Lakhvinder Singh Brar v Toll Transport Pty Ltd

[2020] FWC 321

[2020] FWC 321

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Lakhvinder Singh Brar
v
Toll Transport Pty Ltd
(U2019/11857)

DEPUTY PRESIDENT SAMS SYDNEY, 23 JANUARY 2020

Application for an unfair dismissal remedy – application filed six days late – ‘exceptional circumstances’ – ‘representative error’ – whether exceptional circumstances such as to warrant an extension of time being granted – principles considered – ‘representative error’ constitutes exceptional circumstances – time for filing application extended – further proceedings.

BACKGROUND

[1] This decision will determine a jurisdictional objection, originally pressed by Toll Transport Pty Ltd (‘Toll’), in respect to an unfair dismissal application lodged by the Transport Workers’ Union of Australia (the ‘Union’ or the ‘TWU’) on behalf of its member, Mr Lakhvinder Singh Brar, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). The objection is to the unfair dismissal application being accepted by the Fair Work Commission (the ‘Commission’) outside the statutory 21-day time limit set by s 394(2) of the Act.

[2] It is common ground that the unfair dismissal application was lodged six days late on 23 October 2019, after the applicant’s dismissal on 26 September 2019. The primary reason for the late lodgement of the application was accepted by the Union to be ‘representative error’, for which the applicant was completely blameless. Following an unsuccessful telephone conciliation with a Commission conciliator on 20 November 2019, the application was remitted to me to determine the jurisdictional objection. In accordance with my usual practice, on 12 December 2019 I issued directions for a hearing on 29 January 2020 and scheduled a further in-person conciliation on 9 January 2020. However, the Union’s Legal Officer, Mr Lucas Moctezuma, advised on 6 January 2020 that, as an Army Reservist, he had been called out to assist in fighting the bushfire crisis which was, as the time, ravaging New South Wales, and would also be overseas from 14-27 January 2020. He requested an adjournment of the conciliation, with the hearing date not being affected. Unsurprisingly, the Commission granted this request.

[3] Upon receipt of the applicant’s evidence and submissions on 27 December 2019, Ms Fabiana James,Toll’s Senior Manager, Employee and Industrial Relations, advised my Chambers on 14 January 2020 as follows:

‘Dear Associate,

…

After reviewing the Applicants (sic) materials, and speaking with his representative, the Respondent has decided not to oppose the granting of an extension of time for the Applicant to lodge his unfair dismissal application.’

[4] While this concession was welcome and, in my view, properly made, the fact that Toll accepted an extension of time was appropriate, does not mean the Commission can waive jurisdiction by consent of the parties. The Commission must establish jurisdiction by reference to, and application of the statutory requirements under s 394(3) of the Act. Hence, this decision will determine whether the applicant has established ‘exceptional circumstances’, such as to justify an extension of time being granted for him to file his unfair dismissal application ‘out of time’.

SUBMISSIONS AND EVIDENCE

[5] The Union filed witness statements from the applicant and Ms Jelena Cindric, the TWU Official dealing with the applicant’s unfair dismissal claim. As the submissions flowing from this uncontradicted evidence were not challenged by Toll, it is sufficient for me to set out the relevant facts and circumstances set out in the Union’s submissions as follows:

‘14. Representative error has been consistently held by the FWC to constitute exceptional circumstances. In the present matter, the reason for delay is explained by the following facts;

a. The Applicant attended the TWU offices on 26 September, the day that he was dismissed, in order to seek advice as to potentially filing an unfair dismissal claim. The Applicant signed a Terms of Engagement (which legally obligated the TWU to provide the Applicant with a degree of legal representation) on that same day and instructed that the TWU file an unfair dismissal application;

b. The Applicant believed that Jelena Cindric, the Lead Official of the Member Services Centre (MSC), was the Official handling his claim because she had previously drafted the Applicant’s Show Cause Response letter prior to his dismissal;

c. There was a misunderstanding and an unfair dismissal application was not prepared or filed;

d. The Applicant attended the TWU offices the following day to inquire into what the next steps were and Ms Cindric told the Applicant to send her his payslips.

e. The Applicant, as instructed by Ms Cindric, endeavoured to collect his payslips from the Respondent. This process took nearly three weeks because:

i. the Applicant contacted his TWU delegate, Harvinder Singh, to arrange receiving his payslips;

ii. Mr Singh discussed the subject of the Applicant’s payslips with the Respondent;

iii. Mr Singh finally informed the Applicant on 9 October that the payslips would be posted to him;

iv. the Applicant received nothing in the post nor had he heard from Toll a week after this;

v. the Applicant contacted the Respondent himself on 13 and 14 October and asked for the Respondent to email him his payslips and the Respondent’s payroll officer, Bianca Millson, said that she would send them to him; and

vi. the Applicant followed up on 15 October with Ms Millson as he had not received his payslips and she emailed him those payslips;

f. As soon as the Applicant received his payslips, he attempted to ring Ms Cindric on her office phone number on 15, 16 and 17 October but could not reach her on either of those days;

g. The Applicant attempted to contact Ms Cindric on her mobile phone on Friday 18 October but could not reach her. Ms Cindric sent an automatic text message to the Applicant asking if she could call him back, but she never did so;

h. The Applicant rang Ms Cindric again on Monday 21 October but could not reach her as she was on annual leave. The Applicant got in contact with Herbert Williams, another MSC employee, on 21 October and forwarded him his payslips;

i. The Applicant tried to get in contact with Ms Cindric again on Tuesday 22 October but she texted him back saying she was on leave, returning 23 October;

j. The Applicant finally got in contact with Ms Cindric again on 23 October (the day that she returned from leave); and

k. Ms Cindric informed the Applicant on 23 October that the claim had not been lodged. This was due to a misunderstanding of the Applicant’s instructions. The TWU then lodged the application straight away on the same day.

15. The TWU, as representatives for the Applicant, take full responsibility for the error in filing the application late. The above events were completely outside the Applicant’s control[.]

16. The reason for the delay in filing the unfair dismissal application was a rare an (sic) exceptional misunderstanding within the TWU as to the Applicant’s instructions.

17. The above reasons for the delay clearly weighs in favour of a finding of exceptional circumstances because:

a. the Applicant was blameless and entitled to rely on the TWU as his representatives, as he:

i. reasonably believed that he instructed the TWU to file an unfair dismissal application, including signing a Terms of Engagement obligating the TWU to provide him with a degree of legal representation;

ii. followed the TWU’s instructions in seeking payslips, which he reasonably [believed] the TWU required upon instruction from Ms Cindric;

iii. once the Applicant received his payslips from his former employer, he contacted the TWU on 15 October (within the 21-day time frame) but was unable to. He subsequently attempted to contact his TWU representative Ms Cindric numerous times unsuccessfully; and

iv. when the Applicant was able to get in contact with Ms Cindric, he was shocked when she told him that nothing had been filed.

b. The Applicant did not sit back and remain disengaged from his case. Rather, he repeatedly attempted to contact the TWU and his union representatives.

c. The error was solely the fault of the TWU and its employees over which the Applicant had no control. This is because:

i. there was an apparent misunderstanding on 26 September when the Applicant instructed the TWU to file an unfair dismissal application. This is highly unusual, given the TWU file over hundred (sic) unfair dismissal applications every year within the statutory time period (over 120 in 2018);

ii. it is highly unusual for one MSC official to take instructions from a member regarding an unfair dismissal application, and then another MSC official handling the claim. It is generally always one MSC official that handles the claim;

iii. it is highly unusual for the MSC to ask a member to sign a Terms of engagement without simultaneously preparing an unfair dismissal application;

iv. Ms CIndric did not answer her phone when the Applicant attempted to contact her, despite receiving text messages indicating missed calls;

v. Ms Cindric did not call the Applicant back; and

vi. Ms Cindric was on annual leave for a period of time, rendering contact with her unavailable.

18. As the Applicant remained active after instructing the TWU by following his TWU official’s instructions, he was entitled to rely on the TWU to prepare his unfair dismissal application and file it on time. The application was filed late because there was a misunderstanding in the TWU and Ms Cindric did not prepare or lodge an application, despite the Applicant signing a Terms of Engagement on 26 September.

19. This is highly unusual given the TWU’s routine practice in filing multiple unfair dismissal applications within time every year. As such, the circumstances are clearly “out of the ordinary course, or unusual, or special, or uncommon”. These factors weigh strongly in favour of finding a satisfactory reason for the delay, which in turn weigh strongly in favour of finding exceptional circumstances.’

CONSIDERATION

Statutory context and relevant authorities

[6] Subsection 2 of s 394 of the Act reads as follows:

‘(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

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

[7] When considering whether to extend time for the filing of an unfair dismissal application under s 394(2)(b), the Commission is required to take into account the following matters under s 394(3) of the Act which relevantly provide:

‘(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.

Meaning of ‘exceptional circumstances’

[8] A considerable body of authority has now developed within the Commission as to the meaning of ‘exceptional circumstances’ in the statutory context of s 394(3) of the Act. A Full Bench of FWA (Fair Work Australia, as the Commission was then styled) in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (‘Nulty’), summarised the meaning of the expression in the following way:

‘[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’.’

See also: Cheval Properties Pty Ltd t/a Penrith Hotel Motel v Smithers [2010] FWAFB 7251.

[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.

[11] In dealing with the other matters required to be taken into account under s 394(3) of the Act, I find as follows.

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

[12] The applicant was aware of his dismissal on the day it took place – 26 September 2019. This is a neutral factor in this case.

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

[13] The applicant sought advice from his Union on the day of his dismissal. He was actively engaged with Toll and the Union subsequently – expecting his unfair dismissal application to be lodged within time. This factor tells in favour of an extension of time being granted.

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

[14] The delay in filing was not excessive (six days) and as Toll does not oppose the extension of time being granted, it may safely be assumed it conceded no prejudice to it. This factor is a neutral consideration.

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

[15] The facts in this matter are disputed as to whether the applicant engaged in serious misconduct, justifying summary dismissal. Without such conflict being determined and resolved following a full hearing of the matter, I am obviously not in a position, at this point, to judge the merits of the applicant’s case. That said, I take the opportunity to set out below the observations of the Full Bench in Kyvelos v Champion Socks Pty Ltd Print T2421 (10 November 2000) Giudice J, Acton SDP and Gay C, as to the sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an extension of time application:

‘[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.’

[16] Given the material lodged by both parties, I am not convinced the applicant’s case is so manifestly untenable, hopeless or doomed to fail, as to have no prospects of success. This factor tells in favour of an extension of time being granted.

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

[17] In Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine [2016] FWCFB 6963, the Full Bench said at [41]:

‘[41] Finally, we turn to consider fairness as between the Appellant and other persons in a similar position. 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.’

[18] Fairness between other employees in a similar situation would weigh in favour of an extension of time in a case where another dismissed employee is entirely blameless for the delay in filing his application, and would have expected their application to be lodged in time. I refer to such other cases at [9] above. This factor weighs in favour of an extension of time being granted.

[19] For all the above reasons, I am satisfied that ‘exceptional circumstances’ have been established in this case, such as to extend the time for filing Mr Singh Brar’s unfair dismissal application until 23 October 2019. I order accordingly.

[20] The matter will now be processed for hearing and a further conciliation, of which the parties will be advised of in due course. The directions for this matter are as follows:

DIRECTIONS

1. The Respondent (Toll Transport Pty Ltd) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in support of their objection to the application in this matter by no later than 4.00pm on 13 February 2020.

2. The Applicant (Mr Lakhvinder Singh Brar) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application by no later than 4.00pm on 5 March 2020.

3. The Respondent (Toll Transport Pty Ltd) is directed to file with the Fair Work Commission, and serve on the Applicant, witness statements and other documentary material in reply by no later than 4.00pm on 11 March 2020.

DEPUTY PRESIDENT

Final written submissions:

For the applicant: 23 December 2019.

No submissions for the respondent.

Printed by authority of the Commonwealth Government Printer

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