Michelle Martin v Cairns Rudolf Steiner School
[2025] FWC 368
•7 FEBRUARY 2025
| [2025] FWC 368 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—Application to deal with contraventions involving dismissal
Michelle Martin
v
Cairns Rudolf Steiner School
(C2024/7878)
| COMMISSIONER SPENCER | BRISBANE, 7 FEBRUARY 2025 |
Application to deal with contraventions involving dismissal– jurisdictional objection – filed one day out of time – representative error – extension of time granted
Introduction
Ms Michelle Andrea Martin (the Applicant) made a General Protections application pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with contraventions involving dismissal. The Applicant submitted that her employment as a Teacher was terminated by the Principal of Cairns Rudolf Steiner School (the Employer/Respondent) on 8 October 2024. The application was filed on 30 October 2024, one day after the expiration of the statutory twenty one day time limit. Accordingly, the Applicant sought an extension of time pursuant to s.336 (1)(b). This decision relates to this jurisdictional issue only regarding the required extension of time to accept the application. The relevant legislative provisions are set out below.
The Parties’ legal representatives were given permission to appear pursuant to s.596(2)(a). The Applicant was represented by Mr Charles Martin of counsel, instructed by Mr Thomas O’Donnell, solicitor of O’Donnell Legal. The Respondent was represented by Mr Christopher Campbell, solicitor of Aitken Legal.
A Directions Conference was conducted, the parties attempted to resolve the matter, but it was not able to be resolved, and they sought directions to file submissions in relation to the extension of time matter. On the basis of the parties’ consent that there were no contested facts, their request for the jurisdictional matter to be determined on the papers was granted.
Relevant Legislation
Directions were set for the provision of submissions. The Directions included the relevant legislation for the consideration of this matter as set out in s.366.
“366 Time for Application
(1) The application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(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.”
And the threshold test of ‘‘exceptional circumstances’’ in relation to the reasons for the delays, must be met. The definition, as set out below was provided to parties in the Directions:
“Exceptional circumstances are not regularly, routinely or normally encountered.[1] exceptional circumstances may be a single exceptional event or a series of events that together are exceptional.[2] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances.”[3]
Background
The Applicant argued that she had exercised a Workplace Right in late 2023 to make a complaint in relation to her employment by reporting information about a reportable suspicion under Division Two of Chapter 2 of the Child Protection Act 1999 (QLD).
Further on 25 January 2024, the Applicant submitted she exercised the Workplace Right to make a complaint in relation to her employment by giving feedback regarding a contractor who provided services to the Respondent; complaints about contractor. In response it was submitted on behalf of the Applicant that on 1 February 2024 the Respondent took adverse action against the Applicant by excluding her from a scheduled meeting of the College of Teachers which the Applicant usually attended. The Applicant argued that the conduct on behalf of the Respondent was taken because she had exercised the Workplace Right to make a complaint in relation to her employment. On 25 February 2024, it was argued by the Applicant that in further response, the Respondent allegedly contravened s.340 (1) of the Fair Work Act 2009 (Cth), when it took adverse action against her by issuing a warning letter to her, which injured the Applicant’s employment or altered the position to her prejudice by making her position less secure.
On 21 March 2024, the Applicant stated that she exercised the Workplace Right to make a complaint in relation to her employment and sought to be represented by lodging a grievance letter complaint through a case manager with the Teachers Professional Association of Queensland.
On 4 June 2024, it was submitted on behalf of the Applicant that the Respondent had informed her that the allegations made by the Applicant in her grievance letter had not been substantiated and that the investigation report would not be shared with her. Further the Respondent directed the Applicant to attend a meeting on 6 June 2024, to discuss the investigation findings and a reasonable working environment for all staff involved in the grievance. In that same letter the Respondent told the Applicant that during the investigation process the Respondent was made aware of management matters involving the Applicant that were also being reviewed but were put on hold pending the investigation of the matters in the Applicant’s grievance letter. Those matters that were set out in the Respondent’s Letter were then brought forward when the investigation was completed. The Applicant informed the Respondent that she was unable to attend any meetings until 6 June 2024 at the earliest. She sought to return to work from 10 June 2024. On 10 June 2024, the Respondent informed the Applicant that prior to recommencing work, the Respondent required the Applicant to have a clearance from her doctor to attend a meeting on the investigation outcomes and the other matters that had been held in abeyance pending the investigation outcomes. The Applicant attended a meeting with the Respondent on 10 July 2024 regarding the outcomes of the investigation into the Applicant’s grievance letter. On 12 July 2024, the Respondent directed the Applicant to undertake an independent medical review by an external medical party and to take paid leave until the medical review could be completed and provided. The Applicant attended for independent medical review on the 20 and 21 August 2024 with a psychologist appointed by the Respondent.
The Applicant referred to the following sequence of events in her application:
“On 27 August 2024, the independent medical report was provided to the Respondent. The report stated that discussions that could exacerbate the Applicant's stress, such as potential legal consequences, negative feedback or warnings, or the possibility of not returning to work should be avoided at the proposed meeting. The report recommended that the Applicant be allowed to take a break of three days to a week after the meeting to allow her to recuperate and return to work refreshed and ready.
On 12 September 2024, despite the recommendations contained in the IMA report, the Respondent sent an email attaching a letter setting out six allegations against the Applicant.
The letter directed the Applicant to respond in writing to the allegations by close of business on 20 September 2024, and stated that, if any or all of the allegations were substantiated, disciplinary action including termination of the Applicant's employment could be considered.
On 17 September 2024, the Applicant found the email attaching the allegations letter.
On 20 September 2024, the Applicant responded through her solicitor to the allegations letter. The Response requested a copy of the IMA report. The Response also pointed out that it was school holidays, and the Applicant was not required to return to work until 4 October 2024, and that the Applicant was receiving treatment for a medical condition.
The response referred to the right to disconnect under s 333M of the FWA and proposed a revised date for the Applicant to respond to the allegations letter, being 11 October 2024.
The letter of 20 September 2024 constituted the exercise by the Applicant of the workplace right to make a complaint in relation to her employment (20 September 2024 complaint). By referring to s 333M of the FWA and proposing an extension for the Applicant to respond to the allegations letter, the Applicant exercised the workplace right to disconnect under s 333M.
On 22 September 2024, the Respondent replied to the response from the Applicant's solicitor. The response came in the form of a letter from HR Dynamics. The letter asserted that the Applicant was not on school holidays and provided a copy of the IMA report. The letter stated that the Respondent could only extend the time for the Applicant to respond to the allegations to 25 September 2024.
On 25 September 2024, the Applicant's solicitor sent a letter to the Respondent. Among other things, the letter:
a. pointed out that, under clause 21.2 of the Award applying to the Applicant's employment (Educational Services (Teachers) Award 2020), the Applicant was required to be on annual leave during non-term weeks;
b. explained that the Applicant's request for an extension of time to respond to the allegations was reasonable;
c. complained that a failure to provide a further extension of time would be harsh, unjust, and unreasonable;
d. reiterated that the Applicant intended to respond to the allegations, and would provide her response by 11 October 2024.
The letter of 25 September 2024 constituted the exercise by the Applicant of the workplace right to make a complaint in relation to her employment (25 September 2024 complaint).
On 27 September 2024, the Respondent sent a letter to the Applicant in which the Respondent stated that each of the allegations against her which were set out in the allegations letter had been substantiated because she had not provided a response within the timeframe required.
The letter went on to state that the Respondent proposed to terminate the Applicant's employment and told the Applicant to respond to the proposed termination by attending a meeting on 4 October 2024 at 11:30 am.
On 3 October 2024, the Applicant's solicitor wrote to the Respondent, complaining about several matters, including that the Respondent had not responded to the request for an extension. The letter of 3 October 2024 constituted the exercise by the Applicant of the workplace right to make a complaint in relation to her employment (3 October 2024 complaint).
On 8 October 2024, the Respondent dismissed the Applicant, purportedly based on the Applicant's failure to respond to the allegations. A copy of the letter of termination attached.
The Respondent dismissed the Applicant:
a. because the Applicant exercised the workplace right to make a complaint in relation to her employment by making each of the following complaints:
i. complaint about reportable suspicion;
ii. complaint about the contractor;
iii. grievance letter complaint;
iv. 20 September 2024 complaint;
v. 25 September 2024 complaint;
vi. 3 October 2024 complaint;
b. because the Applicant exercised the workplace right to disconnect under s 333M(1)- (2) of the FWA;
c. because the Applicant engaged in industrial activity within the meaning of s 347(b)(vii) by seeking to be represented by an industrial association.”
It is sufficient to state at this point that the Respondent refuted that they had engaged in breaches of the Applicant’s Workplace Rights or any contraventions.
In terms of the events surrounding the date of filing, the Applicant’s solicitor indicated that the Form F8 was sent to the Applicant on 29 October 2024 (that being the last day for filing). The Applicant replied to her solicitor with an amendment, still within the statutory twenty one days (as the Applicant’s solicitor confirmed in his statutory declaration). The Applicant’s solicitor’s evidence was that the late filing of one day, was due to the Applicant’s solicitor’s miscalculation of the date for filing. The Respondent argued that in the context of the ‘exceptional circumstances’ test there had not been an appropriate explanation of the delay, in relation to that late filing that occurred, across that last 24 hours. However, the evidence of the events as provided was unchallenged.
Extension of Time – s.366
In order for the jurisdiction to be established for the Commission to hear the s.365 application, it is necessary for the Applicant to obtain an extension of time. In assessing an extension of time, pursuant to s.366 (2) for the Commission to allow for a further period of time, accommodating the delay with filing, the Commission must be satisfied that ‘exceptional circumstances’ exist, taking into account the criteria in s.366 (2):
“(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.”
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[4] The Full Bench observed that it will come down to is a consideration of whether, given the ‘exceptional circumstances’ found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be taken from previous decisions. In the decision of Nulty, the Full Bench said that in order to be ‘exceptional’, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[5] ‘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 can be considered exceptional.[6]
In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (Stogiannidis),[7] a Full Bench of the Fair Work Commission provided clarification regarding the assessment of ‘exceptional circumstances’:
“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”[8]
Summary of Parties’ Submissions and Consideration
s.366 (2) Criteria
The following statutory criteria are to be considered in the application for the extension of time. The Commission may allow a further period if the Commission is satisfied that there are ‘exceptional circumstances’; taking into account the following criteria:
(2)(a) the reason for the delay
The predominant submission made on behalf of the Applicant for filing the application one day late, was made on the basis of representative error by the Applicant’s solicitor.
It was stated by the Applicant’s solicitor in his statutory declaration, that based on a mistaken belief as to the time for lodgement and based on a miscalculation by him of when the twenty one day period expired, the application was subsequently filed one day out of time.
In terms of the consideration of the circumstances of other cases where employees had filed their application one day outside of the twenty one day time limit and where the delay was due to representative error. The actions of the employee are the primary consideration in determining whether representative error is an acceptable explanation of the reason for the delay. It was set out in the decision of Norma Dean-Villalobos v QGC Limited T/A QGC)[9] that:
“[146] As a general rule, persons who provide clear instructions to legal representatives and execute necessary documents in a reasonable time frame to allow them to be filed within time limits under the Act should not be prejudiced because of failure on the part of those legal representatives to comply. It is not unfair to other persons in the same position as the Applicant in this case, to extend the time limit for filing the application.”[10]
It was emphasised in that case that as a ‘general rule’, where Applicants are considered blameless, have provided clear instructions to representatives and have executed the necessary documents within the required timeframe, to allow them to be filed within the twenty one day limit under the Act, then the Applicant should not be prejudiced by the failure on the part of the legal representative to comply within the timeframe.[11]
It was submitted by the Applicant’s representative that the current circumstances fell within this ‘general rule’ as the Applicant was ‘blameless’, and the application had been finalised and was ready to file within the timeframe by 4 pm on 29 October 2024. It was set out that the Applicant’s representative deposed that the Applicant had given all necessary instructions to allow the preparation of the application, and the application had been finalised ready to be filed. Within time, but for the representative’s delay.
The Respondent in their submissions, acknowledge the representative error but submitted that the instructions or actions of the Applicant need to be assessed as part of a range of factors within the ‘exceptional circumstances’ requirement as per s.366 of the Act. The Respondent submitted that the Applicant’s solicitors statutory declaration omitted any reference to what the Applicant knew about the timeline for lodgement or the merits of the matter. The Respondent considered that this was particularly necessary, given that the Applicant has elected to contest the dismissal by way of a general protections application where uncapped compensation may be available. The Respondent had elected not to question the Applicant’s solicitor or the Applicant on this point, in terms of the lack of information on the one day delay. The Applicant’s solicitors’ evidence does refer to the events across the last 24 hours prior to the filing.
Additionally, in considering the reason for the delay and the ‘exceptional circumstances’ test, the Respondent submitted that other factors relevant to the reason for delay should be taken into account, such as that the Applicant had legal representation since 26 July 2024 and that the Applicant was in receipt of the allegations letter from 13 September 2024. Further the Respondent stated that it is clear that when the Applicant attended with her legal representative at the show cause meeting on 4 October 2024, that they intended to contest any decision taken by the Respondent. The Respondent considered that in this context of the Applicant’s early legal representation, it would have been ‘extraordinary’ that the Applicant would not have received advice or become aware of the timelines for contesting her employment (That is at an early stage when she received the show cause letter, and she was aware that her employment was in jeopardy). Therefore, the Respondent submitted that given the lengthy period of representation, there should not have been a delay in filing. No evidence was adduced by the Respondent on their submission.
In the recent Commission decision of Christian Atoche v Crown Sydney Pty Ltd (Atoche),[12] the Applicant also experienced a one day delay in filing. That Applicant was also ‘blameless’ in the late filing, due to representative error. It was set out in the decision of Atoche[13] that:
“[31] The relevant principles of representative error were established in Clark v Ringwood Private Hospital (Clark). In Davidson v Aboriginal & Islander Child Care Agency (Davidson); a Full Bench of the Australian Industrial Relations Commission summarised the principles of representative error 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.”
[32] It is clear from the principles of representative error that an assessment of the conduct of the Applicant will be a central consideration, particularly whether the Applicant is blameless for the delay occasioned...”[14]
It is noted that even though the decision cited above dealt with an unfair dismissal application, the case authority is persuasive to granting the current extension of time application in this General Protections matter. In similar terms, the further Full Bench decision of John Jordan and Neil Macleod v Multiplex Australasia Pty Ltd (Jordan and Macleod)[15]as referred to, later in this decision, also supports the granting of the extension of time.
Taking into account the submissions of both parties, in particular, those matters raised by the Respondent have been assessed. The Applicant’s representative was responsible on the evidence, for the error in filing the application one day late.
No responsibility for the delay can be attributed to the Applicant. This assessment of this factor weighs in favour of the grant of an extension of time to the Applicant.
(2)(b) any action taken by the person to dispute the dismissal
It is necessary to take into account any action taken by the employee to dispute the dismissal.
The Respondent did not consider that the Applicant had taken definite steps to dispute the dismissal. However, the Applicant’s representative submitted that before the General Protections application was filed, that the Applicant had ‘already made clear’ to the Respondent that in the circumstances between the parties she planned to dispute the dismissal. Thus, it was submitted that the Applicant had taken action to put the Employer on notice, that she planned to dispute the dismissal and filed the General Protections application. Accordingly, this factor weighs in favour of granting the extension of time.
(2)(c) prejudice to the employer (including prejudice caused by the delay)
The Applicant’s representative conceded that a long delay in filing gives rise to a general presumption of prejudice to the Employer. It was argued that a short delay, as in the current circumstances, requires proof of actual prejudice by the Employer. That is how the one day in late filing, has prejudiced or will prejudice the Employer.
The Respondent’s solicitor emphasised in terms of the prejudice to the Employer, that the circumstances of defending a General Protections application can present an unfair disadvantage where there is potentially uncapped compensation and penalties may result. The Respondent stated that these potentially, significant, negative consequences for the Respondent should be taken into consideration given the lengthy period of representation for the Applicant. Therefore, it was argued by the Respondent that no delay in filing the application should have occurred and the statutory time limited should have been observed.
In the current circumstances, the prejudice to the Employer as stated by the Employer’s legal representative, is the same as may be experienced by a Respondent in matters where there is no delay in filing. Those are possible consequences of a General Protections matter, irrelevant of the time of filing and do not set out particular prejudice to the Employer caused by the delay in filing. Therefore, this matter is considered to be neutral in weighing the delay in filing the application.
(2)(d) the merits of the application
The Applicant’s representative set out that if the application is meritorious, this is a factor weighing in favour of an extension of time. It was argued that an explanation for a limited delay may be accepted if the claim is highly meritorious. It is considered premature at this stage for the Commission to embark on a detailed consideration of the substantive case. It simply requires a relative assessment that the employee has a sufficient or arguable case on the merits of the case.
The Respondent argued that there was a lack of case particulars provided by the Applicant, connecting the reasons for the termination of employment, to the alleged breaches of the General Protections provisions. Therefore, the Respondent submitted the merits of the application cannot be clearly assessed. The Respondent noted that the Applicant attended, with her legal representative, at the show cause meeting on 4 October 2024. The Respondent argued that there was no merit to the application on the material set out by the Applicant, in the application.
The Respondent stated that the Applicant did not participate in the show cause meeting nor provide a response to the show cause meeting. The Respondent stated that accordingly, it was difficult for the Respondent to make an assessment on that limited material. However, the Applicant’s representative had argued that the application had merit and had provided a detailed sequence of matters in the application relevant to the alleged breaches of workplace rights (as outlined earlier in this decision).
A conclusion cannot be drawn at this stage as to whether the facts relied on in the application, support a determination of the contraventions, as alleged. The Applicant’s representative, in his statutory declaration, confirmed that the Applicant had provided him with all of the relevant instructions and information in relation to the application, and he emphasised that the fault of the late filing was completely with him.
In the decision of Telstra-Network Technology Group v Kornicki,[16] the Full Bench of the Australian Industrial Relations Commission 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.”
Significant evidence on the merits of an application is rarely provided on the consideration in the extension of time matter. Further, the Commission should not embark on a detailed consideration of the substantive case in the jurisdictional proceedings for the purpose of determining whether to grant an extension of time, to an Applicant to lodge her or his application.’[17]
Given a full analysis of the merits and testing of the evidence cannot be undertaken at this early time, the matter is considered to be neutral in the current extension of time assessment.
(2)(e) fairness as between the person and other persons in a like position
The Applicant set out that there is a need for the consistent application of the principles to ensure fairness between the Applicant and others in a similar position. In this matter there were no other persons in a like position. According this matter is considered to be neutral in assessing the extension of time.
Further Consideration on the 1 Day Delay in Filing
‘Exceptional circumstances’ cases of representative error responsible for a one day delay in filing, are not considered to be significantly common. The Applicant’s solicitor having accepted responsibility for the circumstances referred to the unusual sequence of events in the late filing, for which the Applicant was blameless. The Applicant, in accordance with the case authority of Stogiannidis,[18] bears the onus in establishing the existence of ‘exceptional circumstances’. The threshold test has been taken into account as has been the Applicant’s solicitors’ explanation as set out in the statutory declaration regarding the reason for the one day delay in filing the application. No responsibility for the delay was apportioned to the Applicant and the Respondent did not seek to cross examine the Applicant, in relation to that matter.
The Full Bench in the Jordan and Mcleod[19] decision, dealt with the issue of representative error in terms of an extension of time. This case was sent to the parties in the current matter, for a response. In that Full Bench case, those applications were filed one business day outside the time limit, and it was solely due to representative error. The Full Bench in that matter, similar to the current circumstances, noted the reason for the one day delay was based on the unchallenged evidence of the Applicant’s union representative, in terms of the miscalculation of the twenty one day time period resulting in the delay in filing.
The Full Bench set out as follows in relation to the reason for the delay:
“[31] Having regard to that evidence, there was no basis for a finding that either of the appellants contributed to the delay in filing their unfair dismissal applications from Friday, 2 August 2024 to Monday, 5 August 2024.
…
[33] It is correct to say that, even when representative error is relied upon as an explanation for the delay, it is necessary to examine the conduct of the Applicant to ascertain the reason for the delay. It has been said that “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. However, the conduct of the Applicant will be relevant only to the extent that it contributed to or explains the delay. That is the relevance of the observation of the Full Bench in Clark v Ringwood Private Hospital that “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.
…
[35] However, conduct of the Applicant can only be relevant for the purposes of s 394(3)(a) to the extent that it casts light on the reason for the delay in filing the application or whether that reason represents an acceptable explanation for the delay. With respect, the Deputy President attached significance to the absence of evidence that the appellants took steps to enquire into the status of their applications after 26 July 2024 without identifying in what way that omission contributed, or could have contributed, to the delay in filing the applications from 2 August to 5 August 2024.
[36] This is not a case in which an application was filed months out of time and the Applicant “left the matter in the hands of their representative and took no steps to inquire as to the status of their claim”. The delay in these cases was one business day. The appellants sought the assistance of the CFMEU in a timely manner, instructed the CFMEU to provide representation and assistance in filing the applications, and were responsive and forthcoming with the information necessary to prepare the applications. The appellants left the matter in the hands of Mr Cardinal for one week (26 July to 2 August) after he had represented to them that the CFMEU would handle the filing of their applications. Further, given that Mr Cardinal mistakenly believed that he had until Monday, 5 August 2024 to lodge the applications with the Commission, if either of the appellants had contacted him in the period from 27 July 2024 to 2 August 2024, it can be inferred that Mr Cardinal would have simply assured them that their applications would be filed within time, on 5 August 2024. It is unrealistic and unreasonable to suggest that the appellants should have conducted their own research to check whether their union, on whom they were entitled to rely for industrial advice and representation, had correctly calculated the day on which the 21-day period expired. In the circumstances of the present cases, there is nothing more that either of the appellants could reasonably have been expected to do to ensure the applications were filed within time.
[37] We consider that the facts of the present cases raise similar considerations to those dealt with in Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728; (2011) 211 IR 347 where the Full Bench concluded [emphasis added]:
[30] Mr Robinson arranged legal advice three days after the termination of his employment. At that time Mr Robinson requested that Mr Tayler prepare a client agreement for his consideration and upon receiving the agreement, he executed the agreement on 13 May 2010, within a week of its receipt. On the day he executed the agreement, Mr Robinson instructed Mr Tayler to file a general protections application on his behalf. It is unsurprising that Mr Robinson, having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative’s requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of providing clear instructions to Mr Tayler to lodge his application.”
[31] As noted by a Full Bench in La Rosa v Motor One Group Pty Ltd, in the context of s 170CE of the WR Act:
As is evident from Clarke, little might be required to satisfy the Commission that the Applicant was blameless in the delay. In the context of a relatively short delay, it may simply be a matter of establishing that the Applicant gave instructions to lodge [in this case] a Notice of Election and thereafter left matters in the hands of his or her representative.
…
[36] We find that there was an acceptable explanation of the reason for the delay in lodgement of the application - representative error resulting from the oversight of Mr Robinson’s original representative of the electronic reminder whilst the filing of the application was within his care and responsibility. In circumstances where Mr Robinson had promptly sought legal advice following his termination, promptly executed a client agreement prepared on his instructions and, upon doing so, immediately instructed his original representative to lodge a general protections application, we find that he was entitled to rely upon his representative to act on his clear instructions to file an application and was blameless for the delay in lodgement of the application.”
(emphasis as per decision)
[38] For the reasons given, we accept the appellants’ contention that the Deputy President erred in failing to find that the only reason for delay was representative error by an employee of the CFMEU and that the appellants were blameless for the delay in filing their applications and did not contribute to the delay through their conduct.
…
[43] As to s 394(3)(a) of the Act, we find that, for the reasons explained above, representative error was the sole reason for the delay of three calendar days or one business day (from 2 August to 5 August 2024) in filing the unfair dismissal applications with the Commission and that the appellants were blameless for that delay. It follows that the reason for the delay weighs in favour of a finding of ‘exceptional circumstances’.”[20]
Conclusion
In the current case before the Commission (as currently constituted), the unchallenged evidence was that the Applicant had efficiently attended to the review of the application and sent it back to her solicitor to file. The circumstances are analogous to the Full Bench’s decision as cited in that no blame for the late filing can be attributed to the Applicant and the Applicant on the face of the matter gave timely instructions to her solicitor to progress the application or file it. Further as set out on receiving the application she responded efficiently to allow for the filing of the application. The circumstances align with the reasoning in the Full Bench’s decision as set out below:
“[49] Taking into account the considerations set out in s 394(3)(a) to (f) of the Act, we are satisfied that there are ‘exceptional circumstances’ in the present cases so as to permit further time to be allowed for the applications to be made. It is out of the ordinary course, unusual and special for Applicants in unfair dismissal cases to take timely action to instruct their union to provide representation and assistance to file unfair dismissal applications, be responsive and forthcoming with information to their union representative, have represented to them that the union will handle the filing of the applications, not sit on their hands and do nothing for an extended period of time, only to find out that their union representative miscalculated the 21 day time period by one business day, with the result that their applications were filed three days late. For the same reasons, we consider it appropriate to exercise our discretion under s 394(3) of the Act to allow a further period for each of the appellants to lodge their unfair dismissal applications in the Commission.”[21]
In accordance with the case authorities as set out, and the criterion in s.366(2), in addition the reasons for the one day delay are considered to be ‘exceptional circumstances’. Therefore, the discretion pursuant to s.366(1)(b) to extend the time limit is exercised to extend the time limit and to accept the application. The jurisdictional objection is dismissed.
I Order accordingly.
COMMISSIONER
Matters determined on the papers.
[1] Ho v Professional Services Review Committee No 295 [2007] FCA 388, 10 [25].
[2] Ibid 10 [26].
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38] (‘Stogiannidis’).
[4] (2011) 203 IR 1, 6 [15].
[5] Ibid 5 [13].
[6] Ibid 5–6 [13].
[7] Stogiannidis (n 3) [38].
[8] Ibid.
[9] Dean-Villalobos v QGC Limited [2013] FWC 1537; 229 IR 178 [146] (‘Dean-Villalobos’). It is noted that at the time of this decision the period of time was 60 days, however the principle is still applicable.
[10] Ibid.
[11] Dean-Villalobos (n 9) [146].
[12] Christian Atoche v Crown Sydney Pty Ltd [2024] FWC 2156 [2] (‘Atoche’).
[13] Atoche (n 12) [31]-[32].
[14] Ibid.
[15] Jordan and MacLeod v Multiplex Australasia Pty Ltd[2024] FWCFB 440 (‘Jordan and MacLeod’).
[16] (1997) 140 IR 1.
[17] Kyvelos v Champion Socks Pty Ltd, 10 November 2000 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]–[38].
[18] Stogiannidis (n 3) [39].
[19] Jordan and MacLeod (n 13).
[20] Ibid [31],[33],[35]-[38],[43].
[21] Ibid [49].
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