Kino Kemp v Real Pet Food Company T/A VIP Petfoods (Aust.) Pty Ltd
[2017] FWC 3898
•26 JULY 2017
| [2017] FWC 3898 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Kino Kemp
v
Real Pet Food Company T/A VIP Petfoods (Aust.) Pty Ltd
(C2017/3257)
| COMMISSIONER SIMPSON | BRISBANE, 26 JULY 2017 |
Application to deal with contraventions involving dismissal.
This decision concerns an application made in accordance with section 365 of the Fair Work Act 2009 (the Act) by Ms Kino Kemp who alleges her employment was terminated by Real Pet Food Company T/A VIP Petfoods (Aust.) (VIP Petfoods) in contravention of the general protections provisions of the Act. The Respondent denies the allegations, and contends that the Applicant’s employment ended due to resignation.
Ms Kemp states in her application that she commenced employment with VIP Petfoods on 9 December 2015, until her constructive dismissal on 21 May 2017. Ms Kemp’s general protections application was lodged on 16 June 2017, and was therefore made some five days outside the 21 day period prescribed by the Act. The Application cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission).
The Act provides that a person who has been dismissed and applies to the Commission for it to deal with a general protections application pursuant to s.365 of the Act, must make the application within 21 days after the dismissal took effect. However, the Commission may allow a further period for the application to be made if the delay in lodgment was due to exceptional circumstances.
Section 366 of the Act provides:
“Section 366 Time for Application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
Background
On 16 June 2017, the Commission received an application from Anderson Gray Lawyers Pty Ltd, Ms Kemp’s Legal Representatives, dated 8 June 2017. The application was received with a cover email that read as follows:
“Dear Registry,
Attached is an application which we were under the impression was sent to be filed with the Registry on 8 June 2017.
It has been brought to our attention this morning that the application was not filed on that day.
It appears that the registry email failed to load.
This is clearly a representative administrative error.
Could you please file the application and advise accordingly.
Kind regards…”
On 7 July 2017 the parties were invited to make submissions in relation to the extension of time issue. The matter was listed for hearing by telephone on 26 July 2017 to determine whether an extension of time should be granted. At the hearing, permission was granted for Anderson Gray Lawyers to appear for Ms Kemp. Mr Sean Hill, HR & Safety Lead, Manufacturing represented VIP Petfoods.
Applicant’s submissions
On 14 July 2017, Ms Kemp provided submissions along with her Outline of Argument – Extension of Time. Ms Kemp submitted that there were exceptional circumstances that would satisfy the Commission pursuant to s.366(2) and enable the Commission to grant an extension of time for the filling of her application.
Section 366 (2)(a) - reason for the delay
Ms Kemp submits that there is an acceptable explanation for the delay in filing the application, namely there was an error made by her legal representative with respect to failing to insert the [email protected] email address in the original filing email to the Registry of the Fair Work Commission dated 8 June 2017 at 5.44pm.
Ms Kemp submits that her legal representative's error arose as a result of failing to check that the [email protected] email was present in the "To" section of the email.
Ms Kemp submits that she was entitled to rely upon her legal representative’s expertise to ensure compliance with the Act.
Ms Kemp submits that the delay for filing was not as a result of her or her representative’s deliberate lack of intention to file the general protections application within time, nor was it due to any deliberate non-compliance with the provisions of the Act. Ms Kemp submits she quite rightly relied on her legal representatives to file the application within the time prescribed in the Act.
Ms Kemp relies on the principles outlined in the decisions of Nulty v Blue Star Group[1], Cheval Properties Ply Ltd t/as Penrith Motel v Smithers[2]and most recently applied in Shaw v ANZ,' Galati v Veneto Club,[3] and Thurtell v Cessnock Automotive Group[4].
Ms Kemp submits that she ought not be penalised in circumstances where the performance or lack thereof, of her representatives was the sole contributor to the lateness of the application and the aforementioned circumstances ought to demonstrate exceptional circumstances.
Section 366 (2)(b) - any action taken by the person to dispute the dismissal
Ms Kemp submits that VIP Petfoods was aware that the dismissal was disputed prior to the filing of the application, as Ms Kemp had indicated to VIP Petfoods that she felt she had no other option but to resign.
Ms Kemp submits she contacted her legal representatives within two days of her alleged dismissal, and that her legal representatives had contact with her regarding her application between 5 and 8 June 2017.
Ms Kemp submits that on 8 June 2017, at 5.44pm, Ms Kemp’s representative, on her instructions drafted an email to the Registry, attached the application and Fee Waiver to the email, sent the email to all other relevant recipients and mistakenly failed to include the Brisbane Registry of the Fair Work Commission in the email.
Ms Kemp submits that on 15 June 2017 she sent an email to her legal representative enquiring as to whether the fee waiver application for her General Protections application had been approved.
Ms Kemp submits that her representative was not aware of and/or did not respond to her email until 16 June 2017, whereupon checking the electronic file, Ms Kemp’s legal representative discovered their error.
Ms Kemp submits that her actions at all times demonstrated a consistent desire to pursue VIP Petfoods and dispute the dismissal following the termination of her employment.
Section 366 (2)(c) - prejudice to the employer
Ms Kemp submits that at all times, throughout the twenty-one (21) day time period, she took proactive steps to ensure to dispute the dismissal.
Ms Kemp submits that VIP Petfoods would not be prejudiced should an extension of time granted in this case, other than the usual inconvenience ordinarily associated with being required to defend an application.
Ms Kemp submits that VIP Petfoods has provided an F8A employer response and did not raise any jurisdictional objection to the Applicant's application in the FBA employer response.
Ms Kemp submits that the issue of prejudice be, at best, a neutral consideration by the Commission.
Section 366 (2)(d) - the merits of the application
Ms Kemp submits that the Application before the Commission is not without merits.
Ms Kemp submits that the background of her claim are as follows:
“a. The Applicant was subject to bullying and harassment by a co-worker (the coworker) between June 2016 and late November 2016. In response to the Applicant's complaint about the bullying and harassment, the Respondent moved the Applicant to another production line in a separate building. The transfer of workplace meant the Applicant had no contact with the co-worker.
b. On or around 17 May 2017 the Applicant was informed that she was being transferred back to original workplace which would bring her back into contact with the co-worker. The Applicant made complaints to the Respondent's management about the prospect of being put back in the proximity of the coworker and that it was causing her extreme anxiety, so much so that she was accessing her personal leave.
c. The Respondents ignored the Applicant's complaints and directed that she was to return to the original workplace. As her complaints were ignored the Applicant felt she had no other option but to resign.
d. It is submitted that the Applicant has an arguable case in that she had the workplace right to a safe place of work and the Respondent:
a. injured her in the workplace;
b. altered to her position to her prejudice; and
c. and constructively dismissed her, and it would be detrimental to her, should her claim not be allowed to proceed.”[5]
Section 366 (2)(e) - fairness as between the person and other persons in a
like position
Ms Kemp submits that she would be prejudiced were an extension of time not granted.
Ms Kemp submits that to the best of her knowledge, there are no other employees of VIP Petfoods in a similar position as herself. In these circumstances Ms Kemp contends the Commission adhere to the position as adopted by Commissioner Hampton in Lifshack v Dominant (Australia) Ply Ltd T/A Dominant Chemicals[6], which is, to consider the principles adopted in similar matters previously considered by the Commission in circumstances where no other persons (with respect to the Respondent) in a like position exist.
Ms Kemp again relies on the principles outlined in the decisions of Nulty, Cheval Properties, Shaw, Galati and Thurtell where it has been held that exceptional circumstances can be a combination of ordinary factors which, although individually are of no particular significance, but when taken together are seen as exceptional and such circumstances can provide an acceptable explanation for the delay in filing an application.
For the above reasons, Ms Kemp submits that she has satisfied the conditions necessary to evidence exceptional circumstance in accordance with section 366(2) of the Act and the Commission is entitled to exercise its discretion under section 366(1)(b) of the Act and grant the application for an extension of time as made.
Respondent’s Submissions
On 14 July 2017, VIP Petfoods provided an Outline of Argument – Extension of Time form, as well as the following submissions:
· The Company did not dismiss the applicant.
· The Applicant provided the Company with no opportunity to address the matters raised in her application to the Commission.
· The Applicant is being represented by a firm well versed in the Commission’s practices and procedures.
· The lodgement service utilised by the FWC does provide feedback through electronic notice of the lodgement of documents to applicants and their representatives, which I believe the applicant’s representatives would be well aware of.
VIP Petfoods submits that the application for an extension should not be granted on the basis outlined above and in the attached completed form.
In its Outline of Argument – Extension of time form, when asked if it had suffered any disadvantage or unfairness due to the lateness of the application, VIP Petfoods answered “No”.
Legislation
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.”
The principles to be followed in determining the existence of an exceptional circumstance 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[7] In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:
“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
In Clark v Ringwood Private Hospital[8] it was found that a late lodgment of an application due to representative error may be grounds for an extension of time. It was found that there is a distinction between a delay caused by the representative where the employee is blameless and when the employee has contributed to the delay.
The actions of the employee are the central consideration in deciding whether the explanation of representative error is acceptable. Where an application is delayed because the employee has left the matter in the hands of their representative and has not followed up their claim, the extension may be refused.
However, where an employee has given clear instructions to lodge an application and the representative has failed to do so, the extension may be granted.
In Robinson v Interstate Transport Pty Ltd[9], the employee’s initial representative overlooked a reminder to file the application for a general protections claim. The employee had given specific instructions to his representative to file the claim. On appeal it was found that he was entitled to rely on his representative and was blameless in relation to the delay.
I am satisfied that on the evidence, Ms Kemp is not to blame for the delayed lodgement of her application. I accept that Ms Kemp instructed her legal representatives to file the application on time, and rightly expected that they would do so. I also accept that Ms Kemp promptly followed up on the status of her application with her legal representatives.
I am inclined to follow the decisions of Clark and Robinson, and am satisfied when taking into account the factors in s.366 of the Act, exceptional circumstances exist in this case. I therefore exercise my power under s.366 to extend the time for filing Ms Kemp’s application.
COMMISSIONER
Appearances:
Ms L. Tacey of Anderson Gray Lawyers Pty Ltd for the Applicant
Mr S. Hill, HR & Safety Lead, Manufacturing for the Respondent
Hearing details:
2017,
Brisbane:
26 July
[1] [2011] FWAFB 975.
[2] [2010] FWAFB 7251.
[3] [2015] FWCFB 1830.
[4] [2015] FWC 881.
[5] Submissions Filed on Behalf of the Applicant – Extension of Time at [23].
[6] [2012] FWA 5165.
[7] [2011] 203 IR 1.
[8] (1997) 74 IR 413, 418‒420 cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony’s Plumbing Service (2011) 202 IR 59 [35].
[9] (2011) 211 IR 347.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR594824>
0
0
0