Madalena De Barros (Nee Rentzepis) v Unispace (Global) Pty Ltd
[2023] FWC 1738
•27 JULY 2023
| [2023] FWC 1738 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Madalena De Barros (Nee Rentzepis)
v
Unispace (Global) Pty Ltd
(C2023/2945)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 27 JULY 2023 |
Application to deal with contraventions involving dismissal
Introduction
On 22 May 2023, Ms Madalena De Barros (Nee Rentzepis) (Applicant) filed a general protections involving dismissal application (Application) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that she was dismissed by Unispace (Global) Pty Ltd (Respondent) in contravention of Part 3-1 of the Act.
Section 366(1) of the Act provides that an application made under s.365 must be made within 21 days after a dismissal took effect, or within such further period as the Fair Work Commission (Commission) may allow (subject to satisfaction as to the existence of “exceptional circumstances”).[1]
It is not in dispute that the Applicant commenced her engagement with the Respondent on 18 May 2021, and that this engagement came to an end on 11 April 2023. Nor is it in dispute that the Applicant was aware of the cessation of her engagement with the Respondent on that same day.
Given that the Applicant filed her Application on 22 May 2023, the Application has been filed 20 days outside of the 21 day time limit under s.366(1)(a) of the Act. The Applicant should have filed her Application on or before 2 May 2023 for it to have been filed within the requisite 21 day time period.
Legal principles
Section 366(2) of the Act reads:
“366 Time for application
…
(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.”
Granting an extension of time requires me to be “satisfied” that there are exceptional circumstances before I can determine whether to exercise my discretion to extend time. The Full Bench of this Commission in Nulty v Blue Star GroupPty Ltd (Nulty), in relation to the term “exceptional circumstances”, has stated:
“[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 [21-day] time limit in s.366(1)(a) is not an exceptional circumstance…”[2]
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”[3]
(emphasis added)
The matters under s.366(2)(a)-(e) need to be considered separately, and in combination. In this regard, I refer to the decision of the Full Bench of this Commission in Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[4]:
“[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.
..
[19] To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:
‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.
…
[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.”[5]
Reason for delay[6]
On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[7], as follows:
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
Reasons for the delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[8] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay (but this will be most unusual).[9]
The Applicant asserts that the delay in making her Application is wholly attributable to representative error.
Following the receipt of a show cause letter from the Respondent on 23 March 2023, the Applicant engaged the services of her extant legal representatives on 27 March 2023.[10] Notwithstanding the letter in response sent by the Applicant’s legal representatives the following day, she was notified of her immediate summary dismissal on 11 April 2023.[11] Following liaisons with the Applicant from 25 April 2023, a Form F2 – Application for Unfair Dismissal was lodged with the Commission by her legal representatives on 1 May 2023.[12]
On 12 May 2023, post the outer time limit for the Application, the Applicant’s legal representatives received the Respondent’s Form F3 – Employer Response, and realised that her unfair dismissal application was jurisdictionally barred.[13]
The Applicant was not immediately informed of her representatives’ error because:
(a)The Employer Response was reviewed after close of business on a Friday; and
(b)[Her legal representatives] considered whether there was a possibility of rectifying their error prior to informing their client of same.[14]
Accordingly, the Applicant was notified of the error on 18 May 2023. That same day, her legal representatives sought and obtained instructions to prepare and lodge the Application which was done some four days later.[15]
The Respondent points out that:
“[20] The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application. However, the circumstances from the time of the
dismissal must be considered in order to determine whether there is a reason for the
delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances. Relevantly here, no explanation is provided as to why the Applicant, according to the Needham Statement, waited 14 days after her dismissal to instruct her solicitors in regard to a claim against the Respondent in circumstances where the legislation prescribes a 21-day timeframe. This left only 5 business days for the Applicant’s solicitors to prepare and file an application. This is especially striking in circumstances where those same solicitors had already been acting for the Applicant in relation to the allegations of serious misconduct since 27 March 2023. Contrary to the Applicant’s Submissions, the evidence leaves open the finding that the Applicant did sit on her hands and took until the 20th day of the 21-day period to lodge the Unfair Dismissal Application.”[16]
Reliance upon representative error as a reason for the late lodgement of an application was dealt with extensively in Clark v Ringwood Private Hospital (Clark).[17] In Davidson v Aboriginal Islander Child Care Agency,[18] a subsequent Full Bench of the Australian Industrial Relations Commission summarised the general propositions in Clark, 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 considered.”
(emphasis added)
The principles espoused in Clark have been considered and applied in various decisions of this Commission.[19] I equally rely upon those principles in this decision.
As demonstrated in Clark, the conduct of the Applicant is a central consideration in determining the existence of representative error.
The Respondent submits that the Commission cannot be satisfied that no act or omission of the Applicant contributed to the delay in making the Application. This submission appears to be predominantly premised upon the notion that the Applicant has filed insufficient evidence.[20]
The Applicant rightly submits that the Respondent has not properly challenged the evidence of the Applicant, having elected to forgo its right to lodge its own evidence, or to cross-examine Ms Needham as to the matters set out in her Statement.[21] Indeed, it was the Respondent that proactively sought that this matter be determined on the papers.[22] It was open to the Respondent to cross-examine Ms Needham at a hearing and/or seek the attendance of other relevant persons by way of a Form F51 – Order to Attend.[23]
In respect of the Application, it is apparent that the Applicant had engaged legal representatives at the early stages of acrimony in her employment relationship with the Respondent.[24] It is inferred that she had an awareness of the salient features of the Act vis-à-vis
general protections and unfair dismissal.[25] The Applicant had retained legal representatives that had foreshadowed applications at the Commission in the event that summary dismissal occurred. They were clearly aware of their client’s factual circumstances. The Applicant provided instructions to prepare and lodge an application with the Commission within the 21-day period (on 25 April 2023), albeit some 14 days after her dismissal took effect.[26] It appears that she did not specify the type of application to be made as her legal representative formed a view in this regard the following day.[27] When informed that a jurisdictionally barred application had been made, the Applicant immediately provided instructions for the Application to be made.[28]
In view of the foregoing, I find that there is evidence to support the Applicant’s assertions that her Application was filed out of time due to representative error (in the Clark sense). As such, I conclude that the Applicant’s reason for delay in this matter is credible, and weighs in favour of a finding as to the existence of exceptional circumstances.
Action taken by the Applicant to dispute her dismissal[29]
There is evidence before me as to the various actions that the Applicant took to dispute her dismissal. She engaged legal representatives on 27 March 2023 to respond to the show cause letter she received on 23 March 2023, lodged an unfair dismissal application within the prescribed statutory timeframe, and provided instructions for the lodgement of the Application the same day that she was informed of the erroneous application made by her legal representatives. The Applicant submits that these actions constitute active disputation weighing in favour of a finding as to the existence of exceptional circumstances.[30]
The Respondent submits that the provision of instructions to file an application 14 days after her dismissal should weigh against the granting of an extension.[31]
In my view, the Applicant took meaningful steps to dispute her dismissal prior to its effect and within the timeframe specified by the Act. To suggest that because an action was taken toward the outer limit of same it should weigh against a finding of exceptional circumstances is nonsensical. I therefore consider it appropriate to treat this criterion as one in favour of a finding as to the existence of exceptional circumstances.
Prejudice[32]
In relation to prejudice to the Respondent, I am not aware of any. Nor did the Respondent submit otherwise. The absence of prejudice to a respondent is not uncommon, but neither is such absence of prejudice a factor weighing in favour of a finding as to exceptional circumstances, or a discretionary grant of an extension of time (after a finding as to the existence of exceptional circumstances has been made). I therefore treat this criterion as a neutral consideration.[33]
Merits[34]
The principles stated Kyvelos v Champion Socks Pty Ltd[35] (Kyvelos) albeit in relation to a predecessor of the Act, still remain good law and are worth noting and setting out here:
“In considering whether to accept an application which has been lodged outside the time … 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 … 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 … 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 …”.[36]
In Kornicki v Telstra-Network Technology Group,[37] the Full Bench of the Australian Industrial Relations 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 Full Bench said, in respect to the merits of an 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.”
The Applicant submits that she had workplace rights:
(a) within the meaning of section 341(1)(c)(ii) of the FW Act, to make complaints and inquiries in relation to her employment, including in relation to the summary termination of her employment, which she did in her response to the show cause letter sent to the Respondent on 28 March 2023; and
(b) within the meaning of section 341(1)(a) of the FW Act, to be paid the amount of her base salary each month, through section 323(1) of the FW Act, including during the period of her being placed on “gardening leave”.[38]
The Applicant also submits that the Respondent had taken adverse action against her in breach of the general protections provisions of the Act by (summarily) dismissing her.[39]
The Respondent rejects these allegations or assertions, disputes the existence of such workplace rights, and otherwise denies any contravention of Part 3-1 of the Act. The Respondent contends that the reason for the summary dismissal was serious misconduct on the part of the Applicant.[40]
The Commission “should not embark on a detailed consideration of [a] substantive case” for the purpose of determining whether to grant an extension of time to an applicant. In this case, the merits of the Application were not fully tested before me. I note that all of the evidence as to the substantive merits of the Application (from both the Applicant and the Respondent) is not before me. In my view, the merits of the Application in this case, and the strength of the Respondent’s defence and counter assertions, are both arguable. To reach a conclusion beyond this would require close scrutiny in a contested hearing.[41] I am thus not in a position to definitively determine the merits of the Application, and treat the merits as a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position[42]
I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[43]
The Respondent submits that as a matter of fairness between the Applicant and other people who file late in this Commission, who are usually held to account for their failure to explain any part of their delay, this criterion should not weigh in favour of a finding as to the existence of exceptional circumstances. This is especially so where the Applicant has failed to adequately explain the entirety of the delay in filing.[44] However, no case law was cited in support of these propositions.
By contrast, the Applicant has drawn my attention to a number of cases where there have been similar characteristics and/or circumstances, and extensions granted.[45]
In view of the foregoing, I treat this criterion as one that weighs in favour of a finding as to the existence of exceptional circumstances.
Conclusion
I have taken into account the criteria set out under s.366(2)(a)-(e) of the Act. In this regard:
(a) three of the requisite criteria, considered individually, point toward the existence of exceptional circumstances; and
(b) considering the requisite criteria on a collective basis, there is a basis for me to find that exceptional circumstances exist (i.e. three criteria weigh in favour of a finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[46]
I consider that the Applicant’s circumstances, assessed as a whole, to be exceptional, in that whilst they are not unique, or unprecedented, or very rare, they are out of the ordinary course.
On the basis of the reasons set out in this decision, and having regard to the evidence and the submissions of the parties, I am satisfied as to the existence of exceptional circumstances in this case.[47] I am not aware of any basis upon which I ought not exercise my discretion to grant the Applicant an extension of time to file her Application. I have therefore determined to grant the Applicant’s request for an extension of time to file her Application to 22 May 2023. An Order to this effect will be published contemporaneously with this decision.
DEPUTY PRESIDENT
[1] See ss.366(1)(b) and (2) of the Act.
[2] [2011] FWAFB 975.
[3] Ibid.
[4] [2018] FWCFB 901.
[5] Ibid, at [17], [19], [38]-[39].
[6] Section 366(2)(a).
[7] [2021] FWC 3903.
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39].
[9] Ibid, at [40].
[10] Statutory Declaration of Jenny Needham dated 26 June 2023 (Needham Statement), at [8].
[11] Ibid, Annexures C and D.
[12] Ibid, at [11]-[15], Annexure E.
[13] Ibid, at [17], Annexure F.
[14] Ibid, at [23].
[15] Ibid, at [24]-[26].
[16] Respondent’s Outline of Submissions dated 3 July 2023, at [20] (citations omitted).
[17] (1997) 74 IR 413.
[18] (1998) 105 IR 1.
[19] See: Officeworks Ltd v Parker[2014] FWCFB 5779, at [14]. See also: Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109; Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963; Lay v Bar's Leaks (Australia) Pty Ltd[2016] FWCFB 2647.
[20] Respondent’s Outline of Submissions dated 3 July 2023, at [13]-[22].
[21] Applicant’s Written Submissions in Reply dated 7 July 2023, at [6].
[22] Email to Chambers from Respondent’s representative at 3:54pm, 3 July 2023.
[23] Note in particular Respondent’s Outline of Submissions dated 3 July 2023, at [13]-[15].
[24] Needham Statement, at [8].
[25] Needham Statement, Annexure C.
[26] Ibid, at [11].
[27] Ibid, at [14].
[28] Ibid, at [24].
[29] Section 366(2)(b)
[30] Applicant’s Written Submissions dated 26 June 2023, at [29]-[30]; Applicant’s Written Submissions in Reply dated 7 July 2023, at [10].
[31] Respondent’s Outline of Submissions dated 3 July 2023, at [23].
[32] Section 366(2)(c).
[33] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[34] Section 366(2)(d).
[35] (1995) 67 IR 298.
[36] Ibid, at 299 to 300.
[37] Kornicki v Telstra-Network Technology Group Print PR3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).
[38] Applicant’s Written Submissions dated 26 June 2023, at [40].
[39] Ibid.
[40] Respondent’s Outline of Submissions dated 3 July 2023, at [26]-[37].
[41] Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].
[42] Section 366(2)(e).
[43] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP, at 151-152, [37].
[44] Respondent’s Outline of Submissions dated 3 July 2023, at [38].
[45] Applicant’s Written Submissions dated 26 June 2023, at [44]-[47].
[46] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[47] Again noting the definition of “exceptional circumstances” set out in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [13].
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