Luke Ainsworth v The Trustee for Shakespeare Twin Waters Business Trust
[2022] FWC 1809
•14 JULY 2022
| [2022] FWC 1809 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Luke Ainsworth
v
The Trustee for Shakespeare Twin Waters Business Trust
(U2022/5544)
| COMMISSIONER HAMPTON | ADELAIDE, 14 JULY 2022 |
Application for an unfair dismissal remedy – extension of time required for lodgement – whether exceptional circumstances exist justifying an extension of time – representative error – all other factors considered – satisfied that exceptional circumstances exist – extension warranted and granted.
What this decision is about
This decision concerns an application by Luke Ainsworth (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).
Mr Ainsworth’s employment with The Trustee for Shakespeare Twin Waters Business Trust (Respondent) concluded at a meeting on 26 April 2022. The dismissal took effect on that day. The dismissal was also subsequently confirmed in writing on 28 April 2022. The reason provided for the termination of Mr Ainsworth’s employment was alleged misconduct arising from an incident that occurred on 19 April 2022.
The s.394 application in this matter was lodged with the Fair Work Commission (the Commission) by his representatives, Australian Dismissal Services (ADS), on 19 May 2022.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). Adopting 26 April 2022 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 17 May 2022.[1] The application was therefore filed 2 days after the 21-day limit. The Applicant requests the Commission grant a further period for the application to be made under s.394(3). In essence, the reason cited for the delay is that his representative mistakenly believed the date of dismissal to be the date the termination letter was issued. The Respondent opposes the extension of time request principally on the basis that an “administrative error” was not an exceptional circumstance. The Act allows the Commission to extend the time period within which an unfair dismissal application can be made where it is satisfied that there are exceptional circumstances.[2]
The Commission conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. Mr Wareham of ADS appeared for Mr Ainsworth, and Ms Pearson, the Respondent’s Talent and Culture Manager, represented the Respondent. Permission was granted to Mr Ainsworth to be represented under s.596 of the Act.
Mr Ainsworth provided a witness statement[3] and gave sworn evidence. Mr Wareham, who also had responsibility for the application when it was filed, also gave sworn evidence. The Respondent did not provide any submissions or provide evidence, instead relying upon the Form F3, Employer Response previously filed. I draw no negative inference from this given the nature of the present proceedings.
As will become clear, having assessed all the circumstances of this matter and the relevant statutory considerations I have determined that there are exceptional circumstances. I am also satisfied that it is appropriate to grant an extension of time for the lodgement of this application. The considerations leading to, and consequences of, that finding are outlined below.
Observations on the evidence
The evidence about the explanation for the delay in filing was provided by the Applicant and Mr Wareham and this was not within the knowledge of the Respondent. I found the evidence about those events to have been given openly and honestly and was not challenged.
The sequence of events following the dismissal and leading to the lodgement of this application
At the time of the events leading to this application, Mr Ainsworth was employed as an Activities Attendant at the Novotel Sunshine Coast Resort, having been employed since September 2016.
Following the termination of his employment on 26 April 2022, Mr Ainsworth contacted ADS and sought assistance to contest his dismissal.
By 12 May 2022, Mr Ainsworth had formally engaged ADS and instructed them to file the unfair dismissal application. He had also provided all relevant information to enable that to be done. This was 7 days prior to the expiry of the initial 21-day time period.
Mr Ainsworth made some contact with ADS after 12 May 2022 about his application.
Mr Wareham mistakenly understood from his own reading of the termination letter,[4] that the effective date of the dismissal was the date of that letter, being 28 April 2022. This was incorrect. The letter states that the dismissal was effective on 26 April 2022, the date that Mr Ainsworth was in fact advised of his dismissal. There is no suggestion that Mr Ainsworth contributed to this misunderstanding.
Acting on the mistaken understanding, Mr Wareham did not instruct his firm’s Administration Manager to lodge the application until 19 May 2022, which would have been the last day of the 21-day period if he were correct in his approach. The application as filed did contain the correct date for the termination, which was only picked up by the Administration Manager when the form was being completed on the day it was lodged.
Mr Ainsworth was informed by ADS of the mistake and the late lodgement after the application had been filed.
Should an extension of time be granted?
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly stated, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[5] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[6]
The requirement that there be exceptional circumstances before the time to apply can be extended under s.394(3) of the Act is a high hurdle.[7] This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) of the Act requires that, in considering whether there are exceptional circumstances so as to grant an extension of time, the Commission must take into account the following:
(a)the reason for the delay;
(b)whether the person first became aware of the dismissal after it had taken effect;
(c)any action taken by the person to dispute the dismissal;
(d)prejudice to the employer (including prejudice caused by the delay);
(e)the merits of the application; and
(f)fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. That is, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each.[8] I now consider these matters in the context of the application currently before the Commission.
Reason for the delay
The Act does not specify what reason for delay might tell in favour of granting an extension; however, decisions of the Commission have referred to an acceptable or reasonable explanation for the delay. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour; however, all of the circumstances must be considered on their own merits.[9]
It is also the case that a credible explanation for the whole of the delay is not required to make a finding of exceptional circumstances. That is, it is relevant to have regard to whether the Applicant has provided an explanation for the entirety or any part of the delay.[10] The delay in this matter is 2 days and this is the focus of the present consideration. The events leading to that point remain relevant as part of the context for that delay.
Mr Ainsworth fundamentally relies upon the notion of representative error as the reason for the delay. That is, the late lodgement of the application despite the instructions to file the application so as to enable it to be lodged on time. The evidence supports this explanation.
The late lodgement due to representative error may form part of a credible explanation for a delay and be relevant to the consideration of exceptional circumstances.[11] When considering whether exceptional circumstances exist where the reason for delay is an error by an applicant’s representative, it is relevant to consider whether the applicant caused or contributed to the representative’s error, whether by act or omission.[12] Further, where an applicant has given clear and timely instructions to their representative to file their application, the applicant is generally entitled to rely on the representative to carry out those instructions.[13]
In this case, Mr Ainsworth’s conduct did not contribute to the delay. His representative had all of the instructions and materials necessary to file the application within time and in the correct jurisdiction. That is, an application under the Act on or shortly after 12 May 2022.
The reason why the application was not lodged in time was the representative error. To the extent that the application was being filed on what was (mistakenly) considered to be the final day, this was imprudent, but would itself also be capable of being treated as representative error.
Given those findings I consider that Mr Ainsworth has provided a credible and satisfactory explanation for the period of the delay in making the unfair dismissal application.
The delay in this matter is short and my conclusion about the explanation for the delay tells in favour of a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
I have found that Mr Ainsworth was aware of his dismissal on 26 April 2022. This means that he had the full 21-day period to make the application. This consideration does not support a finding of exceptional circumstances.
Action taken to dispute the dismissal
Mr Ainsworth took timely action to dispute his termination by contacting and instructing a representative to act on his behalf and to lodge the unfair dismissal application. He took no other action in that regard; however, he took the necessary and appropriate steps.
Prejudice to the employer (including prejudice caused by the delay)
The Respondent has not raised any issues of prejudice. In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.[14]
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[15] Further, the primary consideration is whether the applicant has an arguable case.[16]
The parties have provided relatively comprehensive outlines[17] of their positions concerning the substance of the application. However, given the nature of the present proceedings, there is no evidence about this before the Commission. There is a clear contest as to the actions of Mr Ainsworth and the circumstances leading to the dismissal.
Based upon the Applicant’s contentions, he would have an arguable case that the dismissal was harsh. Based upon the Respondent’s contentions, it would have an arguable case that the dismissal was not unfair. It is not possible to make a more definitive assessment of the merit of the unfair dismissal application without hearing evidence about the facts of the matter.
Fairness as between the person and other persons in a similar position
Nothing of relevance was advanced on this aspect.
The application of consistent principles and approaches to a request for an extension of time is relevant and appropriate, and I have adopted that approach in this case. I therefore consider that this aspect weighs mutually between the parties as a consideration of exceptional circumstances in this matter.
Conclusion
With the exception of the awareness of the dismissal, the other considerations in s.394(3) favour a finding of exceptional circumstances or are neutral.
Having considered all the circumstances of this matter and the considerations provided by s.394(3) of the Act, I am satisfied that there are exceptional circumstances. I also consider that the interests of justice require that an opportunity be provided to have the application further considered by the Commission. In that light, it is appropriate that I exercise my discretion to grant an extension of time for the filing of this application and I so Order.
The Commission will subsequently make further arrangements to enable the application to be subject to a conciliation conference, and if ultimately required, heard and determined.
COMMISSIONER
Appearances:
N Warham of Australian Dismissal Services, with permission, for the Applicant.
T Pearson on behalf of the Respondent.
Hearing details:
2022
July 13
Video Hearing.
[1] The 21-day time limit does not include the day of the dismissal itself, consistent with Acts Interpretation Act 1901 (Cth) s.36(1).
[2] Section 394(3) of the Act.
[3] Exhibit A1.
[4] Exhibit A2.
[5] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[6] Ibid.
[7] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[8] Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [10] to [19] and [38].
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[10] Ibid.
[11] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420.
[12] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [30].
[13] Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759. See also Donohoe v QuickComms Australia Pty Ltd[2020] FWCFB 5426.
[14] Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 as considered in Jervis v Coffey Engineering Group Pty Ltd AIRCFB PR927201, 3 February 2003 at [16].
[15] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[16] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[17] Form F2 application and Form F3 response.
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