Lewis Thompson v Nexxis Pty Ltd T/A Nexxis
[2017] FWC 5829
•9 NOVEMBER 2017
| [2017] FWC 5829 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Lewis Thompson
v
Nexxis Pty Ltd T/A Nexxis
(C2017/4480)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 9 NOVEMBER 2017 |
Application to deal with contraventions involving dismissal.
[1] Mr Lewis Thompson alleged that the termination of his employment by Nexxis Pty Ltd was in breach of the general protections provisions of the Fair Work Act 2009. Nexxis denies the allegation.
[2] At the hearing, I granted permission for Mr Thompson to be legally represented as I accepted that he would not be able to represent himself effectively. Permission was not opposed by Nexxis.
[3] At the hearing, Mr Thompson did not call any evidence. Mr Troy Smith, the Operations Director, gave sworn evidence for Nexxis and was not cross examined. To the extent that there was any conflict between the evidence given by Mr Smith and facts alleged in Mr Thompson’s submissions I will give weight to the sworn evidence over the unsworn.
[4] There is a dispute about the date of the dismissal. In his application, Mr Thompson said he was dismissed on 21 July 2017. In written material filed by Mr Thompson it was said that this was an error and the dismissal took effect on 24 July 2017.
[5] There is no dispute that Mr Thompson was told on 21 July 2017 that his employment was terminated.1 Mr Smith gave evidence of his telephone conversation with Mr Thompson. I do not accept the submission that Mr Thompson did not understand the telephone conversation.2 Mr Smith gave unchallenged evidence that he asked Mr Thompson if he was able to talk. Further, Ms Lisa Nicholas, Mr Thompson’s partner, called him within an hour of the telephone call and it was clear from that conversation that Mr Thompson had told her that he had been sacked.3 Further Ms Nicholas sent a text message to Mr Smith the same day asking for a letter of termination so that Mr Thompson could receive Centrelink benefits.
[6] Mr Thompson received written confirmation of that termination on 24 July 2017.
[7] Mr Thompson relies on s.117 of the Act to support his contention that the dismissal did not take effect until he received written notice of termination. That submission cannot be accepted. As the Full Bench in Metropolitan Fire and Emergency Services Board v Garth Duggan4 said:
“[32] In summary, it is clear in our view that if an employer terminates the employment of an employee without giving notice, or payment in lieu thereof, in accordance with an obligation owed by the employer under a contract, award, enterprise agreement or s.117 of the Act, the result is that the employer has acted unlawfully and/or wrongfully and the employee will have one or more causes of action available to him or her under the contract, award, enterprise agreement and/or the Act to remedy the deficiency in notice. However, an unlawful or wrongful dismissal does not invalidate or render void the termination of the employment relationship. Whether the employment relationship has been terminated is a question of fact.”
[8] I reject the submission that because Mr Thompson did not receive written notice of this dismissal until 24 July 2017 and was not paid in lieu of notice, that the termination did not take effect when it was communicated to him on 21 July 2017.
[9] It was also submitted that the statutory time limit did not commence until 22 July 2017 and ended on 12 August 2017 and as that was a Saturday the next business day was 14 August 2017 and therefore the application was lodged within time.
[10] I am satisfied that the termination took effect on 21 July 2017. The application must be lodged within 21 days after the dismissal took effect. Accepting that 21 July 2017 must be excluded, the 21 day time limit ends on 11 August 2017 and therefore an application lodged on 13 August 2017 is not lodged within the 21 day time limit.
[11] I am therefore satisfied that the application lodged by Mr Thompson cannot proceed unless an extension of time is granted.
[12] The Fair Work Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
[13] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd5 where the Full Bench said:
“[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." [Endnotes not reproduced]
(a) the reason for the delay;
[14] Mr Thompson says that his application was late because of representative error. At the hearing Ms Nicholas advised that she is a legal practitioner who holds a practicing certificate. She said that she entered into an agreement with Mr Thompson to represent him.
[15] After the hearing concluded, I caused to be sent an email to Ms Nicholas as the Legal Practice Board of Western Australia had Ms Nicholas listed as a having been admitted to legal practice but not as a certified practitioner. In response to my inquiry, Ms Nicholas filed a statutory declaration in which she advised that due to her disability she had misunderstood the question. She thought I was asking if she had a practitioner certificate which Ms Nicholas took as being a reference to the certificate she received when she signed the roll of practitioners.
[16] I do not doubt that Ms Nicholas was Mr Thompson’s representative. I am also satisfied that Ms Nicholas was required to seek permission to appear as she is a lawyer as defined in the Act.
[17] It was submitted that Mr Thompson instructed Ms Nicholas to provide him with information about what should be included in the application as well as the procedural time deadlines. It was submitted that Ms Nicholas incorrectly advised Mr Thompson that the dismissal date was 21 July 2017 when she should have advised him that the dismissal date was 24 July 2017.
[18] Ms Nicholas prepared and signed the application form as Mr Thompson’s representative. It was dated 11 August 2017. When asked why it was not filed until 13 August 2017, Ms Thompson said that she miscalculated the days.
[19] The general approach of the Commission where representative error is relied upon to explain the late lodgement of an application was described by a Full Bench in Robinson v Interstate Transport Pty Ltd 6as follows:
“[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.
[25] The approach in Clark’s Case was summarised in Davidson’s Case as follows:
“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(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 carry out 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.”
(references omitted)
[20] The Full Bench in Officeworks Ltd v David Parker7further stated:
“[18] In circumstances where “representative error” is relied upon in Commission proceedings as an excuse or explanation for the failure to meet time limits, it is appropriate to have regard to the professional qualifications and expertise of the representative concerned. This will enable an assessment to be made as to the extent to which it was reasonable for a party to rely upon the skills and expertise of the representative in acting on their behalf. Clearly where the representative is a lawyer, an experienced industrial advocate, or an officer or employee of an organisation of employers or employees, it might more readily be concluded that representative error provides an acceptable explanation for the delay and such error should not be blamed upon the party concerned. However where the representative chosen has no experience or expertise in the area of legal and employment matters, there might be less justification for reliance on that person and the responsibility for delays or other errors might be attributed to the party concerned.”
[21] I do not accept that Ms Nicholas provided incorrect advice when she said the dismissal date was 21 July 2017. That advice was correct. It was not clear when Ms Nicholas advised Mr Thompson that the dismissal date was 24 July 2017 as no evidence was given by Mr Thompson at the hearing.
[22] However given Ms Nicholas’ statement from the bar table, I am satisfied that the issue of when the termination took effect was not a reason for the delay. The application form was signed on 11 August 2017 and it noted the date that the dismissal took effect was 21 July 2017. Ms Nicholas’ explanation for the failure to lodge on that date was due to her miscalculation of the 21 days. As Ms Nicholas explained at the hearing this miscalculation arose from the layout of her calendar. This was not a legal error.
[23] The question then is was it reasonable for Mr Thompson to rely on his representative to be able to calculate the 21 days. There was no evidence that Ms Nicholas was ignorant of the 21 day time limit. I accept that Mr Thompson was entitled to rely on his representative being able to calculate the 21 days. I am satisfied that Mr Thompson has a reasonable explanation for the delay in lodging his application. This weighs in favour of a finding that there were exceptional circumstances.
(b) any action taken by the person to dispute the dismissal;
[24] On the day of the dismissal Ms Nicholas contacted Mr Smith on Mr Thompson’s behalf and she advised Mr Smith that sacking someone while they were sick was illegal.8 Mr Smith advised Ms Nicholas that Mr Thompson had not been dismissed because he was sick but that his position was made redundant. At the conclusion of the conversation Ms Nicholas advised Mr Smith that they would consider all their options and would probably pursue it.
[25] I am satisfied that Mr Thompson, through his representative, disputed the dismissal and this weighs in favour of a finding of exceptional circumstances.
(c) prejudice to the employer (including prejudice caused by the delay);
[26] It was submitted that this is a small business and that it was unaware of the procedural requirements under the Act. It submitted that as a result of delay, key personnel are being diverted from the business and this has a significant financial and operational impact on the business. It submitted that permitting the matter to proceed would further impact on the business financials and may affect the business’ reputation. As well it was submitted that it would cause stress and anxiety and that will affect the ongoing viability of the business. There was no evidence to support these submissions.
[27] I accept that Nexxis will have to defend this application if an extension of time is granted. I further accept that as a small business this will distract key personnel from the business. However, given the very short delay in lodging the application, I am not satisfied that there is any prejudice caused by the delay.
[28] I am not satisfied that the prejudice to the employer is such that it weighs against a finding of exceptional circumstances.
(e) the merits of the application;
[29] In the matter of Kornicki v Telstra-Network Technology Group9 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."10
[30] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case."11
[31] Mr Thompson complains that this was not a genuine redundancy because the work is still required to be performed and Mr Thompson was not consulted about the decision to make him redundant. However this is not an unfair dismissal claim. The issue that will need to be determined is whether Mr Thompson was dismissed because (my emphasis) he was temporarily absent from work due to illness. It is not disputed that Mr Thompson was absent from work from 16 June 2017 due to illness.
[32] Mr Smith gave unchallenged evidence that Mr Thompson was made redundant due to a business downturn.12 He explained that Nexxis had lost two substantial contracts.13 Mr Smith denied sacking Mr Thompson due to his illness.14
[33] Much of what Mr Thompson complains of is not relevant to this application. Further Ms Nicholas’ assertion that it is illegal to terminate an employee’s employment while they are sick is not accurate. The Act does not prevent an employee from being dismissed whilst they are temporality absent from work due to illness. The prohibition is on dismissal because (my emphasis) an employee is temporality absent from work due to illness.
[34] The reasons for the dismissal were not tested at this hearing, in particular, Mr Thompson’s evidence about the business downturn. In those circumstances, I am unable to make an assessment of the merits of the claim and I consider the merits to be a neutral consideration.
(e) fairness as between the person and other persons in a similar position.
[35] There were no submissions that there were any other persons in a similar position. I consider this to be a neutral consideration.
Conclusion
[36] I am satisfied when having regard to all the criteria that there are exceptional circumstances. I am satisfied that Mr Thompson had a reasonable explanation for the delay and I am satisfied that Nexxis was aware that Mr Thompson would dispute the dismissal. While none of the other criteria weigh in favour of a finding of exceptional circumstances, they do not strongly weigh against such a finding. In circumstances where the delay is short I am prepared to exercise my discretion to extend the time for the lodgement of the application and an order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
L. Nicholas for the Applicant.
N. De Silveira for the Respondent.
Hearing details:
2017.
Melbourne and Perth, by video link:
27 October.
1 Exhibit R1 at [10]-[11].
2 Exhibit A1 at [18].
3 Exhibit R1 at [14]-[30].
4 [2017] FWCFB 4878 at [32].
5 [2011] FWAFB 975.
6 (2011) 211 IR 347 at 351-352.
7 [2014] FWCFB 5779 at [18].
8 Exhibit R1 at [16].
9 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
10 Ibid.
11 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
12 Exhibit R1 at [11].
13 Ibid at [17].
14 Ibid.
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