Mark Setterfield v Syefile Pty Ltd
[2010] FWA 3351
•28 APRIL 2010
[2010] FWA 3351 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mark Setterfield
v
Syefile Pty Ltd
(U2010/5617)
COMMISSIONER ROBERTS | SYDNEY, 28 APRIL 2010 |
Termination of employment - extension of time - ‘exceptional circumstances’ - representative error.
[1] This decision concerns an application lodged by Mr Setterfield on 29 January 2010 for relief pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the alleged unfair termination of his employment by Syefile Pty Ltd (Syefile or the Company). Mr Setterfield states that the termination of employment took effect on 14 December 2009. Accordingly, his application was filed some 32 days outside the 14 day time limit prescribed by the Act and therefore requires me to consider whether to grant Mr Setterfield an extension of time for filing.
[2] Directions were issued on 25 March 2010 for the filing of submissions, written statements and any supporting documents. The submission process concluded on or about 12 April 2010. The application for an extension of time was heard by me in Wodonga on 20 April 2010. Mr Setterfield was represented by Mr P Robb of Robb & Associates Solicitors and Syefile by the Company’s Principal, Mr S Martin.
Legislative Framework
[3] Subsections 394(2) and (3) of the Act provide:
“(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).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
Background
[4] Mr Setterfield was employed by Syefile on 3 August 2006 as a real estate agent at its business in Albury/Wodonga. He held that position until 14 December 2009. Syefile maintains that Mr Setterfield resigned his employment on that day and Mr Setterfield maintains that his employment was terminated at the initiative of Syefile.
[5] An application for relief was filed in the New South Wales Industrial Relations Commission (NSW IRC) on 29 December 2009. That application was apparently withdrawn following correspondence on 25 January 2010 to the Applicant’s solicitor from the Real Estate Employers Federation of NSW (REEF) on behalf of Syefile disputing the jurisdiction of the NSW IRC. An application to Fair Work Australia was filed on 29 January 2010. The NSW IRC proceedings were formally discontinued on or about 1 February 2010.
[6] This decision concerns only the extension of time issue.
Explanation of the delay
[7] In his sworn oral evidence, Mr Setterfield maintained that he relied entirely on the advice of his solicitors as to the progressing of an application for relief concerning the alleged termination of his employment. I find no reason to doubt that evidence. The Applicant’s evidence included a witness statement 1 which was entirely concerned with the financial terms of his employment and the circumstances of the alleged termination of that employment.
[8] Mr Robb also filed a statement 2 but was not required for cross-examination. It was Mr Robb’s statement that he wrote to the Respondent on 17 December 2009 foreshadowing an application for wrongful dismissal. Following further correspondence and discussions with solicitors for Syefile, an application was filed in the NSW IRC and a conciliation conference set down for 3 February 2010. On 25 January 2010 Mr G Puse of the REEF wrote to Mr Robb in the following terms:
“Dear Mr. Robb
RE: SETTERFIELD AND SYEFILE PTY LTD T/AS STANLEY & MARTIN
MATTER NO: IRC 2082 OF 2009
The Real Estate Employers’ Federation of NSW represents its member in the above matter. In this regard, please find enclosed our Notice of Appearance.
As you should be aware, the Industrial Relations Commission of NSW has no jurisdiction to entertain your client’s application given the fact the Respondent is a Federal System employer under the Fair Work Act 2009 (the “Federal Act”). As such, any claim related to the termination of your client must be made under the provisions of the Federal Act, subject, of course to proper jurisdiction existing in the circumstances of your client’s employment.
As your client’s claim must fail on jurisdictional grounds, we respectfully request that you immediately initiate action to withdraw the claim before the Industrial Relations Commission of NSW. Failure to acquiesce to this request, will provoke an application on behalf of the Respondent to seek an order for costs against your client.
We await your most urgent reply to this jurisdictional matter.
Yours faithfully
Gerald Puse
Workplace Relations Adviser”
[9] In written submissions 3, Mr Robb set out a chronology of events and said:
“In summary the delay in filing the application was due to representative error. It is clear in looking at the matters raised in the both the statements of the applicant’s solicitor and the statement of the applicant that the issues of the dismissal having occurred and being unfair were raised very shortly after the dismissal occurred. It is submitted that the applicant bears no responsibility for the delay in filing the application. It is submitted it would be appropriate for there to be a finding that the applicant bears no responsibility for the delay as this was due to representational error.”
[10] In written submissions filed by the REEF 4, Mr Puse said:
“Firstly we note that the Employee did not address this issue in their original application and did not attempt to clarify this matter in their statement filed with FWA on 16 March 2010. The Employee’s legal representative has however stated that the primary reason for the claim being lodged out of time was that it had been filed in the incorrect jurisdiction. As determined by the Industrial Relations Commission of NSW in the matter of Kent Gorrell v Uwatec Pty Ltd (an unreported decision dated 5 July 1999 in Matter NSWIRC, Sams DP, 1700 of 1999) ignorance of the law is no excuse when filing an application for relief for an Unfair Dismissal Remedy, particularly where the Employee has engaged a legal representative to act on their behalf.”
When the Applicant first became aware of the dismissal
[11] This factor does not appear relevant to the case under consideration.
Action taken by the Applicant to dispute the dismissal
[12] Mr Setterfield appears to have taken prompt action to obtain legal advice soon after 14 December 2009 and his solicitors began engaging in correspondence and discussions with the Respondent’s solicitors shortly thereafter. An action for unfair dismissal was clearly threatened in such correspondence. I note that the Respondent has made no submission on this point. All in all, I find that Mr Setterfield took action to dispute the alleged termination of his employment.
Prejudice to the Respondent
[13] Mr Robb submits that there is no prejudice to the Respondent caused by the delay in lodging the application for relief as the Respondent had been put on notice that such an application would be made. The REEF submits that:
“Given the length of time the employee has filed the claim from the cessation date of employment, and the possible arbitration date (which has yet to be determined) we assert that this would disadvantage the Employer if FWA were to allow the Application to proceed. … As per the principles set out in Brodie-Hanns v MTV Publishing Ltd, prejudice to the Respondent including prejudice caused by the delay should be taken into consideration against granting an extension of time for the application. Furthermore the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.”
[14] On balance, I find that there would be prejudice to the Company should an extension of time be granted but that that prejudice is not so substantial as to militate against the granting of an extension of time.
Merits of the application
[15] It is still at issue between the parties whether the employment relationship was terminated at the initiative of Syefile or not. As that issue has yet to be determined, the merits of the application have been neutral in my consideration. In any event, an application for an extension of time does not require a detailed assessment of the merits of the substantive application.
Fairness between the Applicant and other persons in a similar position
[16] In the case before me, there does not appear to be anything which makes this consideration relevant and it has therefore been neutral in my decision making.
Conclusion
[17] Section 394 of the Act requires me when considering whether to grant an extension of time to be “satisfied that there are exceptional circumstances …” In this application, Mr Setterfield relies on representative error constituting such exceptional circumstances.
[18] The concept of ‘exceptional circumstances’ was considered by Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd 5. In that decision, his Honour considered the ordinary English meaning of the word ‘exceptional’6. In so doing, he referred to the decision of Commissioner Whelan in Parker v Department of Human Services7where the Commissioner said:
“Branson J in a decision of the Full Court of the Federal Court 8 described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision also noted that the expression had been considered by the courts on numerous occasions:
Although the expression ‘exceptional circumstances’ is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham Cornwall CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. 9”
[19] The Concise Oxford Dictionary 10 relevantly defines ‘exceptional’ as “forming an exception; unusual…” In my view, the word ‘exceptional’ does not carry with it connotations of meaning approximate to ‘extraordinary’ or ‘extreme’.11
[20] In Clark and Ringwood Private Hospital 12the Full Bench held that the question of whether an error by an applicant’s representative constitutes an explanation for delay is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted. In this case, it appears clear that representative error is the major, and possibly only, factor in the late lodgement of the application. Mr Setterfield was diligent in pursuing his case with his solicitors and was not the cause of any delay. He was entitled to rely on the advice of his solicitors.13
[21] All in all, the admitted error by Mr Robb is sufficient in my view, also taking into account the other factors dealt with above, to constitute exceptional circumstances sufficient to render extension of time just and equitable. I therefore grant Mr Setterfield an extension of time and the time for lodgement of his application is extended until the actual date of filing.
[22] My decision to extend time still leaves the jurisdictional issue raised by Syefile that there was no termination of employment at the initiative of the Company.
[23] An order reflecting this Decision is in PR996588.
COMMISSIONER
Appearances:
P Robb for the Applicant.
S Martin for the Respondent.
Hearing details:
2010.
Wodonga:
April 20.
1 Exhibit Robb 3.
2 Exhibit Robb 2.
3 Exhibit Robb 1.
4 Exhibit Colliers 1.
5 [2010] FWA 1394.
6 Ibid, at paragraph 28.
7 [2009] FWA 1638.
8 Hewlett Packard Aust Pty Ltd v GE Capital Finance Pty Ltd (2003) FCAFC 256.
9 Maan v Minister for Immigration and Citizenship (2009) FACFC 180.
10 Oxford University Press, Oxford, 1982.
11 Transcript PNs111-112.
12 Print P5279, 22 September 1997.
13 See also the decisions in Cruz v Australia Post Corporation [2008] AIRCFB 452 and El Arja v Rail Corporation New South Wales [2009] AIRCFB 809.
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