entirely unsatisfactory. Thirdly, Mr Fountain filed no probative evidence of either his or any of his family member’s asserted illness and hospital admissions or the extent of those illness or admissions. He filed no probative evidence that he was so incapacitated as to be able to file the Application on time. Again, the failure to fail such evidence was entirely unsatisfactory. Finally, I am unable to see why another member of Mr Fountain’s firm could not have attended to the filing of the Application. The Form F2 filed on behalf of the Applicant is brief and far from complex. It does not contain extensive detail or complex assertions of fact or law. In particular, question 3.2 of the Form F2 contains only three short bullet points as to why the Applicant says her dismissal was unfair. As to Mr Fountain’s assertion that no other lawyer at his firm has experience in employment law and therefore could not file the Application, I note that Mr Fountain’s individual profile on the firm’s website does not provide that he has particular expertise in employment law (although there is reference to him having “headed up industrial relations negotiations brigade”). I also note that the firm’s website holds itself out as providing employment law services and makes reference to “our employment lawyers”.
In light of the above, I do not consider that Mr Fountain has acted with the level of diligence and expertise required of a competent practitioner; in particular one who considers themselves to have expertise in employment law matters. Those failings, however, are not the fault of the Applicant.
Whether the person first became aware of the dismissal after it had taken effect
It is uncontested that Ms Head became aware of the dismissal on 15 July 2022. I consider this weighs against granting an extension of time.
Action taken to dispute the dismissal
There is no evidence that Ms Head took any action to dispute her dismissal beyond the lodging of the Application. This weighs against the grant of an extension of time.
Prejudice to the employer
The Applicant submits that there is no prejudice to the employer due to the “short 3-day delay in filing”.[30]
The Respondent submits that “they have suffered a general prejudice in having to respond to, and deal with, an unfair dismissal application”.[31]
The delay is relatively short. I am unable to identify any particular prejudice that would accrue to the Respondent were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.
Merits of the application
An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
Ms Head says that she was not provided with any reason for the termination of her employment and that the Respondent purported to terminate her employment during her probationary period which had ceased one month earlier. Ms Head says that prior to her termination there had been no concerns raised regarding her performance or conduct.[32] The Respondent says that Ms Head was terminated for poor performance. It says that Ms Head failed to meet the performance standard required of her role during her probationary period. [33]
Given the interlocutory nature of these proceedings, and on the material currently available to the Commission, it is not possible to form a concluded view as to the merits of the Application. The evidence of the Applicant and the Respondent would need to be fully tested under oath. Accordingly, in the present circumstances I consider the merits of the Application to be a neutral consideration.
Fairness as between the person and another person in a like position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind generally turn on their own facts.
The Applicant relied upon the decision in D La Rosa v Motor One Group Pty Ltd PR924583 where the Full Bench said:
“little might be required to satisfy the Commission that the applicant
was blameless in the delay. In the context of a relatively short delay, it may simply be a matter of establishing that the applicant gave instructions to lodge [in this case] a Notice of Election and thereafter left matters in the hands of his or her representative.” (Commission’s emphasis)
The Applicant also relied upon the decision of MN Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728. In that case Mr Robinson’s representative overlooked a reminder on his firm’s case management system to file Mr Robinson’s application. The Full Bench, overturning the decision at first instance, found exceptional circumstances based on representative error, saying:
“We find that there was an acceptable explanation of the reason for the delay in lodgement of the application - representative error resulting from the oversight of Mr Robinson’s original representative of the electronic reminder whilst the filing of the application was within his care and responsibility. In circumstances where Mr Robinson had promptly sought legal advice following his termination, promptly executed a client agreement prepared on his instructions and, upon doing so, immediately instructed his original representative to lodge a general protections application, we find that he was entitled to rely upon his representative to act on his clear instructions to file an application and was blameless for the delay in lodgement of the application.”[34] (Commission’s emphasis)
In light of the further evidence to the Commission regarding the instructions provided to Mr Fountain, I consider that the above authorities to be of assistance and to support the case advanced by the Applicant. I consider this weighs in favour of the grant of an extension of time.
Conclusion
The time limit that applies to the exercise of a person’s right to bring an application under section 394 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the parties, I am not satisfied on the evidence before the Commission that exceptional circumstances exist.
Accordingly, I grant an extension of time under section 394(3) of the Act for the filing of the Application until 9 August 2022. The matter will now be programmed for hearing.
DEPUTY PRESIDENT
Appearances:
G Fountain for the Applicant.
T Gread for the Respondent.
Hearing details:
24 October 2022
Melbourne by Microsoft Teams.
Final written submissions:
Applicant – 19 August 2022
Respondent – 2 September 2022
[1] Witness Statement of Karyn Head at [1], CB pg 22
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid
[4] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
[5] Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]
[6] [2018] FWCFB 901
[7] Ibid at [39]
[8] See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]
[9] Applicant’s outline of submissions at [4]
[10] Applicant Outline of Argument at [6]
[11] Ibid at [7]
[12] Ibid at [8]
[13] Ibid at [10]
[14] Ibid at [4.12]
[15] Ibid at [4.16]
[16] See, for example, Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1; Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728; Qantas Ground Services Pty Ltd t/a QGS v Rogers [2019] FWCFB 2759 (QGS v Rogers); Melios v Qantas Airways Ltd [2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd [2011] FWA 2802; Long v Keolis Downer [2018] FWCFB 4109 as cited in [2020] FWC 3033.
[17] (1997) 74 IR 413 at 418-419.
[18] As summarised in Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1
[19] QGS v Rogers at [17]
[20] [2018] FWCFB 4109 at [60]
[21] QGS v Rogers at [16]
[22] Witness statement of Graeme Fountain at [5]
[23] Ibid at [4]
[24] Ibid at [6]
[25] Ibid at [7]
[26] Ibid at [8]
[27] Ibid at [9]
[28] Ibid at [10]
[29] Ibid at [3]
[30] Ibid at [13]
[31] Respondent Outline at 4.19
[32] Form F2, q.3.1
[33] Form F3, q.3.1
[34] at [36]
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