Mark McCosker v Colonial First State Property Management Pty Limited T/A Colonial First State Global Asset Management

[2013] FWC 5694

[2013] FWC 5694

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mark McCosker
v
Colonial First State Property Management Pty Limited T/A Colonial First State Global Asset Management
(U2013/8166)

COMMISSIONER MCKENNA SYDNEY, 13 AUGUST 2013

Application for unfair dismissal remedy - application out of time.

[1] Mark McCosker (“the applicant”) has made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) for an unfair dismissal remedy. The applicant was formerly employed by Colonial First State Property Management Pty Limited trading as Colonial First State Global Asset Management (“the respondent”) as a Centre Manager of a shopping centre located in regional New South Wales. The respondent dismissed the applicant on 7 March 2013 in circumstances of alleged misconduct concerning a number of matters.

[2] The matter was listed for conciliation before a Fair Work Commission conciliator on 3 May 2013, but did not resolve. The file was subsequently allocated to me to determine whether an extension of time should be granted, in circumstances where the application was lodged out of time. I listed the matter for mention by telephone on 3 and 5 June 2013. The parties agreed to have the extension of time question determined on the papers and I made programming directions by consent in this regard. During further telephone proceedings on 10 July 2013, the parties agreed upon amended directions.

Submissions

[3] The submissions for the applicant identified a number of reasons for the delay, including immediate financial hardship as a result of the dismissal, the time and costs associated with relocating the applicant’s family following the dismissal, the exigencies associated with certain matters concerning the health of the applicant’s daughter, and representative error on the part of the applicant’s solicitors. It was further submitted there would be no prejudice to the respondent if an extension of time were to be granted given the relatively short time by which the application was late and the internal resources available to the respondent (which is wholly owned by the Commonwealth Bank of Australia).

[4] In its submissions, the respondent indicated it did not object to an extension of time being granted, but also noted the decision as to any extension rests with the Commission. The respondent submitted that during the 21 days after the dismissal took effect, the applicant was not in immediate financial hardship, given his severance payments, and he required only one day specifically to attend medical appointments during the relevant time period. The respondent also made further submissions in relation to, among other matters, prejudice and the merits of the application.

[5] In response, the applicant’s submissions noted the applicant did not rely on financial hardship in itself as an exceptional circumstance, but, rather, that the combination of financial hardship, the general concerns and exigencies associated with his daughter’s health and representative error, considered collectively, constituted exceptional circumstances.

Consideration

[6] Section 394 of the Act concerning extensions of time in relation to unfair dismissal applications reads as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

...

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

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

(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.”

[7] Exceptional circumstances within the meaning of s.394(3) of the Act involve circumstances that are out of the ordinary, unusual, special or uncommon; but they do not need to be unique, unprecedented or very rare. The exceptional circumstances need not arise from only one particular reason, and can arise as a result of a combination of factors which, when viewed together, reasonably may be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[8] As noted above, the applicant submitted a combination of reasons led to the delay in lodging the application. The reasons given in relation to financial hardship and the relocation of the applicant’s family do not, by themselves, seem to constitute exceptional circumstances, but these matters are also to be considered in the context of the additional factor of the medical issues concerning the applicant’s daughter - being a matter even the respondent, fairly and appropriately, acknowledged it did not seek to “downplay”.

[9] The other reason relied on in the applicant’s submissions was representative error by his solicitor. The applicant was dismissed on 7 March 2013 and contacted solicitors in relation to the dismissal that same day. A meeting between the applicant and his solicitor was arranged for 20 March 2013, being the first practicable meeting date given the applicant’s relocation of his family and issues concerning his daughter’s medical condition. By email dated 26 March 2013, the applicant’s solicitor erroneously advised the applicant the “final date to lodge the application” was 2 April 2013 (whereas the correct date in this regard was 28 March 2013). By email dated 27 March 2013, the applicant instructed his solicitor to lodge his unfair dismissal application, apparently by providing credit card details for the filing fee. The applicant instructed his solicitor within 21 days after the dismissal took effect to lodge the application. On 2 April 2013, the applicant’s solicitor forwarded the application to the Fair Work Ombudsman instead of lodging the application with the Commission. (It appears from the file record the Fair Work Ombudsman then forwarded the application to the Commission’s Sydney offices on 3 April 2013 and, although it is not clear, the application was then taken as having been lodged on 2 April 2013.)

[10] The applicant instructed his solicitor to lodge an application for an unfair dismissal remedy within the relevant time-frame for making an application, albeit the applicant and the applicant’s solicitor were apparently each under a misapprehension about the date by which the application actually should have been lodged to be within time. From the point of time the applicant gave instructions to lodge the application, the lodging of the applicant’s application effectively was in the hands of his representative and the delay may be characterised as being attributable to the solicitor rather than the applicant: Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728.

[11] I am satisfied there were acceptable reasons for the delay considering the representative error and considering also the context of the other personal exigencies affecting the applicant. These matters combined to constitute exceptional circumstances. As to the other matters in s.394(3) of the Act, it was common ground the applicant became aware of the dismissal on the day it had taken effect. The applicant took actions to dispute the dismissal by contacting solicitors on 7 March 2013 (the day of the dismissal), meeting with a solicitor on 20 March 2013, and giving instructions on 27 March 2013 to lodge an application for an unfair dismissal remedy, albeit having been advised the application could be lodged by 2 April 2013.

[12] The applicant’s submissions contended there was no prejudice to the respondent due to the short time the application was late and considering the respondent is a large employer with access to dedicated, in-house counsel. Although the respondent did not object to an extension of time being granted, its submissions noted that although it is a large employer it would be unfair to assume it would be able to, or should be required to, defend an application in circumstances where it had been lodged outside the stipulated time-frame. On the facts of this case, I consider the prejudice to the respondent is minimal and does not, in the scheme of things, outweigh the reasons given for the delay.

[13] The merits of the application are contested, and indeterminate on what was before me at this stage of the proceedings. I consider this as a neutral matter which properly would be determined on a hearing of the substantive application.

[14] Nothing was raised by either party as to fairness between the applicant and others in a similar position.

Conclusion

[15] Considering the reasons for the delay and the other factors I am required to consider, I am satisfied an extension of time should be allowed for the application to be made. An order to this effect will be issued with the decision.

[16] The application will now be remitted to the Unfair Dismissal Case Management Team for programming concerning the substantive application.

COMMISSIONER

Appearances:

J. Thompson, solicitor, for the applicant.

M. Watson, in-house counsel,for the respondent.

Hearing details:

On the papers.

Final written submission 31 July 2013

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