Kerry Lazarus v Queensland Rail Ltd

[2020] FWC 4589

[2020] FWC 4589

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kerry Lazarus
v
Queensland Rail Ltd
(U2020/10481)

COMMISSIONER SPENCER BRISBANE, 6 NOVEMBER 2020

Application for an unfair dismissal remedy - application filed out of time - representative error.

INTRODUCTION

[1] Ms Kerry Lazarus (the Applicant) applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant commenced employment with Queensland Rail Ltd (the Respondent/the employer) on 24 July 2017. The Applicant was notified of her dismissal on 10 July 2020, and the dismissal took effect the same day.

[2] The Respondent raised a jurisdictional objection pursuant to s.394(2) of the Act, on the basis that the application was filed out of time. Directions were set for the filing of material in relation to the jurisdictional objection only. The matter was listed in Brisbane for the jurisdictional Hearing on 30 October 2020.

[3] The Applicant was represented by Mr Neil Henderson, Secretary of the Australian Municipal, Administrative, Clerical and Services Union (the ASU/ the union). Mr Jack Donaghy, a Senior Industrial Officer for the ASU, lodged the unfair dismissal application on behalf of the Applicant on 3 August 2020. The last day for the Applicant to file her application was 31 July 2020. The application was, therefore, lodged 3 days late.

[4] It was submitted by the union, on behalf of the Applicant, that her union representative, Mr Jack Donaghy, miscalculated the 21 day period within which a valid application could be lodged. The union representative considered that the last day to lodge the application was 1 August 2020, which fell on a Saturday, and lodged the application on the next business day being Monday, 3 August 2020. The union argued on behalf of the Applicant that the Fair Work Commission (the Commission) should find that this was a matter of ‘representative error’. Further, that it should be determined that this was a case of “exceptional circumstances” as per s.394(3) of the Act, and therefore exercise the discretion, pursuant to s.394(2)(b), to grant an extension of time.

BACKGROUND

[5] By way of brief background to the s,394 application, the Respondent employed the Applicant as a Principle Program Analyst (Assurance). On 10 December 2019, a “final warning” letter was issued to the Applicant stating that the following allegations relating to her conduct had been substantiated:

1. It is alleged that Kerry Lazarus having had multiple reminders from her leaders to enter periods of leave, notably sick leave in January 2019, failed to enter leave into the system in a timely manner and as directed by management.

2. It is alleged that Kerry Lazarus has on multiple occasions in 2019 failed to show respect and professionalism to other Queensland Rail employees and leaders.

3. It is alleged that Kerry Lazarus failed to provide a reasonable level of notice to her leaders and obtain approval for annual leave, effectively rendering herself absent without authority on:

•  23 and 24 July 2019 (2 days annual leave)

•  30 August 2019 to 6 September 2019 (6 days annual leave)

[6] The Applicant was placed on a performance improvement plan for three months. In the Respondent’s view, the Applicant’s performance during this period remained unsatisfactory. On 2 June 2020, a show cause letter was issued to the Applicant outlining the reasons why the Respondent was considering terminating the Applicant’s employment and inviting a response from the Applicant. The show cause letter outlined specific instances of the Applicant’s conduct that the Respondent found concerning.

[7] The Applicant responded in detail on 12 June 2020. She argued for the Respondent to adopt a course of action other than termination of employment. The mitigating circumstances the Applicant identified in her support included:

•  the likelihood of experiencing financial hardship for herself (a single mother) and her daughter upon losing her source of income;

•  reduced performance in the relevant period due to the extra work she had to do owing to a lack of available management resources and skills; and

•  having experienced significant personal issues involving domestic violence.

[8] The Respondent, in a letter dated 10 July 2020, said it had considered the Applicant’s response but remained unpersuaded. The Applicant’s employment was terminated effective immediately.

[9] It was argued on behalf of the Applicant that given the concessions of the union, in regard to the lodgement and the evidence of the Applicant and Mr Donaghy, that the Applicant was blameless with regard to the late filing and actively pursued the lodgement.

[10] The jurisdictional Hearing was held at the Fair Work Commission in Brisbane, on 30 October 2020. As stated, the Applicant was represented by Mr Neil Henderson, Secretary of the union. The Respondent was represented by Mr Dion Matley, Employee Relations Manager for the Respondent and Mr Andy Martin, Senior Employee Relations Advisor for the Respondent. Affidavits were provided by the Applicant and Mr Donaghy and both were cross examined during the Hearing.

[11] Whilst not all the submissions and evidence are referred to in this decision, all of such have been considered.

RELEVANT LEGISLATION

[12] Section 394 of the Act sets out the legislative timeframe when an application for unfair dismissal remedy must be made, and further what circumstances must be considered where an application is made outside the prescribed timeframe for filing of an application. Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

[13] It was submitted on behalf of the Applicant that the reasons for her delay in lodging her application, met the ‘exceptional circumstances’ pursuant to s.394(3) of the Act. The primary submission, was that the delay, was due to representative error.

[14] On 10 July 2020, the day the Applicant was dismissed, Ms Lazarus gave evidence that she notified her union representative of her dismissal and of her instructions to lodge an unfair dismissal application with the Commission. On 13 July 2020 the Applicant received the ASU correspondence setting out their confirmation to assist her with her unfair dismissal application. The correspondence outlined, amongst other things, the timelines for filing the application and her obligations. On 16 July 2020, the Applicant formally confirmed her instructions for the union representative to lodge an unfair dismissal application pursuant to s.394 of the Act. The union representative then calculated the deadline for lodging the application to be 1 August 2020.

[15] Various exchanges occurred and on 27 July 2020, the Applicant sent an email to Mr Donaghy, stating that the application “must be submitted this week”. She stated that she was working on a three week basis from dismissal. The union representative replied on 29 July 2020, that according to his calculation, as the deadline to lodge the application fell on 1 August 2020, which was a Saturday, the last day to lodge the application would be Monday, 3 August 2020. This correspondence from the union also included a link to the FWC unfair dismissal benchbook, FWC registry and the calculation of 21 days.

[16] The Applicant again followed up on 31 July 2020 regarding lodging the application but appears to have received no reply from the union representative, that day.

[17] Mr Donaghy lodged the application with the Commission on 3 August 2020. His evidence was that, later the same day, the FWC registry notified him, that the application was lodged out of time. Mr Donaghy stated that he spoke to a colleague about this and only then realised he had made a mistake by miscalculating the time to lodge the application.

[18] The Directions set out the following criteria in s.394(3) to be addressed.

Reasons for delay (section 394(3)(a))

[19] The union representative, conceded that the only reason for the delay in lodging the application was representative error by virtue of a miscalculated deadline to lodge the application. The union submitted that the Applicant herself was blameless and actively persisted in following up with the union representative about lodging the application on time. The union submitted that the union representative’s advice, underpinned by the erroneous calculation of the deadline, led to the inevitable delay. The Applicant submitted, and the union agreed that she had in no way contributed to the delay through her conduct.

Whether the Applicant first became aware of the dismissal after it had taken effect (section 394(3)(b)) and any action taken by the Applicant to dispute the dismissal (section 394(3)(c))

[20] The Applicant was notified in writing and became aware of the dismissal on 10 July 2020, which both parties conceded, is when the dismissal took effect. The Applicant submitted that she contacted her union representative on the same day, with instructions to lodge an unfair dismissal application with the Commission. Whilst the Applicant did not take action with the employer, the chronology of contact with the union, sets out the action she took during this period.

Prejudice to the employer (section 394(3)(d))

[21] The Applicant submitted that there will be no prejudice to the Respondent, if an extension of time is granted, because the extension is for just 3 calendar days, of which 2 were weekend days.

Merits of the Application (section 394(3)(e))

[22] The Applicant submitted that her dismissal was harsh, unjust and/or unreasonable because the evidence before the employer’s decision maker, did not support the conclusion, that her employment should be terminated. The Applicant submitted that the outcome of terminating the Applicant’s employment was predetermined, and some of the reasons given for termination were not valid reasons. In the Applicant’s submissions, it was argued that the termination of employment, was disproportionate to the gravity of the conduct alleged, (especially when considering the remorse demonstrated in the Applicant’s response to the show cause letter).

[23] The Applicant further submitted that her response to the show cause letter was not properly considered, particularly the significant mitigating circumstances, that she outlined. Those circumstances included, the Applicant responding to a domestic violence matter throughout the relevant period. The Applicant also submitted that her termination is particularly harsh because she is a single mother with one dependent. The Applicant said that she pays rent and her lease expires in February 2021. She claimed that due to the COVID-19 pandemic she will find it extremely difficult, to find new employment as fewer jobs are being advertised than there are job applicants.

[24] The union in its reply submissions, further submitted that an analogy could be drawn with the recent Federal Circuit Court case of Molini v S J Display Group Pty Ltd 1 (Molini) and submitted that this case noted that each case for granting an extension of time should be examined on its own merits. The Applicant submitted in that case as in this one, that it was plainly a case of representative error, and Justice Burchardt commented in Molini on the conduct of the parties in relation to the application for the extension of time and urged a more cooperative approach to an application for extension in circumstances where the application was one day late, stating:

“…This kind of extraordinary expenditure of time and money over a one-day extension is of no credit to anybody involved in it, and seeing this matter is in my docket. I would urge the parties to try and approach it on a more cooperative basis as we move forward.” 2

[25] The Applicant submitted in reply, that the Respondent had argued the merits of the application should be considered as a neutral consideration, and it was agreed on behalf of the Applicant that this factor should be a neutral consideration for this case.

Fairness as between the Applicant and other persons in a similar position (section 394(3)(f))

[26] The Applicant submitted that s.394(3)(f) is a neutral consideration in this case because the Applicant’s circumstances pertaining to dismissal are particular to her and no other person employed by the Respondent, has been terminated for exactly the same reasons.

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

[27] The Respondent submitted that to be within the 21-day time limit, expressed in s.394(2) of the Act, the application needed to be lodged on Friday 31 July 2020, at the latest, and the form was not lodged until 3 August 2020. The Respondent argued that the Commission should be satisfied there were no exceptional circumstances, on the grounds that the reason for the delay was thoroughly predictable and arguably one that is regularly, or routinely, or normally encountered. It was argued that the circumstances, are not those where the application is a clear case of representational error, where the applicant is blameless; the Applicant’s actions contributed to the matter being filed out of time; and the merits of the application are not able to be established without a hearing in the matter, as the Respondent contests those facts purported by the Applicant in their submissions.

[28] In regard to the criteria in s.394(3) of the Act:

Reasons for delay (section 394(3)(a))

[29] The Respondent submitted that the reason for the delay was a combination of the Applicant’s representative miscalculating the date for lodgement and not checking whether that date was during the period allowed. Further the Respondent argued that the industrial officer leaving the lodgement until the very last perceived day for lodging was misguided. The Respondent submitted, that the union had sufficient time during the three weeks prior to the filing of the application to ensure the application was in fact filed correctly, and instead was prepared to file at the very last minute.

[30] The Respondent argued that in a situation where the filing of an application is left to the “perceived” last day available, it is a reasonable conclusion that an application would potentially be made out of time, and this could not be said to be out of the ordinary course, special, or uncommon.

[31] The Respondent referred to Ho v Professional Services Review Committee No 295 3 and submitted that exceptional circumstances includes a combination of factors, that when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. However, the Respondent argued, that the actions of the union must reasonably be seen as producing a predictable outcome, being that the Applicant’s Form F2 Application for unfair dismissal remedy was lodged out of time.

Whether the Applicant first became aware of the dismissal after it had taken effect (section 394(3)(b))

[32] The Respondent agreed, that the Applicant became aware of the dismissal on 10 July 2020, and as there was no delay in the receipt of this information, this factor should be a neutral consideration.

Any action taken by the Applicant to dispute the dismissal (section 394(3)(c))

[33] The Respondent submitted that the circumstances in this matter do not demonstrate a clear case of representational error where the Applicant is blameless and argued the Applicant’s actions, contributed to the matter being filed out of time.

[34] The Respondent submitted that the chronology of events suggest the Applicant was equally responsible for the delay in filing the application, as the union had reminded the Applicant on numerous occasions, of the time limits and importance of adhering to those timeframes. The Respondent submitted, in regard to these relevant events, as follows:

•  13 July 2020 – the Applicant received a phone call from the ASU noting “the 21 days to lodge for unfair dismissal”;

•  14 July 2020 – Applicant received email notification and the agreement from the ASU stating “Time Limits – At present the timeframe to lodge your claim is 21 days from the date of the termination of your employment. Missing a timeframe to lodge your application even by one day can have very serious consequences for your claim” in correspondence that also contained a reference to the 21 days and a level of urgency in meeting that deadline;

•  16 July 2020 – Applicant signed and returned the agreement via email;

•  27 July 2020 – Applicant emailed the representative and noted that “this must be submitted this week” in reference to her application for unfair dismissal remedy;

•  29 July 2020 – Applicant received another confirmation of 21 days from her representative, and a link to the Fair Work Commission Unfair Dismissals Benchbook. 4

[35] The Respondent submitted that the Applicant did not challenge Mr Donaghy when it was conveyed that the last date for filing was 3 August 2020, and argued a simple count would suggest it was due Friday 31 July, and neither the union or the Applicant bothered to check.

[36] The Respondent submitted that in Clark v Ringwood Private Hospital 5, the actions of the employee, are the central consideration in deciding whether the explanation of representative error is acceptable. The Respondent submitted that 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.

[37] The Respondent cited the decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 6 in relation to the definition of exceptional circumstances.

[38] The Respondent submitted that in this case, the combination of factors, when viewed together, may reasonably be seen as producing a situation which is thoroughly predictable, not special or out of the ordinary. The Respondent said that upon receipt of the information, that Mr Donaghy was to file on Monday 3 August 2020. The Respondent noted (despite being given the extract for the calculation of the 21 days), that the Applicant did not challenge that, and the decision must be held to have been made with joint accountability. The Commission should therefore reject an extension of time for filing of the application.

Prejudice to the employer (section 394(3)(d))

[39] The Respondent accepted the delay in the matter was minimal and submitted that this matter should be considered by the FWC as neutral.

Merits of the Application (section 394(3)(e))

[40] The Respondent submitted that the Applicant had not provided any evidence to support its submissions in respect of the merits of the application, and argued that the merits of the application are not able to be established without a hearing into the matter as the Respondent contests the majority of the facts, purported by the Applicant in their submissions.

[41] The Respondent submitted that the Commission cannot make any findings on contested matters without hearing evidence, citing Kyvelos v Champion Socks Pty Ltd. 7The Respondent rejected the Applicant’s submission that there were no factual matters in issue and made submissions as to a number of contested facts, which the Applicant had raised in their submissions regarding the merits of the application.

Fairness as between the Applicant and other persons in a similar position (section 394(3)(f))

[42] The Respondent accepted that applications can be made in time and some are out of time, and submitted that in the absence of others in a like position, this factor should be a neutral consideration.

CONSIDERATION

[43] As previously set out, s.394(2) of the Act requires that an unfair dismissal application must be made within 21 days, after the dismissal took effect or within such further period as the Commission allows under s.394(3) of the Act. Section 394(3) sets out the criteria to be considered and if the Commission is satisfied, that there are “exceptional circumstances”, may allow a further period for the filing of the Application. The Full Bench decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (Stogiannidis) 8 rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers9 which had concluded that in order for “exceptional circumstances” to be established, an Applicant must provide reasons for the whole of the period of delay in filing. In Stogiannidis the Full Bench stated:

“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.”

[44] The meaning of “exceptional circumstances” in s.366(1) was considered by a Full Bench of the then Fair Work Australia, in Nulty v Blue Star Group Pty Ltd (Nulty) 10 as follows:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.”

[45] All of the relevant circumstances have to be taken into account, for the period after the date of termination, until the lodgement of the Application with the Commission.

[46] The Applicant must provide a credible reason associated with the delay in filing the Application, in accordance with the approach in Stogiannidis. This reason is considered with the other matters in s.394(3). However, the circumstances from the time of dismissal must also be considered and whether those circumstances are considered to be ‘exceptional circumstances’. 11

[47] The primary argument for the delay on behalf of the Applicant was representative error. In Lakhvinder Singh Brar v Toll Transport Pty Ltd, 12 Deputy President Sams set out as follows in regard to “representative error”:

“[9] In my opinion, the Union has properly conceded that it bears the complete responsibility for failing to lodge the applicant’s application for relief from unfair dismissal, within the prescribed time frame. This concession plainly constitutes the concept of ‘representative error’, for which the applicant cannot be held responsible. There is no doubt that ‘representative error’ may constitute ‘exceptional circumstances’ for the purposes of s 394(3) of the Act. In this regard, I refer to what a Full Bench of the Australian Industrial Relations Commission (‘AIRC’) said in Davidson v Aboriginal & Islander Child Care Agency Q0784, 12 May 1998:

‘(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’.

See also: Clark v Ringwood Private Hospital (1997) 74 IR 413; Cruz v Australian Postal Corporation [2008] AIRCFB 452; and Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728. I also note and adopt the comments of Lawler VP in McConnell v A & PM Fornataro t/a Tony’s Plumbing Service[2011] FWAFB 466, where His Honour said at [66]:

‘[66] It needs to be born [(sic)] in mind that, on the material before us, it is more likely than not that Mr McConnell was personally blameless. He commenced his s.394 within time in good faith and pursued it in good faith. His decision to discontinue his s.394 application and bring a s.365 application was likely done by him in good faith on the basis of expert advice. Lay persons should not be regarded as acting in a blameworthy fashion when they act on the advice of an expert that they retain for the purpose of giving expert advice’.

[10] In my view, it would be a miscarriage of justice for the applicant to be denied his opportunity to challenge his alleged unfair dismissal, in circumstances where his Union representative/s failed to lodge his s 394 application within time. To use the words of Lawler VP in supra above, the applicant was ‘personally blameless’. Obviously, the application of the principles of ‘representative error’ must apply, irrespective of whether the defaulting representative is a legal practitioner or a Union official.” 13

[48] In circumstances where the Applicant was relying on the advice of her union representative, as she was entitled to do; her representative made an error in calculating the date for filing the application, and relayed the filing date to her, the Applicant is considered to be ‘personally blameless’ for the delay in filing.

[49] In accordance with s.394(3) the Commission must be satisfied that exceptional circumstances exist, taking into account the following criteria:

s.394(3)(a) - the reason for the delay

[50] In this case, the evidence from the Applicant and her representative shows that there were clear instructions from the Applicant to file the s.394 application. The Applicant sought prompt advice and representation when dismissed. The Applicant followed up, (across the period) with the union representative, in relation to the filing of the application.

[51] The Applicant emailed her union representative, Mr Jack Donaghy on 27 July 2020, stating:

“Hi Jack,

I have pulled together some points for your consideration. I note this must be submitted this week.

Please let me know if there is anything else you require from me.

My role has now been advertised externally.

Regards
Kerry”

[52] The union representative provided a response to the Applicant’s email on 29 July 2020, stating:

“Hi Kerry

I will review. Actually, the very last day to lodge is Monday 3 August 2020, though I would like to lodge it by Friday morning.

You were terminated on Friday 10 July 2020. The 21 day count starts the day after.

The 21 days falls on a Saturday, therefore we can lodge the next business day.

FYI from the unfair dismissal benchbook:

How is 21 days calculated? The 21 days for lodgment does not include the date that the dismissal took effect.387 This means that day one commences the day following the dismissal. Weekends and public holidays If the final day of the 21 day period falls on a weekend or on a public holiday {where the Commission is closed) the timeframe will be extended until the next business day.388 Public holidays or weekends that fall during the 21 days will not extend the period of lodgment.

Kind Regards

Jack Donaghy
Senior Industrial Officer”

[53] Based on the information, that the union representatives intention ‘was to file the application on the Friday, but it was not required to be filed until the Monday’, the Applicant replied to the email above at 4:56pm Friday, 31 July 2020 following up on the lodgement of her application with Mr Donaghy:

“Hi Jack,

Just wondering where things are at?

Thanks
Kerry

Sent from my iPhone”

[54] The exchange of correspondence demonstrates an error on the part of the union representative, in calculating the final date for lodging the Applicant’s application. Mr Donaghy had incorrectly calculated the final date for lodging the application at Monday, 3 August 2020. Despite this, Mr Donaghy had, on this occasion communicated to the Applicant that he would seek to lodge the application by Friday, 31 July 2020, which would have brought the application within the statutory limit. In light of this, the Applicant emailed to confirm whether the application had been filed on that Friday.

[55] The exchange further demonstrated that the Applicant was active in endeavouring to progress the application and pursuing the filing of the application, with her representative. She was not complacent in the process and actively communicated with her representative to ensure the matter was lodged on time, in accordance with the timeframe conveyed to her.

[56] The Respondent argued that the Applicant’s follow up email of 31 July 2020 was not a genuine attempt, at pursuing the lodgement, as she sent the email at 4:56pm on a Friday. The Respondent conceded at the Hearing that they made this assertion, based on the understanding that the deadline for filing the application with the Commission was 5:00pm that day. This position adopted by the Respondent was incorrect. Applications made before the Commission are based on calendar days, and subsequently the application could have been lodged up until 11:59pm on Friday, 31 July 2020. The Respondent’s argument that the Applicant’s follow up email at 4:56pm on the Friday, was tardy, is not persuasive, in these circumstances, as the Applicant was acting on the advice of the union, that Mr Donaghy may lodge it on the Friday, but he had until the Monday to file.

[57] In Robinson v Interstate Transport Pty Ltd 14, the Applicant’s representative was given clear instructions to file an application under s.365 of the Act. The Applicant’s representative failed to do so within the time allowable for this type of application, being 60 days at that time, and filed 3 days outside the timeframe. The Full Bench found that the Applicant was entitled to rely on their representative, acting on clear instructions:

“[36] 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.” 15

[58] The Applicant in this matter, relied on her representative’s advice, and was blameless in the circumstances. As a person without a legal background or specific training, the calculation of dates, in accordance with the legislative provision can be confusing. The Applicant sought clarity, regarding the final day for filing, and received an incorrect answer. This is unfortunate, but the Applicant was entitled to rely on that advice. The identification of the incorrect date by the Applicant’s representative was a clear case of representative error, and to disadvantage the Applicant (to deny her a hearing) would be wrong, when she sought at several stages to confirm the application would be filed within the statutory time and that the union confirmed it would take carriage of filing.

[59] This factor weighs in favour of granting of an extension of time.

s.394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[60] Both parties agree that the Applicant became aware of the dismissal on the day it took effect. I consider this a neutral factor.

s.394(3)(c) - any action taken by the person to dispute the dismissal

[61] The Applicant without delay, after the termination sought advice and representation from the union. The Applicant did not contest the dismissal with the employer beyond making an application under s.394. However, she took active steps to pursue the application with the Commission. I consider this weighs in favour of an extension of time being granted.

s.394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[62] The Applicant argued that the prejudice to the Respondent would be minimal. The Respondent conceded that there will be little prejudice in granting the extension of time, but for defending the proceedings, if the extension is granted.

[63] The application was filed three days out of time. This is not a significant period of delay and there was no arguable prejudice to the Respondent made out, in granting an extension of time. Accordingly, it is considered this factor weighs in favour of the granting of an extension of time.

s.394(3)(e) - the merits of the application

[64] As noted, there is a significant factual contest, between the parties regarding the circumstances around the dismissal. Without a hearing to consider the factual disputes, the Commission cannot determine the merits of the application.

[65] The merits of the matter, is therefore considered as a neutral factor.

s.394(3)(f) - fairness as between the person and other persons in a similar position

[66] There was no reference by either party to persons in a similar position. The assessment of this matter, requires the consideration of other persons dismissed by the same employer or consideration of other persons generally, who have sought an extension of time on similar grounds. No specific submissions were given on employees, in a similar position. On the material provided, this criteria is not relevant, and therefore has been considered as neutral.

CONCLUSION

[67] In unfair dismissal matters, the 21 day statutory timeframe is set to provide the parties with certainty. The Applicant was aware of the approximately three week timeframe, relying on advice of the day for filing from the union and she pursued the union to file the application. In consideration of all of the above factors, and the overall circumstances, it is determined that the reason of the delay, was a case of clear representative error. The case satisfies the test of ‘exceptional circumstances’ pursuant to s.394(3), and accords with the reasoning set out in Stogiannidis in regard to the overall period of the delay. The Applicant, at an early stage, relied on the union’s guidance, provided prompt instructions and was attentive to the process, actively pursuing the filing of the application. The circumstances in the context of the representative error and the Applicant’s actions are irregular and provide for ‘exceptional circumstances’.

[68] As set out, on the balance, the statutory considerations, weigh in favour, of accepting the late application. In the circumstances of this case, where the Applicant gave clear instructions to file the application, the short delay involved, and the existence of an acceptable explanation for the whole period, as well as the period of the delay. The Applicant was entitled to rely on the union representative and was blameless in terms of the delay. Further, a decision to not extend time in these circumstances, would lead to a conclusion that is prejudicial to the Applicant, in bringing her case.

[69] Accordingly, pursuant to s.394(2)(b) I exercise the discretion, to permit the extension of time. I am satisfied in accordance with s.394(3) this was a case of representative error, which represented ‘exceptional circumstances’, therefore the time for filing the application is extended and the application is accepted. The jurisdictional objection is therefore dismissed. Directions will be issued, and the matter will be listed for Hearing.

[70] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR722270>

 1 [2020] FCCA 2390.

 2 Ibid, at [23].

 3 [2007] FCA 388.

 4 Respondent submissions at [22].

 5 (1997) 74 IR 413 to 418.

 6   [2011] FWAFB 975.

 7   Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421

 8   [2018] FWCFB 901

 9 (2010) 197 IR 403

 10   [2011] FWAFB 975

 11   Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [22]

 12   [2020] FWC 321 at [9]-[10]

 13   Ibid.

 14   [2011] FWAFB 2728.

 15   Ibid.