Momcilo Romic v Blacktown City Council
[2020] FWC 2533
•15 JUNE 2020
| [2020] FWC 2533 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.773—Termination of
Momcilo Romic
v
Blacktown City Council
(C2020/1890)
COMMISSIONER JOHNS | SYDNEY, 15 JUNE 2020 |
Application to deal with an unlawful termination dispute – Extension of time – Representative error alleged
Introduction
[1] On 26 March 2020, Momcilo Romic (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.773 of the Fair Work Act 2009 (Cth) (FW Act) alleging that the termination of his was unlawful (namely that the termination was because of a temporary absence from work because of illness or injury). The Applicant also alleges discrimination on the basis of race and religion.
[2] The Respondent to the application is Blacktown City Council (Respondent/Council).
[3] Section 774(1)(a) of the FW Act requires that an application made under s.773 must be made “within 21 days after the was terminated”.
[4] The Application was 126 days late (i.e. it was made 147 days after the termination of ).
[5] Because the application was lodged out of time, it is necessary for the Commission to first determine whether to allow a further period for the application to be made (i.e. decide whether to grant an extension of time) prior to issuing a Certificate pursuant to s.776 of the FW Act.
[6] Subsection 774(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:
“Section 774 Time for Application
(1) An application under section 773 must be made:
(a) within 21 days after the was terminated; 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 employee to dispute the termination; 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.”
[7] A Full Bench of the Commission has held (in the context of unfair dismissal applications) the following in relation to exceptional circumstances:
[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. 1
[8] The applicant bears the onus of demonstrating that exceptional circumstances exist. 2
[9] In Tamu v Australia for UNHCR 3 a Full Bench addressed “exceptional circumstances” in the context of a general protections claim. The Full Bench held that:
[18] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 4 A decision whether to extend time under section 366(2) involves the exercise of a discretion.5
…
[20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all 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. 6
Commission proceedings
[10] Following lodgement of the Application, the matter was allocated to me on 31 March 2020 to determine the question of whether the Applicant should be granted an extension of time.
[11] On 1 April 2020, I scheduled the matter for a mention/directions hearing to narrow the issues in dispute and to set a timetable for the conduct of the matter. At the hearing I issued the following directions focusing attention to the extension of time question pursuant to s.774:
“Further to the Respondent’s extension of time jurisdictional objection under s.774 of the Fair Work Act 2009 (Cth), the Fair Work Commission (Commission) directs that:
[1] By no later than 4:00 pm on Friday, 10 April 2020, the Applicant must file in the Commission and serve on the Respondent an outline of argument, statements of evidence or other documents the Applicant intends to rely upon in support of its extension of time application addressing s.774(2).
[2] By no later than 4:00 pm on Friday, 17 April 2020, the Respondent must file in the Commission and serve on the Applicant an outline of argument, statements of evidence or other documents the Respondent intends to rely upon in opposition to the Applicant’s extension of time application addressing s.774(2).
[3] By no later than 4:00 pm on Friday, 24 April 2020, the Applicant must file in the Commission and serve on the Respondent any materials in reply.
[4] By no later than 4:00 pm on Monday, 27 April 2020, the parties must notify the Chambers of Commissioner Johns via email whether the matter can be determined on the papers filed.
[5] If the parties do not consent to the matter being determined on the papers filed, the matter will be listed for a jurisdictional extension of time hearing at 10:00 am on Tuesday, 28 April 2020, via telephone.”
(FWC Directions)
[12] The parties filed and served their materials in accordance with the FWC Directions and after the close of submissions, both parties consented to the matter being determined on the papers that had been filed. Accordingly, the hearing listed for 28 April 2020 was vacated.
[13] In considering the matter it became apparent that one of the bases upon which the Applicant says he should be granted an extension of time is that he was the victim of the errors occasioned by his representative, the United Services Union (USU). On 21 May 2020, I wrote to the USU in the following terms:
“In the above matter Momcilo Romic has made an unlawful termination application under s.773 of the FW Act.
His application was 126 days out of time.
Whether to grant the Applicant an extension of time has been referred to Commissioner Johns for determination.
Substantively the Applicant asserts that the reason for the delay was representative error on behalf of the United Services Union. Specifically, it is contented that USU employees failed to provide the Applicant with advice (or advice in a timely manner) about the causes of action in respect of the termination of his (that occurred on 31 October 2019), e.g. the possibility of the present unlawful termination proceedings and the time limit for filing the same.
Attached to this email are the submissions filed by the Applicant.
If the Applicant is correct in his contentions there is a possibility that, if representative error is found to have existed, adverse comments may be made about the United Services Union, Ms [name redacted] and Mr [name redacted].
For this reason the Commissioner considers it appropriate that the USU and its employees be provided with a right of reply to that which is alleged against them.
[14] On 29 May 2020, the USU replied indicating that “it does not intend to comment on the matters raised…”
Chronology of Events
[15] The following matters were either agreed or not otherwise contested. Consequently, I make the following findings of fact:
a) In July 2002, the Applicant commenced with Council as a cadet.
b) In 2005, the Applicant became a Town Planner on a full-time basis.
c) The Applicant was a member of the USU.
d) In 2018, the Applicant suffered a workplace injury.
e) On 24 March 2018, the Applicant was injured in a motor vehicle accident. He required some time off work.
f) The Applicant was absent from work between March and July 2018.
g) On 30 July 2018, the Applicant returned to work.
h) Between 12 November 2018 and 21 January 2019, the Applicant took a further period of leave.
i) On 3 February 2019, the Applicant was involved in a second motor vehicle accident. He continued to require time off from work.
j) On 3 October 2019 Council wrote to the Applicant about being on leave. ouncil contended the leave was without approval.
k) On 9 October 2019, the Applicant attended a meeting with Council representatives. He attended with his representative from the USU (First USU Contact).
l) Also on 9 October 2019, Council wrote to the Applicant. The correspondence was entitled “Direction to Attend Work.” He was directed to attend work by 16 October 2019.
m) On 10 October 2019, acting on the advice of the USU, the Applicant lodged a Worker’s Injury Claim Form.
n) On 16 October 2019, the Applicant’s workers’ compensation claim was denied.
o) On 17 October 2019, Council directed the Applicant to attend work on 21 October 2019.
p) On 18 October 2019, the Applicant advised Council that he was awaiting legal advice and would not be returning to work on 21 October 2019.
q) On 21 October 2019, Council sent the Applicant a notice of show-cause meeting scheduled for 23 October 2019. The Applicant declined to attend the meeting.
r) On 22 October 2019, sent the Applicant a notice of show-cause meeting scheduled for 30 October 2019. The Applicant declined to attend the meeting.
s) On 31 October 2019, the Respondent terminated the Applicant’s . The reason given was, the Applicant’s,
“absence from work is ongoing and unauthorised and that you refused to follow lawful and reasonable directions to attend meetings and return to work.’
t) On 31 October 2019, the solicitor that the Applicant was dealing with in relation to his workers’ compensation claim advised him to contact his USU contact person “to discuss [his] prospects in relation to making a claim for unfair dismissal.”
u) On 31 October 2019, First USU Contact advised the Applicant she was on leave until 18 November 2019. She offered to set a meeting with her replacement “next week”.
v) On 1 November 2019, the Applicant received an email introduction to the another USU contact (Second USU Contact).
w) On 5 November 2019, the Second USU Contact invited the Applicant to contact her.
x) On 11 November 2019, the Applicant wrote to the Second USU Contact and asked if “there has been any further news on the unfair dismissal”.
y) On 21 November 2019, the 21 day time limit for the filing of the present application or unfair dismissal application passed.
z) On 10 December 2019, the Applicant wrote to both the First and Second USU Contacts seeking an update on his unfair dismissal case.
aa) On 12 December 2019, the Second USU Contact advised the Applicant that “[he] had slipped off [her] radar.”
bb) On 17 December 2019, the Applicant received advice from the USU that he did not have a case of unfair dismissal.
cc) On 18 December 2019, the Applicant asked his solicitor if he agreed with the USU advice. He sent follow ups to this email (to both the USU and solicitor) on 28 January 2020 and 24 February 2020.
dd) On 3 March 2020, the Applicant complained to the USU about the handling of the unfair dismissal matter. He engaged in correspondence with the USU about the same.
ee) On 26 March 2020, the USU advised the Applicant it would not be taking any further action in relation to his matter.
ff) On 26 March 2020, the Applicant lodged the current application alleging unlawful termination in breach of the general protections. He says he did so “upon doing my own research and seeking outside advice.”
Applicant’s Submissions
[16] On 10 April 2020 the Applicant filed the following statement:
1. I was employed by Blacktown City Council for approximately 17 years.
2. I began my as a Cadet Town Planner in July 2002 and became a Full-Time Town Planner in 2005.
3. During the course of my I was a financial member of the United Services Union (USU). Membership of the USU is encouraged by colleagues at Council.
4. For the majority of my I enjoyed my time at Council as the work was rewarding, engaging and allowed me to assist with shaping and support the growth and development of my community, and saw my job as a lifetime position.
5. I only began to have issues with my employer after receiving a workplace injury in 2018 and reporting the incident.
6. On 13 March 2018, I suffered a workplace injury after attempting to lift a large and heavy box that had been placed on my desk. The incident injured my back and necessitated time off work to recover as per the advice of my General Practitioner, Dr Mohan.
7. The incident was reported to WHS and the relevant paperwork was completed by Council. Following this incident, I was mocked by fellow staff for taking time off work and had my professionalism and work ethic called into question by co-workers and management.
8. On 24 March 2018, I was involved in a Motor Vehicle Accident, which I was not at fault for, and I required time off work to recover from my injuries as my neck and back had sustained injuries. I commenced a third-party claim to cover loss of wages and I also took sick and annual/long service leave.
9. I commenced extended leave from my employer on 26 March 2018 until 29 July 2018.
10. I returned to work on 30 July 2018. Having returned to work, I found it difficult to do my job and to sit behind a desk for extended periods and to concentrate as my injuries meant that I was not comfortable and was in pain.
11. All my sick and annual/long service leave was paid back to Council from the third-party claim process and my sick and annual/long service leave was reinstated.
12. I was constantly mocked and harassed at work because of my injuries by staff. Management declined to provide ergonomic furniture or to allow flexible working arrangements as part of our office space relocation and refurbishment from the ground floor up to the first floor of Council Chambers. All staff participated in surveys and suggested their individual needs.
13. To give you an example of the harassment and workplace bullying that I experienced, various conversations and rumours were spread about me within Council and outside of Council.
14. Certain staff frequently referred to me as Mo Bryant (reference to Martin Bryant) and Momodouh Habib (reference to Mamdouh Habib, Australian held at Guantanamo Bay) and they prayed that I would not walk into Council with a weapon.
15. Some staff were of the view that I was of Islamic faith based on my usual name and appearance and mocked the Islamic faith. This was despite the fact that I am an Orthodox Christian and would bring into the office hard boiled decorated eggs to celebrate Easter and would share a Christmas ham and other goods before the lead up to Christmas.
16. Despite this, it was insinuated in a negative and derogative manner that I was a Muslim because I had not attended a work Christmas Party during my and my appearance supposedly suggests I am a Muslim.
17. I was informed that a Payroll Officer had alleged to my Co-Workers and management that I was ‘milking the system’ and that my injuries were not genuine.
18. Council Staff had been heard on the telephone telling my former clients ‘that he will not be back for a very long time’, despite the fact that I was still employed by Council, which implied that I was not at work and would not return.
19. My family member who works in government also heard rumours that I was milking the system. These rumours were spread by staff within Council.
20. My former manager Ms. Judith Portelli refused to even acknowledge me upon my return following the first motor vehicle accident and never did ask once ‘if I was okay?’ She would walk past me with her eyes glued to the floor. She did not even call me into her office upon my return to ask if I needed any support or changes. I found this especially disappointing as Council had promoted a policy of endorsing ‘R U OK? Day’, but failed to implement any such action when it was needed.
21. I have attached medical records from my treating Orthopaedic Surgeon, Dr Giblin 7, where I have:
• a protrusion at L5-S1 and haemangioma at L4.
• diffuse disc bulging at C5-6.
22. Due to the injuries found further leave was taken from 12 November 2018 to 21 January 2019 due to my ongoing back and neck pain. During this period, I tried different remedies, diets and exercises to improve my condition.
23. On 3 February 2019, I was involved in a second Motor Vehicle Accident, which I was not at fault for, and I required time off work to recover as my existing injuries were aggravated. I commenced another third-party claim to cover loss of wages and I was also on sick and annual/long service leave.
24. On 3 October 2019, I received correspondence from Council which alleged that my continued absence from work was without approval and that a reasonable excuse for my absence had not been provided and that I was required to attend a meeting on 9 October 2019. 8
25. I refuted this allegation, because I had kept in written contact with Council throughout my leave period and would update Council on my condition, including requests to extend my leave period as I wanted to do right by my employer by keeping them updated on my situation. 9
26. I note that in the period where Council claims I did not provide a reasonable excuse for my absence, I was already being treated as if I had left my as the belongings on my desk were returned without warning and in poor condition, my work vehicle was taken back and my fuel card was cancelled without warning and when I sought answers from Council in relation to these issues I was met with excuses or silence. 10
27. Given the treatment I was experiencing from Council I sought assistance from the United Services Union (USU) as I had not been in this position before and was unsure of my rights and obligations in this situation.
28. On 27 September 2019, I contacted the United Services Union (USU) for help. Ms. Sandie Morthen from the USU was appointed as my case officer.
29. On 9 October 2019, I attended a meeting with Council USU Representative (Ms. Sandie Morthen) and Council (Mr. Gary Johnson, Ms. Diane Josephsen and Ms. Judy Portelli). Mr. Chris Johnson at the meeting claimed that I had not attended for work since 1 January 2019 and he alleged that I had not provided evidence to support why I had taken leave. I found it odd that Mr. Gary Johnson formed this opinion since I provided medical certificates to Council and I kept Council up to date about my situation.
30. The meeting was terminated by Mr. Gary Johnson and it was agreed he would write to me. Ms. Diane Josephsen and Ms. Judy Portelli did not speak during the meeting.
31. Mr. Gary Johnson did not write to me, instead Ms. Judy Portelli wrote to me, and on 9 October 2019 issued a correspondence titled Direction to Attend for Work which stated that since 1 January 2019, I had not submitted any evidence in support of my continued absence from work, and that I had to attend work by the 16 October 2019. 11
32. All my sick leave taken to date was adequately justified by medical reports (certificate of capacity or certificates) with the exception of the period where leave without pay commenced where advice about a worker’s compensation claim number/form was pending from Council.
33. At the conclusion of the meeting, the USU advised me that I should lodge a Worker’s injury claim form without delay.
34. On 10 October 2019, I submitted to Council and the USU a Worker’s Injury Claim Form and a Certificate of Capacity. 12
35. On 10 October 2019, I emailed the USU a copy of a chronology of events which summarised my written advice to Council. 13
36. On 14 October 2019, I provided a response to Council’s request to attend work on 16 October 2019. 14
37. On 16 October 2019, Council provided a Section 78 notice declining my workers compensation claim. 15
38. On 17 October 2019, Council issued another direction to attend work on 21 October 2019. 16
39. On 17 October 2019, I corresponded with the USU appointed lawyer- Mr. Peter Lleonart (Carroll and O’Dea Lawyers) after he received instructions from Ms. Sandie Morthen to assist me.
40. On 18 October 2019, after receiving advice from the USU appointed Lawyer, I emailed Council and the USU and advised:
‘…Hello,
I have my point clear that I am awaiting on legal advice and may proceed to appeal the matter.
Therefore, I will not be returning to work on Monday.
Thanks.
Momo…’
41. On 21 October 2019, Council wrote to me giving Notice of Meeting- Show Cause, and that a meeting was scheduled for 23 October 2019. 17
42. On 21 October 2019, I emailed Council and the USU and I advised:
‘…Thank you for the notice, however I cannot make it due to other commitments already booked on that day.
Please email me the correspondence instead.
I’m yet to receive legal advice and this is pending.
Sandie will confirm this also.
I’m willing to return, however I would like to make a better informed decision before I do as that is my legal right.
Thanks and I will respond accordingly…’
43. On 22 October 2019, Council wrote to me giving Notice of Meeting- Show Cause and to notify me that a meeting was scheduled for 30 October 2019. 18
44. On 25 October 2019 1:29PM, Ms. Sandie Morthen advised me and Mr. Peter Lleonart from Carroll and O’Dea by email of the following:
‘…Hi Momo and Peter
Just so you know it is my understanding that if we don't respond to the show cause letter your will be terminated. It may be terminated even if we do respond. However I wouldn't be doing my job if I didn't urge you to respond. I do not think this will have any impact on the WC claim however Peter can confirm.
Sandie…’
45. On 25 October 2019, Mr. Peter Lleonart from Carroll and O’Dea advised me by email that:
‘…Agree . Yes I cant see any adverse impact on your by responding along the lines you are continuing to recover and are hopeful of being fit to return to work once your condition stabilises.
Regards…’
46. On 28 October 2019, based on the advice from the USU and Carroll and O’Dea, I wrote to Council and advised:
‘…Hello Judith,
Thank you for the correspondence dated 22 October 2019.
Unfortunately, I will not be attending the meeting scheduled.
I would like to make the following submission:
I am continuing to recover.
I am currently on leave without pay.
I intend on completing an Application for review by Insurer in overturning the notice dated 16 October 2019 which declined liability.
I am optimistic of being fit to return to work once my condition stabilises.
Regards,
Momo Romic…’
47. On 31 October 2019, Council wrote to me to confirm my termination. 19
48. On 31 October 2019, Mr. Peter Lleonart advised me by email:
‘…Hi Momo,
You will need to contact Sandie to discuss your prospects in relation to making a claim for unfair dismissal.
I am happy to liaise with her on that.
So unless you have already done so please give the USU a call …’
49. On 31 October 2019, Ms. Sandie Morthen of the USU emailed me to say:
‘…Hi I'm actually on sick leave now until 18/11. We can put together a file for unfair however it is my manager who decides if it runs. If you like I can set up a meeting for you with my replacement for next week? She can put together the file…’
50. On 1 November 2019, Ms. Sandie Morthen emailed myself and Ms. Sue Kealy:
‘…Hi Momo, meet Sue. Whilst she is replacing me she also still has to do her own role so you may nerd to be a bit flexible with meeting times. You will need to also sign a waiver given us authority to proceed. Sue will get one for you…’
51. On 1 November 2019, Ms. Sue Kealy from the USU was appointed as my new Case Manager as Ms. Sandie Morthen had commenced sick leave.
52. On 4 November 2019, I emailed Council. The email reads:
‘…Thanks.
I would like to thank you Judy for all your assistance over the 17 + years as a planning comrade and other good people we have in the DSU.
I wasn’t expecting this and frankly it’s a shock.
I will continue to seek legal assistance.
By the way, I don’t have anything to return as any PPE that I had was left in the car that was returned months back.
Take care, stay healthy and God Bless.
Momo…’
53. On 5 November 2019, Ms. Sue Kealy emailed me to say:
‘…Hi Momo, my apologies for not phoning yesterday. It was team meeting day, and I’m always exhausted after that.
Call me after the Melbourne Cup and we can discuss your situation. Otherwise call me tomorrow and we can chat.
My number is 0418495265.
Sue..’
54. On 11 November 2019 I emailed Ms. Sue Kealy. The email read:
‘…Hello Sue,
Hope your weekend was good.
Has there been any further news on the unfair dismissal and did you need more information.
I understand that the lawyers are pursuing the WC claim and the unfair dismissal is a separate matter.
Thanks Momo…’
55. On 10 December 2019, I emailed Ms. Sue Kealy and Ms. Sandie Morthen. The email read:
‘…Hello Sandie and Sue,
Hope all is well.
Peter had asked I follow up on whether there is any progress on an unfair dismissal case?
Are you able to shed some more light on this and perhaps provide an update?
Thanks.
Momo…’
56. On 12 December 2019 9:29AM, I received an email from Ms. Sue Kealy noting that no action had been taken on my matter as she had been having personal issues and was not focused on work. Her email read:
‘…Hi Momo,
My most sincere apologies, you slipped off my radar. I have been dealing with a number of personal issues and my focus has not been good.
I will be working on your matter today.
Could you please complete the attached and return asap.
Many thanks
Sue…’
57. On 12 December 2019 11:21AM, I received an email from Ms. Sue Kealy. Her email read:
‘…Hi Momo, could you please forward copies of all the emails you’ve sent to Council.
Also, do you have any evidence supporting why you were unable to attend the meeting on 30/10. E.g. medical certificate?
Thanks
Sue…’
58. On 12 December 2019 11:27AM, I received another email from Ms. Sue Kealy. Her email read:
‘…Hi it’s me again.
Could you please provide the following information.
What was your role at Council?
What date did you start at Council?
What was your weekly pay before tax?
Many thanks,
Sue…’
59. On 12 December 2019 12:09 PM, I responded to Ms. Sue Kealy’s email. I attached the relevant background information. I advised her:
‘…I was unwell and I could not get any additional treatment as I did not have a claim number.
I was given a referral to visit a psychologist dated 10/10/19- but did not do anything with it as I did not have a claim number. I recently had a cyst cut of my mouth due to the stress BCC caused me…’
60. On 12 December 2019 12:20 PM, I responded to Ms. Sue Kealy’s email with the following information:
‘…Town Planner.
1 July 2002- as a cadet planner. Years of service- 17.34.
$1772.80. Attached is the completion of letter where at point 4- they do not specify the reason for separation and at point 5- tick no for workers compensation…’
61. On 12 December 2019, I emailed the USU appointed lawyers Carroll & O'Dea Lawyers following on from a telephone call. The email reads:
‘…Hello Kate,
Thanks for organising the conference call.
Peter,
Thank you for your time also and advice.
To pick up the pieces, I went to see my GP’s office today.
The GP’s office is glad to release any documents from my medical records (3 manila folders) but they would like a request to be made by you for its release.
I followed up with the Union about an unfair dismissal case after our telephone conference and I hate to say it they forgot about me due to staffing issues/resources etc.
This happens and I cannot blame Sue for this as they are stretched.
Tomorrow the Union will prioritise the matter and assume you may hear from them.
If you do not believe I have a Worker’s Comp. case, following the release of the medical records etc., then it is what it is as there is nothing more I can do.
I hope this helps.
Momo…’
62. On 17 December 2019, I received formal advice from the USU on behalf of Ms Sue Kealy. 20
63. On 17 December 2019, I forwarded the advice received from the USU to the USU appointed lawyers. My email read:
‘…Hello Kate and Peter,
Attached is the formal advice from the USU.
I would appreciate your direction concerning Point i of the recommendation.
Point ii, a certificate can be released I would think within the period prescribed.
I look forward to your advice.
Thanks.
Momo …’
64. On 18 December 2019, I received an email from Mr. Peter Lleonart, which read:
‘…Yes Momo.
If you become fit to resume duties within 2 years you can apply for reinstatement.
It is a not often utilised option and would be likely to be resisted by the Council but yes if you can establish you have fully recovered from your injury within two years you can apply.
Thanks…’
65. On 18 December 2019, I forwarded the email from Peter Lleonart to the USU, which stated:
‘…Hello All,
Sue/Sandie,
See response below from Peter.
Peter’s view point is Council would resist this pathway- return within 2 years.
Have we ever gone down this pathway previously with Blacktown or any other Councils?
Peter/Kate,
The questions that remain to assist the USU are:
1. Am I or not entitled to receive compensation in relation to the injury?
2. Do I fit into the category/definition as an injured worker?
3. Do you agree with the USU that I don’t have a case for unfair dismissal.
Thanks.
Momo…’
66. On 28 January 2020, I followed up on my email of 18 December 2019. The email read:
‘…Hello All,
Hope you all had a wonderful break.
I’m following up on the last email below and any advice you have would be nice so I can get my life back on track?
Thanks.
Momo…’
67. On 24 February 2020 at 4:02PM, I followed up on my previous emails of 18 December 2019 and 28 January 2020 with the USU and Carroll and O’Dea Lawyers. The email read:
‘…Sandie,
Here is the last email.
As I said, I was touching base to see how things were moving since our last exchange.
It’s disappointing… that it feels like I’ve been put out with the trash and despite my 17+ years at that place.
Momo…’
68. On 24 February 2020 at 4:26PM, Ms Sandie Morthen replied to me in an email:
‘…Hi in response to your question have I heard of anyone being reinstated after 2 years the answer is no although I do know a couple of Councils that explain it when terminating someone under WC…’
69. On 24 February 2020 at 5:59PM, I replied to the USU and Carroll and O’Dea Lawyers. The email read:
‘…Thanks Sandie.
If Peter’s advice is in the negative I would like the USU to write to BCC confirming that I would like to be reinstated within the 2 year period as my condition is stabilising.
Before you do this you may seek Peter’s expert advice.
TA Momo…’
70. On 24 February 2020 at 6:03PM, Ms Sandie Morthen replied:
‘…The first step is an approved workers comp claim. Until its workers comp related its a fight we cant have…’
71. On 3 March 2020, I lodged a formal complaint to the USU as I believe my case was mishandled and I was not provided with support to take my matter further, as the Union had only responded to me after the timeframe had passed to lodge an unfair dismissal claim under the standard timelines. As I have never been involved in an matter I was at the mercy of the experts I had sought advice on to help me, and sadly I was let down by those I trusted to assist me. 21
72. On 6 March 2020, I received a response from the USU. 22 The correspondence states that appropriate action was taken to address and rectify this matter.
73. On 6 March 2020, I wrote to the USU where I lodged another complaint. The email read:
‘…Good morning Cathriona,
I’m really disappointed with this advice.
I called this morning explaining my case again and I was put through to the support team for advice.
The support team advised I write back to you and you would forward this email onto someone senior.
What I don’t seem to follow is the USU does not have a section which deals with complaints.
Every other organisation has a complaints officer or a section which reviews complaints or a peak body that I can get better advice.
There is one thing that you are missing, and at the end of the day, if my case officer- Sue was in the right frame of mind, I would have been given better direction/advice.
Attached are emails the support team sought that I pass on.
In summary, here is the exchange:
31/10/2019- Sandie advised she is going on sick leave.
1/11/2019- Sandie introduced Sue and advised I needed to be flexible with meeting times.
5/11/2019- Sue advised I’m always exhausted.
12/12/2019- Sue advised you slipped off my radar.
If the case officer had done her job right, I would be in a better position as the USU dropped the ball on my case and forgot about me in writing.
What is really disappointing, I was misrepresented by USU staff that were not in a suitable state of mind and that is professional negligence.
I lost my job, after 17 + years’ service and the USU forgot about me and I could have lodged Appeals without you, but the assurance was you would look after me which wasn’t the case. No wonder people hate the Unions! And I’m a Labor Party member.
What is interesting, Sandie in an email dated 8/10/2019 stated heads up Council seem to think you have a second job. How would she have known this as this was never discussed this with her directly. This suggests that some secret deals occurred in the background and Sandie was not looking out for my interests and rather worked for BCC’s interests that exploited my position.
I would like someone to call me i.e. Graham or Stephen as this is a joke that the USU stuffed up, plain and simple.
Regards.
Momo …’
74. On 9 March 2020, I began dealing with Mr Stephen Donley, Manager Metropolitan of the USU. I advised Stephen that I had begun seeking independent legal advice. I requested he discuss the matter directly with the Solicitor.
75. On 11 March 2020, Mr Stephen Donley in a text message stated that he will not talk to any Solicitor.
76. On 17 March 2020, I received 2 letters from Carroll and O’Dea Lawyers where they state they are not in a position to represent me and suggested that I pursue a psychological injury. 23
77. On 25 March 2020, I emailed Mr Stephen Donley and Mr Peter Lleonart, and stated:
‘…Hello Peter and Steve,
In terms of this matter, my response is I don’t have any psychological injuries so there is no point proceeding further from a legal means.
Yes, I’m a little pissed with the way things have moved along and things could be better.
From a health stance, I still suffer from ongoing back and neck pain.
I cannot sit in one spot for long and I have trouble sleeping.
I’m trying different exercises, a new diet and other changes to daily routines to deal with the pain and to see what works best.
Once my condition stabilises, I would like to return to Council.
For a successful return, the GP suggested that I will require a return to work plan and to re-commence work with 1 or 2 days a week.
The whole corona virus epidemic is more important then my return to work and I am mindful of this and other priorities.
The appropriate avenue now would be the USU negotiates a return to work strategy with Council.
The biggest hurdle that I will need to overcome is the inhouse culture and badgering of my character and repute.
I was told by internal sources that the planning Manager does not want me back and my role is to be replaced.
Management is worried about me being a whistle blower about some of Management’s indiscretions over the last 17+ years.
They make it clear they do not want me back under any circumstances and will make it hard.
You may note I was already victimised and harassed during my time away from work.
This included ongoing name calling (internal sources have confirmed), confiscation of my car, cancellation of my fuel card, not refunding my out of pocket child booster seat replacement costs which were to be covered by the insurer, return of my work belongings to my home address and sabotage of these belongings, allocation of my work space to someone else and bad mouthing me and spreading rumours to other Council’s.
Despite this, I did not have an unfair dismissal claim.
Therefore, I guess I’m out of your legal hands and I need the USU to negotiate this return to work plan or they negotiate some other outcome.
For my return to be successful, at the very least I will need an ergonomic desk/chair and other considerations (i.e. working from home or flexible hours). But lets park this aside for now and let’s hear what Council has to say.
Thank you for your assistance from a legal perspective and stay healthy.
Steve,
Since there are no legal avenues, I will leave this with the USU to negotiate a successful return to work strategy as stated that I can go back within 2 years of the termination.
I am mindful of other matters which are important now that impacts on the whole world and visiting the GP is not the best time.
I will await on advice from the USU about my return to work and what they need from me.
Thanks.
Momo
78. On 24 March 2020, Mr. Peter Lleonart stated in an email:
‘…Re the making of this claim , yes in order to succeed it would be necessary for there to be medical support for the claim.
So if you feel you are still suffering from the condition you would need to be seeing your GP at least and a psychologist.
The GP would need to provide a workcover certificate of incapacity.
Thanks…’
79. On 26 March 2020, the USU wrote to me 24, The correspondence states:
‘…There was some doubt on both grounds but particularly about whether or not you were in fact an ‘injured worker’ which is defined as a worker who suffers and injury for which they are entitled to receive compensation.
As you identify in your email, you suffered no psychological injury and therefore are not entitled to compensation. As such, our view is that you do not meet the requirements for reinstatement as an injured worker under the Act.
Further, as you had advised Mr Donley that you had already engaged private legal representation in relation to these matters it would not be appropriate or possible for the Union to represent you in this matter.
As such the Union will not be taking any further action in relation to your matter…’
80. On 26 March 2020, I lodged an Unlawful Termination Application with the Fair Work Commission, as upon doing my own research and seeking outside advice I discovered that the circumstances of my termination did meet the criteria of Unlawful Termination, as I had been victimised and harassed whilst employed by Council and I was not given proper course for a rebuttal to defend myself against the allegations raised in relation to issues such as not providing evidence for leave taken, despite having done so.
81. On 3 April 2020, I reached out to the USU in an email which read:
‘…Good morning Steven,
I am disappointed that the USU is not willing to assist me on this matter as advised in writing on 26 March 2020.
Despite this, I filed a s.733- Application to deal with an unlawful termination dispute with the Fair Work Commission last Friday.
I am representing myself as I do not have any funds to engage lawyers or legal experts.
I don’t believe I was given natural justice on this matter.
A conference call was held this morning with myself, Council and Commissioner Johns.
The USU advice dated 6 March 2020 was lodged with the Fair Work Commission as evidence that I seek to make an application outside the 21 days after my termination.
Council tried to argue that Fair Work Commission had not jurisdiction on this case.
Commissioner Johns disagreed.
Commissioner Johns requested I obtain a witness statement from the USU. Namely, that a USU staff member Ms Sue Kealy who dealt with my case failed in her duty of care/responsibilities to look after my interests.
The witness statement is to be lodged with the Fair Work Commission by 10 April 2020.
I seek your assistance on this matter.
Momo Romic…’
82. I followed up further on the matter with the USU on 8 April 2020.
83. The USU did not reply to my requests for assistance at the time of lodgement of this submission.
84. I request the Fair Work Commission accept my application under Section 774(2) of the Fair Work Act 2009 (Cth) as:
a) I have provided my reasons and evidence about the delay of the application.
b) I sought guidance and expertise by the USU and the USU Law firm Carroll and O’Dea Lawyers.
c) The case officer Ms. Sue Kealy from the USU was unfit to carry out her role and neglected my matter as she was not capable of providing assistance due to her own personal issues which interfered with her ability to perform her role.
d) I had no knowledge of the legal framework as I am not an lawyer and I trusted the USU to look out for my interests.
e) I believe I had taken appropriate action by following up on the matter with the USU and USU Law firm Carroll and O’Dea Lawyers, as I was relying on the experts who had promised to assist me to guide me in an area of which I had no assistance.
f) I commenced dealing with the USU on 27 September 2019 and they failed to provide assistance before the normal timelines had passed, despite assuring me that they would be handling my matter and providing me with assistance.
g) Council will not be prejudiced by the delay of this application as the delay did not give me additional time to prepare a case, rather I was left in a limbo state and now am attempting to catch up to where I would have been if I had received adequate advice in the first instance.
h) On 4 November 2019, I wrote to Council after my termination stating that I would continue to seek legal assistance.
i) My understanding is the USU had informed Council about my situation during the period between 27 September 2019 to date.
j) I was told by Ms Sandie Morthen from the USU at the conclusion of my meeting on 9 October 2019 with Council that she knows my former Manager Ms. Judith Portelli on a personal level. I questioned whether she should have declared a conflict of interest or remove herself from the case, but was assured it was not necessary.
k) Ms. Sandie Morthen removed herself on 31 October 2019 because she commenced sick leave and passed on my case to Ms. Sue Kealy who was not fit for duty on 1 November 2019. Ms. Sue Kealy admitted she also had her own personal health problems.
l) Ms. Sue Kealy and the USU failed in their duty of care towards me by failing to keep track of timelines when handling my matter, as they knew I was inexperienced in matters and was thus relying on their expertise.
m) I received a formal correspondence from the USU on 17 December 2019. The response was issued 46 days after my termination and before the Christmas and New Year Holiday period shut down.
n) I continued to follow up on the matter with the USU by every means available to me and in the new year and I was penalised the moment I sought my own independent legal advice where the USU bluntly refused to assist me as it felt like I was getting nowhere.
o) Earlier this year with the Corona virus outbreak, I began to take precautions to look after myself and family and restricted unnecessary movements as advised by authorities and medical advice which caused further delays.
p) I believe there are merits of my application as the situation I found myself in was extraordinary.
q) Any other person in my position should be given the same fairness as extraordinary circumstances do exist and my case is one and I was not given natural justice and those who were engaged to protect my workers’ rights failed.
r) I believe I was terminated from my role of 17 plus years without even a minimum notice. A minimum notice would be 4 weeks. I was not even given the option of a redundancy as my former job title was readvertised.
s) Council was advised that I needed more time to get better and knew that I sought additional time off for health reasons up to the period of 2 November 2019 as I conveyed this to Council on 2 August 2019 in writing and they did not object to this.
t) I have concerns about the worker’s compensation claim process. Council is insured and underwritten by CivicRisk. The claim was denied by Council staff directly who already had a prejudice against me, and the claim should have been reviewed by CivicRisk or by an independent person. Council could have asked for a separate medical opinion.
u) Ms. Sue Kealy advised me that that any staff member in Council who puts in a worker’s compensation claim is always terminated no matter the case.
v) During my 17-year career at Council I was not found guilty of any misconduct or negligence. I never had any warnings about my work performance or any warnings that I was underperforming. It was also disheartening that a received a Certificate of appreciation from the General Manager in September 2019 thanking me for 15 years of loyal and dedicated service and in this same period, Council was terminating my because I had put in a worker’s compensation claim.
w) I sustained an injury and I became a future liability for Council and my role was terminated as a result of my injury that could be traced back to my initial workplace injury and that become the trigger for my dismissal and termination.
x) I believe I was unfairly dismissed that was triggered by workplace bullying as I was made to feel unwelcome after my initial injury at work.
y) I believe that Council penalised me for taking time off work due to injury and all my time taken off was reimbursed to Council. All my sick, long service/annual leave was credited by the third-party insurers and Council was not short-changed by my time off work to get better.
z) Both Council and the USU were deliberately unhelpful during my time off to recover and this made it difficult to access proper assistance and information.
Respondent’s submissions
[17] On 17 April 2020 the Respondent filed the following submissions:
“Summary
1 The Respondent seeks the dismissal of the Applicant’s Application for the Commission to deal with an unlawful termination dispute filed on 26 March 2020 (Application) on the ground that the Application was not filed within the 21 day time limit provided for by section 774(1)(a) of the Fair Work Act 2009 (Cth) (FW Act).
2 The Respondent submits that the facts in the present case are such that the Fair Work Commission (FWC) should not be satisfied that there are ‘exceptional circumstances’ under section 774(2) of the FW Act which are capable of justifying an exercise of the FWC’s discretion to extend the period for the Application to be filed under section 774(1)(b) of the FW Act.
Background
3 The Respondent notes the following key dates relevant to the jurisdictional objection:
(a) In July 2002, the Applicant commenced with the Respondent as a Cadet Town Planner
(b) On 31 October 2019, the Respondent issued the Applicant with a termination letter dismissing him for his , and his dismissal took effect that same day
(c) The Applicant had 21 days commencing the day following the date the dismissal took effect in which to lodge the Application, 25 and as such the cut-off date for lodgement of the Application was 21 November 2019, and
(d) On 26 March 2020, the Applicant lodged the Application with the FWC, 126 days out of time.
4 The Applicant has indicated that his Application was lodged out of time due to representative error, and outlined the following:
(a) On 31 October 2019, he was contacted by a legal representative and asked to contact a United Services Union (Union) representative to discuss his prospects of making an unfair dismissal application 26
(b) On 31 October 2019, he was advised by the Union representative that she was on sick leave until 18 November 2019, and that she can set a meeting with her replacement for the following week (that is, the week commencing 4 November 2019) 27
(c) On 1 November 2019, he was introduced to the replacement Union representative by email 28
(d) On 4 November 2019, he sent an email to a representative of the Respondent essentially acknowledging receipt of his termination letter, and advising that he will ‘continue to seek legal assistance’ 29
(e) On 11 November 2019, he sent an email to the replacement Union representative enquiring about ‘further news on the unfair dismissal’ and outlining, ‘I understand that the lawyers are pursuing the WC claim and the unfair dismissal is a separate matter’ 30
(f) On 10 December 2019, he sent an email to his Union representative outlining, ‘Peter had asked I follow up on whether there is any progress on an unfair dismissal case? Are you able to shed some more light on this and perhaps provide an update?’ 31
(g) On 12 December 2019, he sent an email to the Union’s legal representative outlining,
‘I followed up with the Union about an unfair dismissal case after our telephone conference and I hate to say it they forgot about me due to staffing issues/resources etc.
This happens and I cannot blame Sue for this as they are stretched.
Tomorrow the Union will prioritise the matter and assume you may hear from them.’ 32
(h) On 17 December 2019, the Union wrote to the Applicant and outlined, ‘the Union is of the view that you would not have a viable case for unfair dismissal’.
(i) On 18 December 2019, he sent an email to the Union where, among other things, he queried ‘do you agree with the USU that I don’t have a case for unfair dismissal’ 33
(j) On 28 January 2020, he sent an email to the Union outlining, ‘I’m following up on the last email below and any advice you have would be nice so I can get my life back on track?’ 34
(k) On 6 March 2020, he received an email from the Union in response to his complaint advising, ‘with respect to your unfair dismissal rights, having conducted a preliminary review of your matter, keeping in mind that Council terminated your following an extensive absence and due to an inability to perform the inherent requirements of your job, you may not have had a viable unfair dismissal case’ 35, and
(l) On 26 March 2020, he lodged an unlawful termination application (rather than an unfair dismissal application) with the FWC ‘as upon doing my own research and seeking outside advice I discovered that the circumstances of my termination did meet the criteria of Unlawful Termination’. 36
Legal principles
5 Section 774(1) of the FW Act provides that an unlawful termination application must be made within 21 days after the dismissal took effect, or within such further period as the FWC allows.
6 Section 774(2) of the FW Act lists the circumstances which the FWC must consider in allowing a further period for an application to be lodged as follows:
‘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 employee to dispute the termination; 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.’ 37
7 The test of ‘exceptional circumstances’ establishes ‘a high hurdle’ for an applicant requesting an extension, 38 and is discretionary.39
8 In Nulty v Blue Star Print Group Australia Pty Ltd, 40 the Commissioner referred at paragraphs [20] and [21] to the ‘well-established starting point for any consideration to extend a prescribed time’ noting that the Federal Court in Lucic v Nolan41 outlined that:
‘Where specific periods are fixed they are quite short. That carries obvious implications. However, the time limitations are not absolute… the court is given discretion. Nonetheless, it must, in my opinion, be accepted that it has deliberately been made the prima facie rule that proceedings not commenced in time should not be entertained’ (our emphasis added).
9 In Nulty v Blue Star Group Pty Ltd (Nulty), 42 a Full Bench of the then Fair Work Australia defined what constitutes ‘exceptional circumstances’ for the purposes of the FW Act as follows:
‘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.’ 43
10 The Full Bench in Nulty further provided that, “mere ignorance of the statutory time limit… is not an exceptional circumstance”. 44
11 It is noted that although Nulty concerned the provisions of section 366(2) rather than section 774(2) of the FW Act, it has been held that the provisions are relevantly the same and so the same approach has been adopted regarding consideration of applications made under section 774(2) of the FW Act. 45
12 Importantly, the onus to prove exceptional circumstances is on the Applicant as, for example, was noted by the Commission’s predecessor in Sharon McLennan v Northern Territory Stolen Generations Aboriginal Corporation (McLennan), 46 namely:
‘The onus rests with an applicant to demonstrate exceptional circumstances to justify FWA to exercise the discretion to extend time’. 47
Considerations
Section 774(2)(a) – the reason for the delay
13 In his Application, the Applicant has offered that he was unaware of the ‘unfair dismissal’ process or the associated ‘deadline’, due to an alleged representative error by his then representative, the Union.
Reason for delay - Ignorance of limitation period
14 It is well established at common law that ignorance of the 21 day limitation period under the FW Act is not an ‘exceptional circumstance’. Indeed, as the Full Bench in Nulty noted, the authorities indicate that it is all too common an occurrence for applicants in proceedings to be ignorant of the relevant limitation period. 48
15 The Respondent submits that the Applicant has not demonstrated that he acted expeditiously and took reasonable steps to ‘inform himself’ of the most appropriate avenue of redress for which he wanted to pursue.
16 In this regard, the Respondent notes the resources available on the FWC’s website are sufficiently clear and accessible ‘that any prospective applicant’ for an application involving dismissal ‘could make the decision to file an application’ and have observed the applicable time limitations. 49
17 In McLennan,an extension of time was declined by the FWC on the basis the applicant ‘was not diligent’ in obtaining or confirming legal advice and information. 50
18 Further, as outlined above, it has been held in Nulty that it is ‘all too common for dismissed employees to be unaware of time limits imposed in relation to making an application’, and that:
‘Parliament has chosen to condition the discretion to extend time for making such applications on the existence of exceptional circumstances. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance’. 51 (our emphasis added)
19 The Respondent submits that these circumstances are not exceptional and do not reasonably excuse the Applicant’s significant 126 day delay in lodging the Application.
Reason for delay - Representative error
20 In McLennan, the applicant had argued that the reason she did not lodge her application earlier was because it took the union some time to respond to her queries about what her options were, and that she held a ‘strong belief’ that the union would lodge the application on her behalf. There was no evidence that the applicant had provided clear instructions to the union to lodge an application, and there was no evidence to suggest that she took sufficient steps to enquire about the status of her claim. The FWC found that the applicant was not diligent in confirming the progress of the matter, and ultimately found that the applicant had not established ‘exceptional circumstances’. 52
21 Further, in Long v Keolis Downer (t/as Yarra Trams), 53 in declining a request for an extension of time, a Full Bench of the FWC noted the following as one of the propositions that should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
‘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’ (our emphasis added)
22 The Respondent submits that it is clear from the Application and the evidence filed that, from the date of dismissal, the Applicant and the Union discussed the potential to lodge an ‘unfair dismissal’ application. However, with reference to correspondence between the Applicant and the Union, it does not seem that a decision was made to proceed with an unfair dismissal application, and there is also no evidence that the Applicant had instructed the Union to proceed with an unfair dismissal case. In fact, the correspondence between the Applicant and the Union seems centred around the Union providing advice to the Applicant about the viability of an unfair dismissal case.
23 Although there was consideration of an unfair dismissal application, relevantly, there is no mention, or evidence to suggest, that the Applicant and the Union ever discussed or contemplated lodging an unlawful termination application with the FWC. As such, the Respondent submits that there has not been any representative error by the Union with respect to this Application as an unlawful termination application was not discussed.
24 It is noted that the Applicant does not expressly state that he actually instructed the Union to lodge an unfair dismissal or unlawful termination application, only that he sought their advice in relation to the viability of an unfair dismissal application, and briefly followed up on this advice in one email within the limitation period. The Respondent submits that the Applicant has displayed an indifference to making an application, and was ‘not diligent’ in this regard. 54
25 There is no evidence before the FWC regarding when the Applicant first gave instructions to the Union to lodge the Application on his behalf, if any, or any action taken by the Applicant during the limitation period to ensure that the Union was acting on those instructions. In this regard, the Respondent submits that the Applicant’s position in the present proceedings is analogous to that of the applicant in McLennan, in which an application for extension of time was ultimately dismissed.
26 The Union eventually advised the Applicant that it did not think he had an unfair dismissal case. This advice was provided to the Applicant at least 101 days before the Applicant subsequently made this separate unlawful termination Application to the FWC. This additional significant delay further highlights a reckless indifference by the Applicant to make an application, and further weighs against the circumstances being considered ‘exceptional’.
27 As the burden of proving the existence of ‘exceptional circumstances’ lies with the Applicant, the Respondent submits that in the absence of any evidence confirming that he had instructed the Union to lodge the unlawful termination Application, the FWC cannot accept the Applicant’s bald assertion that he was impacted by an alleged representative error of the Union. The Applicant has also failed to provide a credible reason for the delay for the entire period for which the Application was late. 55
28 Perhaps tellingly, and despite the Applicant’s request that it do so, the Union has not provided evidence in support of the Applicant’s application for an extension of time.
Section 774(2)(b) – any action taken by the person to dispute the dismissal
29 In his email to a representative of the Respondent after his dismissal, the Applicant indicated that he had not been expecting to be dismissed and that he would ‘continue to seek legal assistance’. 56
30 It is noted that:
(a) on 31 October 2019, correspondence to the Applicant indicated that there would be discussions around ‘prospects in relation to make a claim for unfair dismissal’, 57 and
(b) on 11 November 2019, the Applicant sent an email to his Union representative querying whether there was ‘any further news on the unfair dismissal’.58
31 While it appears that the Applicant was in contact with his then representative, the Union, during the 21 day limitation period, 59 there is no evidence before the FWC regarding what instructions, if any, the Applicant provided the Union during this period in respect of disputing the dismissal.
32 The Applicant does not assert, and offers no supporting evidence to suggest, that he notified the Respondent at any time during the limitation period, or at any other stage, of his intention to dispute the dismissal.
33 Accordingly, the Respondent submits that the delay was not related to any action by the Applicant to dispute his dismissal from the Respondent, and that this factor weighs against the FWC exercising its discretion under section 774(1)(b) of the FW Act.
Section 774(2)(c) – prejudice to the employer
34 The Respondent submits that it should not lightly be put to the cost and inconvenience of defending the Application in circumstances where it was lodged significantly out of time.
35 The Respondent further submits that an employer should be entitled to arrange its affairs on the basis that an application cannot be pursued beyond the limitation period in the absence of ‘exceptional circumstances’.
36 The Respondent considers that the Applicant should not be permitted to proceed in the interests of ‘fairness, justice, equity and good conscience’ as the Respondent has been and continues to be prejudiced by having to expend time and financial resources in responding to:
(a) the Application; and
(b) other matters associated with the Applicant’s former . 60
37 In any event, the Respondent submits that a mere absence of prejudice to an employer is an insufficient basis for the FWC to exercise its discretion under section 774(1)(b) of the FW Act to grant an extension of time. 61
Section 774(2)(d) – the merits of the application
38 Due to the consideration of this jurisdictional objection, the Respondent has not provided a substantive response to the allegations in the Application regarding why the Applicant’s dismissal was not unlawful.
39 However, the Respondent submits that the Application has no reasonable prospects of success as the Applicant was not dismissed for any prohibited reason alleged in the Application. The termination letter issued to the Applicant on 31 October 2019 made clear that he was being terminated as a result of unauthorised absence and a failure to follow lawful and reasonable direction to attend meetings and return to work. 62
40 It is noted that the Applicant has alleged that he was also dismissed as a result of his perceived religion and race. In this regard, the Applicant merely alleges that his former colleagues had made certain comments about his perceived race or religion, and provides no evidence connecting this with his actual dismissal by the Respondent.
41 The Respondent notes that the correspondence between the Applicant and the Union outlines that the reason for his dismissal was his unauthorised absence from work and an inability to perform the inherent requirements of his role. 63
42 The Respondent vehemently denies that the Applicant was dismissed for any prohibited reason, and confirms that it will strongly contest the Application in the event the FWC elects to exercise its discretion to grant the Applicant an extension of time.
Section 774(2)(e) – fairness as between persons in a similar position
43 The Respondent submits that the decision of McLennan illustrates circumstances in which persons in a similar position to the Applicant were not granted an extension of time in which to lodge their applications.
44 The Applicant has not established any differential treatment between him and other employees in a like position. 64
45 In fairness and as a matter of consistency, the circumstances of the Applicant are not exceptional and do not justify an extension of time. This factor tells against the grant of an extension of time by the FWC.
Conclusion
46 The Respondent submits that the Applicant has failed to discharge the onus of establishing the existence of ‘exceptional circumstances’ in these proceedings, and provide a credible reason for the delay for the entire period for which the Application was late. 65
47 The Respondent further submits that the alleged reasons for delay identified by the Applicant in the Application and his evidence are clearly not exceptional in nature, and that in consideration of all the relevant criteria required to considered by the FWC, the circumstances are not exceptional. 66
48 Accordingly, the Respondent respectfully submits that the FWC should refuse to allow the Applicant a further period of time in which to file the Application under section 774(1) of the FW Act, and therefore dismiss the Application for lack of jurisdiction.”
Applicant’s submission in reply
[18] On 24 April 2020 the Applicant submitted the following in reply:
1. I have been disadvantaged by this whole ordeal since my unlawful termination as I am not a legal practitioner and certainty not an or a compensation lawyer and I do not have any expertise in any of these fields.
2. I would note that during the initial hearing on 3 April 2020 to discuss the validity of hearing this matter the Respondent acknowledged that despite the fact that they lead the Council’s Human Resources Department, they are unfamiliar with the legal process around Law and had sought advice to prepare a response and represent them in any action taken.
3. The Respondent willingly undertook such action and expense, although now the Respondent’s appointed Counsel in Points 34, 35 and 36 of their Outline of Argument argue that Council is prejudiced by having to incur such an expense, despite the fact that at the initial hearing it was argued that Council would not be able to formulate a reply without expert advice due to their unfamiliarity with Law.
4. It can be seen that both parties in this matter are not at all familiar with the law surrounding Termination, however the main difference being that Council has the financial resources to engage experts to prepare a defence in the matter, and I am left to do my best to understand a process that is entirely foreign to me and that I have no expertise in.
5. Before and after my unlawful termination on 31 October 2019, I went to the USU and Carroll and O’Dea (USU appointed Lawyer)for assistance as I was unfamiliar with the processes involved in the unlawful termination legal procedures and workers compensation laws in NSW.
6. I went to the USU for the obvious reason, for urgent help and assistance as I was in unchartered waters and unsure of what to do because Council unlawfully terminated my role.
7. Given my case was complex, I went to the USU for advice. Now Council is trying to punish me for delaying an appeal to the Commission because I sought the advice from the USU is absurd.
8. The Respondent suggests that I should have done more with the USU. What more could I possibly do? Tell them what to do? The moment I mentioned I had sought my own legal advice, the USU refused to have anything to do with me? I was not ignorant, and my chronology of email exchanges demonstrates this.
9. The USU and Carroll and O’Dea advised me from day one I had two legal matters to deal with as part of my case.
10. The first concerns the unlawful termination and the second concerns the rejected workers compensation claim which caused my termination. Both these matters were linked and triggered the unlawful termination.
11. I could not lodge the application for unfair termination to the Commission earlier because I had not received proper advice on my workers compensation claim by the USU that was denied by Council.
12. My goal was to get my job back and I enjoyed working at Council. I was of the view that I would fall into the category of an injured worker and my job would be reinstated as all I wanted was my job back.
13. My case is extraordinary as I am tangled in a web of various facets that cover the motor vehicle third party processes in NSW, worker’s compensation laws, unfair dismissal, and unlawful termination laws because I sustained an injury.
14. I had an injury at work that was aggravated by 2 separate motor vehicle accidents which I did not cause, and I was unlawfully terminated because I was absent from work to get better.
15. I did everything I could do legally by consulting the USU and took on their advice and guidance and that is what any person in my shoes would do. That is why I paid the USU weekly fees and became a member.
16. The USU failed in their duty of care due to their own in-house operational problems and accountability with staff. I have given evidence to support this.
17. I had no control of the USU staff and what their roles and responsibilities are as employees and I cannot tell them what to do or how they should do their job and I presumed they would do the right thing by me at all times.
18. I trusted the USU and I was not aware that USU staff were not fit to carry out their roles during this period and I had no clue of what was happening inside the USU and I thought it was standard procedure as they had stated that I can go back to work once my condition stabilises within a 2 year period.
19. I have never gone to the USU before in my career since I started my for Council back in 2002.
20. I am not familiar of any legal cases where a Union staff member neglects a case like mine or indirectly neglects a case because of their own health problems.
21. I am not familiar of any cases, where people get tangled in the same web as have I.
22. I do not believe this a common occurrence which people find themselves in where I had to navigate the waters of unlawful termination and compensation laws.
23. I do not believe the USU or any Union would intentionally neglect cases like mine, and this is highly unusual, and it happened because a USU staffer was unwell and this was the cause of delays and perhaps the staffer was also unfamiliar with the legal processes involved with regard to unfair dismissal and unlawful termination.
24. The Respondent is also unfamiliar with the processes involved and had to engage their own legal representation.
25. I believe the neglect by the USU on my case is unprecedented and despite this, I sought their continued help to get my job back as I thought this was the right thing to do.
26. The USU refused to assist me the moment I sought to obtain my own legal advice as I needed help as I was not getting the help I needed after the new year in 2020 as I was not told if I met the definition of an injured worker and whether I could go back to work.
27. I did not expect the USU would refuse to assist me after the admission from the USU staff member that I slipped off her radar and after I started to ask more questions.
28. I do not believe this is normally encountered with people in my situation as I only received formal advice from the USU on 17 December 2019 and that was 48 days after my date of termination.
29. I believe I was not given natural justice or proper help from the USU and as a result of their neglect, I cannot have my case reviewed is not the intent of Section 774(1) of the FW Act.
30. The Respondent is of the view that I should have done more. I do not know what more I could have performed as I followed up all my inquires in writing and this is separate from my calls to the USU.
31. Who was I to judge the USU about time frames when Council was not perfect in addressing complaints or dealing with local government matters?
32. The Respondent is suggesting I ought to have done more. My email exchanges show that I was proactive, and I wanted my job back and to get my life back on track.
33. The Respondent is so gung-ho about dates, but they fail to acknowledge their own mistakes.
34. I explained to Council that I was in contact with Council staff during my temporary absence from work and that they raised no objections.
35. On 2 August 2019, I advised my Manager Ms. Judith Portelli in writing that I needed more time to get well. The email read:
‘… Hello,
Next Wednesday I have a conference with me Rehab. Officer and family GP.
I will not be back.
On Monday --- I need to see the family GP.
The Insurer/ Rehab. Officer had suggested that I now lodge a Workers Comp. claim as they are of the view my injury is related to the work injury to begin with.
I’m totally lost with this process as everything is confusing….
I cannot do any forms today as I’m not in Sydney.
I will complete any forms etc next week – Monday; as Vince mentioned he wanted completed forms in by 10am Tuesdays for payroll.
Any leave that I have will continue to be used and if I don’t get paid so be it as it is what it is and I have other things on my mind.
With respect to resourcing (wow seems like nothing has changed in that place), I suggest that you probably plan my absence for another 12 weeks.
TA.
Momo…’
36. My Manager Ms. Judith Portelli did not object to my additional request for additional time away from work and became fixated on the workers compensation claim which are dirty words in Council.
37. Council understood I would not return to work prior to 2 November 2019 and yet they terminated me despite my efforts of explaining this to Council staff.
38. The USU wrote to me on 17 December 2019 with formal advice. This is a week before the Christmas 2019 shutdown and is the worst time to deal with anything.
39. I followed up on my matter in the New Year of 2020.
40. The covid-19 pandemic and the safety and wellbeing of myself, my family and others caused further delays as I could not see anyone in person, and I waited for their written advice.
41. I do not believe I was ignorant with the statutory time frame as those who I sought assistance were meant to look after my interests and did not give me the remedy within a reasonable time frame and when I did receive the response it was at the worst possible time for the Christmas and New Year shutdown.
42. My case also deals with a worker’s compensation claim. I am not an expert when it comes to workers compensation law which had also complicated matters.
43. The Respondent states the application was lodged 126 days after the termination. I only knew of the remedy by the USU on 17 December 2019 and that was 48 days after my date of termination. Despite this, I continued to work with the USU about getting my job back as an injured worker under the workers compensation laws.
44. The Respondent confirms and agrees that on the 6 March 2020, the USU advised me I had no case of unfair dismissal where the USU advice was procedurally incorrect as my case was for unlawful termination.
45. The Respondent confirms and agrees the USU only gave me the final advice on 26 March 2020 which concluded my case and my dealings with the USU were also terminated by them as I was not categorised as an injured worker.
46. Whether the date was 6 March or 26 March 2020, this is the period the USU refused to assist me any longer and I lodged the Application to Commission on 27 March 2020 (within 21 days) for unfair termination as that was the correct procedural action.
47. Council terminated my role on 31 October 2019 and were fully aware that I sought leave up until 2 November 2019.
48. Council in its letter dated 3 October 2019 states my ‘…continued absence from work is negatively impacting the Town Planning section and creating an operational burden on that section…’ and affirms that I did not have permission to be on leave since the 1 January 2019 despite evidence to the contrary and that since 16 September 2019 I had not given a reasonable excuse even though I clearly specified I needed more leave up to 2 November 2019.
49. The USU staff member Ms. Sue Kealy did not do her job properly and was not dismissed or terminated by her indiscretions because she had her own illnesses. The USU decided to support her.
50. I on the other hand was terminated because I had an injury and I gave clear instructions to the USU to help me as I needed help and I do not know of what more I could have done as I followed up in writing as a record and is further to all my attempts of endless calls.
51. I actioned any items the USU wanted me to do within immediate time frames and I was diligent to follow up on my case with the USU in writing as I had two legal matters to deal with. The first was the unlawful termination and the second was the rejected workers compensation claim that were interwoven. I could not contest the unfair termination without knowing where I stood on the workers compensation claim because I could have been defined as an injured worker; and If I was, I could be reinstated in my role within 2 years of termination.
52. It was on the 26 March 2020, when the USU advised me that there was,
…some doubt on both grounds but particularly about whether or not you were in fact an ‘injured worker’ which is defined as a worker who suffers and injury for which they are entitled to receive compensation.
As you identify in your email, you suffered no psychological injury and therefore are not entitled to compensation. As such, our view is that you do not meet the requirements for reinstatement as an injured worker under the Act.’
53. I believe there are exceptional and compassionate grounds on my case, and my case is highly unusual as I did not know where I legally stood on my case until 26 March 2020 where the USU stated I did not fit into the definition of an injured worker and I cannot go back to work.
54. I do not believe that I should be penalised in this case given the events that have shaped my life and were completely out of my control and I kept my former employer up to date and they preferred to ignore it and denied me fairness.
55. I only knew of the proper outcome from the USU on 26 March 2020 about my workers compensation claim and I was advised up until that point that I could be reinstated as an injured worker and that was not the case when they informed me I do not fall into the category of an injured worker and refused to help me further because I sort my own legal advice and I did not have a psychological inquiry. That is plainly unfair and unjust.
56. I believe that my case should be reviewed by the Commission as an application can be made outside the 21-day period and the Commission accepts the application as I am of the view that I was unlawfully terminated because of my injury and my temporary absence from work.
57. My case is for unlawful termination as I was terminated because of my absence from work which was due to an injury and I was unwell.
58. My time off was not opposed by Council and Council should not have terminated my role as they knew in writing I sought 12 weeks of further leave from the 2 August 2019 and never opposed it.
59. I believe I have presented valid reasons for the delay in lodging the Application which relates to an administrative error from the USU where I have grounds on unlawful termination as I was temporary absent from work due to injury.
60. I believe I have given a proper explanation of the entire period of the delay and that exceptional circumstances exist, and I hope the Application can proceed.
61. The Respondent is attempting to deny me access to a fair hearing and that is not the intent of the legislation.”
Representative error and unions
[19] In the context of unfair dismissal matters, there have been two recent decisions where applicants have been granted extensions of time because of the representative error of their unions. Both cases provide useful guidance about the authorities in this area.
[20] In Boakes v St Johns Community Care Limited 67 her Honour Deputy President Asbury held that:
[29] The reason for the delay advanced on behalf of Mr Boakes is representative error. Generally parties who place matters in the hands of a representative such as a lawyer, paid agent or union, and take all reasonable steps to ensure that instructions are provided sufficient to enable an application to be filed within a required time have a legitimate expectation that their instructions will be carried out, and a failure on the part of such a representative to do so is an exceptional circumstance in the sense that it is unexpected. Further, an Applicant who engages a representative also has a legitimate expectation that advice they are given in relation to procedural matters is correct.
[30] In Robinson v Interstate Transport Pty Ltd,68 a Full Bench of the Commission held that depending on the particular circumstances of a case, representative error may constitute exceptional circumstances and be a sufficient reason to extend time. The Full Bench stated that the conduct of the Applicant is a central consideration to deciding whether representative error provides an acceptable explanation for delay. In particular the Full Bench distinguished the case of an applicant who leaves the matter in the hands of a representative and takes no steps to inquire as to the status of their claim, from one where an applicant gives clear instructions to the representative to lodge a claim and the representative fails to carry out those instructions, through no fault of the applicant.
[31] In the latter case an applicant is blameless and it is more likely that representative error will be given significant weight in consideration of whether there are exceptional circumstances justifying a further period to make an application.69 Representative error can include inactivity or carelessness of an applicant’s representative.70 It is also apparent from the case law concerning representative error as an explanation for delay that it is necessary to balance the nature of the error and to consider the contribution that the applicant’s conduct made to the error or the delay.
[32] In my view a dismissed employee who seeks support and assistance from a union has every right to expect that the case will be handled with expertise and professionalism, and that necessary steps to prosecute the case will be taken in a timely manner. A union member has as much a legitimate expectation of expertise and professionalism on the part of a union as does the client of a solicitor. It would be unusual or abnormal for a representative who is an officer or employee of a union to act negligently by failing to file an application following a clear instruction to that effect from a client. To find otherwise would allow dismissed employees who instruct a solicitor to rely to a greater degree on representative error as an explanation for filing an application late, to the detriment of dismissed employees who use the services of a union to obtain representation.
[33] Any professional representative, particularly of a kind recognised in the Act, and a Union which receives fees from members for services, engaged to represent a dismissed employee, would be expected to manage the in-time filing of an unfair dismissal application. A failure on the part of any such representative may constitute an acceptable explanation for delay in making an application for the purposes of establishing that there are exceptional circumstances justifying the grant of a further period in which to make the application.
[34] In the present case, I am satisfied that Mr Boakes took reasonable steps to dispute his dismissal and gave instruction well within the 21 day timeframe for the AWU to file an unfair dismissal application on his behalf. Further, Mr Boakes communicated with the Union within the 21 day timeframe, on 12 March and on 19 March 2020, seeking an update on his unfair dismissal application. Mr Boakes sought a further update on 26 March 2020 when no response was received from Mr Grimwade to the correspondence sent on 19 March 2020. This is despite the fact that, in my view, it is not necessary that Mr Boakes communicate with the Union to ensure that the application was filed within time once he had given the instruction in a timely manner.
[35] I am also satisfied that the reason for the delay was wholly attributable to representative error on the part of Mr Grimwade. While I accept that Mr Grimwade had reasonably believed the application had been progressed through the AWU’s ARMS system, the response of Mr Grimwade to Mr Boakes’ correspondence seeking updates to the progress of his application leaves much to be desired. Mr Grimwade advised Mr Boakes on 12 March 2020 that the application was with the AWU’s advocates team in Brisbane, and that he should hear from them probably late next week. Mr Boakes sent a further enquiry to Mr Grimwade on 19 March 2020 asking that a further update be provided as soon as possible. From the email correspondence tendered with Mr Grimwade’s statement it does not appear that Mr Grimwade responded to Mr Boakes, until Mr Boakes contacted him again on 26 March 2020.
[36] By this stage the application was out of time. If Mr Grimwade had made more reasonable enquiries on 19 March 2020 when Mr Boakes requested an update on his application be provided as soon as possible, the error in filing the application brief through the ARMS system would have been identified and the application filed within the 21 day timeframe. Regrettably, this has now caused further delay to Mr Boakes having his unfair dismissal application dealt with.
[37] This is a clear case of representative error and I am satisfied that this error is an acceptable explanation for the delay. This weighs in favour of Mr Boakes being granted a further period to make the application.
[21] I respectfully adopt her Honour’s reasoning.
[22] In Walton v DS Opco Pty Ltd 71, his Honour Deputy President Saunders held that:
[10] The Applicant contends that the delay in filing her unfair dismissal application was due to representative error on the part of her union, the Shop, Distributive and Allied Employees’ Association (SDA).
[11] A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application for an extension of time. 6 In Clark v Ringwood Private Hospital,7 a Full Bench decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
• 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.
• 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.
• 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.
• 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 accepted.
[12] It is not necessary for an applicant to demonstrate that they were “blameless” for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion. 8 However, as the Full Bench explained in Long v Keolis Downer,9 “an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by”.
[13] The relevant sequence of events leading up to and following the Applicant’s dismissal was as follows. On 30 March 2020, Mr Stephen Svoboda, the Store Manager of the Harris Scarfe Devonport store where the Applicant worked, called the Applicant into the office. Mr Svoboda then called Mr Ben Morrow, Regional Manager for Harris Scarfe, who told the Applicant that her job was no longer required and she was being made redundant. Mr Morrow also informed the Applicant that her redundancy would take effect from the close of business on the following day, 31 March 2020, but she did not have to work on that day. This was the first time that the Applicant was told that her position was redundant. No prior consultation had taken place with the Applicant.
[14] The Applicant is, and was at all relevant times, a member of the SDA. The Applicant left the store after her discussion with Mr Morrow and Mr Svoboda on 30 March 2020 and immediately called her SDA representative, Mr Andrew Coyle. The Applicant told Mr Coyle to do everything he needed to do to get the decision to terminate her on the grounds of redundancy reversed and if they could not get the decision changed then to bring an unfair dismissal application on her behalf.
[15] In the period between 30 March 2020 and the filing of her unfair dismissal application on 14 May 2020, the Applicant spoke to Mr Coyle quite a few times to find out what was happening. In one of those discussions Mr Coyle told the Applicant that they were preparing her unfair dismissal application. At no time during that period did anyone from the SDA tell the Applicant that the SDA had made a decision, or was considering making a decision, to delay the filing of the Applicant’s unfair dismissal application until after the sale of Harris Scarfe’s business had completed, even though that would result in the application being filed outside the 21 day time limit. The Applicant was not even aware of the existence of the 21 day time limit.
[16] At some time after her unfair dismissal application was filed on 14 May 2020, Mr Coyle informed the Applicant that an application had been filed on her behalf, but it was not until the Applicant’s discussion with Mr Paul Griffin, Branch Secretary of the Tasmanian Branch of the SDA, on 28 May 2020 that the Applicant was told that her application had been filed out of time. During that conversation, Mr Griffin told the Applicant that the anticipated sale of Harris Scarfe’s business was due to occur on the last day of the 21 day period but the sale was delayed.
[17] Following the termination of the Applicant’s , Mr Griffin spoke to the General Manager of Harris Scarfe to raise his concerns about the redundancy of the Applicant. Mr Griffin says his concerns were dismissed by the General Manager.
[18] In late March and early April 2020, representatives of the SDA, including Mr Griffin, had discussions with Mr Vaughan Strawbridge, a partner of Deloitte Financial Advisory Pty Ltd, who was one of the receivers and managers (Receivers) appointed to the Respondent on 11 December 2019. Mr Strawbridge’s appointment as a Receiver followed the appointment of voluntary administrators on the same day. In their discussions with Mr Strawbridge, the SDA asked questions and raised concerns about the redundancy of the Applicant and about 43 other employees of the Respondent. Mr Gerard Dwyer, National Secretary of the SDA, participated in such discussions on 3 and 8 April 2020. Mr Strawbridge explained to the SDA, among other things, that in order to secure the sale of the Respondent as a going concern, and to preserve the of the majority of the Respondent’s about 1,200 employees, the Receivers needed to finalise a sale on terms acceptable to the buyer urgently, and ask creditors to approve a deed of company arrangement. Completing redundancies before the second creditors’ meeting was essential to securing the buyer’s agreement about the sale. Mr Strawbridge also answered the questions asked of him by Mr Griffin and other SDA representatives during these discussions. At no time did Mr Griffin or anyone else from the SDA inform Mr Strawbridge that the SDA was going to file an unfair dismissal claim on behalf of the Applicant, or any other person, against the Respondent. I accept Mr Strawbridge’s evidence that he understood, based on his discussions with the SDA on 8 April 2020, that the SDA did not intend to press any claims on behalf of those members who had been made redundant; the Receivers were not on notice that the redundancies would subsequently be the subject of unfair dismissal or any other applications before the Fair Work Commission.
[19] Following the second meeting of creditors of the Respondent held on 9 April 2020, at which the terms of the deed of company arrangement relating to the Respondent and other entities were approved by creditors, the shares in the Respondent were acquired by a subsidiary of Spotlight Group Holdings Pty Ltd pursuant to a share sale agreement. As a result, ownership of the Respondent transferred to the Spotlight group of companies and the Receivers retired on 29 April 2020.
[20] Although the completion of the sale did not take place until 29 April 2020, I accept Mr Griffin’s evidence that he was optimistic the sale would be completed within the 21 day period (i.e. by 21 April 2020) and, had that been the case, then the SDA would have been able to lodge the Applicant’s unfair dismissal application within the 21 day period. However, on 17 April 2020, Mr Strawbridge informed the SDA that “final agreement has been difficult to lock down. We are however, hopeful this will occur next week which we are pushing hard for …” Accordingly, the SDA was on notice by 17 April 2020 that it was unlikely to be able to execute its plan to file the Applicant’s unfair dismissal application after completion of the sale but within the 21 day time period.
[21] Mr Griffin and the SDA had a clear conflict of interest. On the one hand they wanted, and were obliged (insofar as it concerned their members), to act in the best interests of the remaining 1,200 employees of the Respondent by doing all they could to assist, or not risk, the completion of the sale of the business and thereby secure the ongoing of those workers. As Mr Griffin explained in his statutory declaration:
“In circumstances where it was being represented to the SDA that any challenge to the decisions made on the part of the Receiver to terminate particular individuals including Ms Walton might jeopardise a sale process that would ensure continuing for 1,200 retail workers, the decision was made by the SDA to defer further claim on behalf of those affected employees until the sale process was completed and the of those retail workers was secured. This was a decision made by the National Executive of the SDA; it was not a decision in relation to which Ms Walton was consulted or acceded to by Ms Walton.”
[22] On the other hand Mr Griffin and the SDA had a duty to act in the best interests of the Applicant, including by lodging her unfair dismissal application within 21 days of her dismissal. The obvious conflict of interest could have been managed in a number of ways. For example, when it was becoming apparent towards the end of the 21 day period that completion of the sale would not, or was unlikely to, take place prior to the end of the 21 day time limit, the SDA could have arranged for the Applicant to be given independent advice and representation in relation to her unfair dismissal claim. No doubt any such independent advisor would have recommended that the Applicant lodge her claim within the 21 day period. Alternatively, at the very least, the SDA could have explained all the circumstances to the Applicant and allowed her to make an informed decision as to whether to lodge her application within the 21 day period. Rather than take any step to deal with the obvious conflict of interest, Mr Griffin did nothing, and worse still, did not inform the Applicant that the SDA had made a deliberate decision, contrary to her interests, not to lodge the application within the 21 day period. This was a clear representative error.
[23] The sale completed on 29 April 2020, but it still took the SDA a further two weeks to lodge the application on 14 May 2020. Mr Griffin gave the following explanation for this delay in his statutory declaration:
“There was additional delay in the SDA filing Ms Walton’s application after the sale had been completed because of COVID19 isolation protocols affecting the staffing of the SDA Tasmanian Branch’s office which impacted upon the capacity of the SDA office to prepare and finalise the relevant application for filing. The COVID19 isolation directives have impacted at both National Office (based in Victoria) and State Branch levels to cause delays in processing claims and applications which would not ordinarily have occurred.”
[24] I do not accept this to be a reasonable excuse by the SDA for the further delay in filing the application after 29 April 2020. The SDA should have had the application ready to lodge in the Commission within the 21 day period following the dismissal on 31 March 2020. It is not a difficult or overly time consuming application to prepare. Lodging the application itself is as simple as sending an email or making a telephone call. The delay from 29 April 2020 until 14 May 2020 is a further representative error by the SDA.
[25] The Respondent contends that this is not a case of representative error. Instead, the Respondent submits that the SDA made a deliberate decision not to file the application within the 21 day time period. The Respondent also contends that there has been no acceptable explanation given for the further delay from 29 April 2020 until 14 May 2020.
[26] I do not accept either of these contentions made by the Respondent. I accept that the usual case of representative error arises where a lawyer or union forgets to file an application in time or makes a mistake in calculating the 21 day period. However, they are not the only circumstances in which a representative may make an error. As I have sought to explain above, a representative who fails to address a clear conflict of interest and thereby fails their duty to act in the best interests of their client or member acts in error. More importantly, however, the focus under s 394(3) is on the conduct of the Applicant. In the present case, the Applicant acted immediately on being informed of her redundancy. She spoke to Mr Coyle on 30 March 2020 and gave him clear instructions to do everything he needed to do to get the decision to terminate her on the grounds of redundancy reversed and if they could not get the decision changed then to bring an unfair dismissal application on her behalf. Further, this is not a case where the Applicant gave instructions to her representative to file a claim and then sat on her hands for an extended period while the prescribed time for filing the application passed by. The Applicant engaged in numerous discussions with Mr Coyle to find out what was happening with her case. At no time prior to 28 May 2020 was the Applicant told that the SDA had made, or was considering making, a decision to delay the filing of her application outside the 21 day time period.
[27] As to the delay in the period from completion of the sale on 29 April 2020 until the filing of the application on 14 May 2020, the SDA does not have an acceptable explanation for the delay. However, the Applicant does have an acceptable explanation for this delay, namely, the error on the part of the SDA in failing to lodge the application during this period.
[28] In all the circumstances, I am satisfied that the whole of the delay in filing the application (21 April to 14 May 2020) is to be attributed to the errors made by the Applicant’s representative. No part of the delay was occasioned by the conduct of the Applicant; she is blameless for the delay.
[29] For the reasons stated I consider the Applicant’s explanation for the delay in lodging her application to be an acceptable and reasonable explanation for the whole of the delay. This weighs in favour of a conclusion that there are exceptional circumstances.
[23] I respectfully adopt his Honour’s reasoning.
Consideration of s.774 Criteria
Section 774(2)(a) – The reason for the delay
[24] There were 147 days between when the termination of the Applicant’s took effect and when a valid Application was filed with the Commission. Therefore, it was 126 days late.
[25] Members of the Commission are ‘bound to act “judicially” in the sense that they are obliged to respect and apply traditional notions of procedural fairness and impartiality.’ 72 However, the Commission must also perform its functions and exercise its powers in a manner that:
a) is fair and just;
b) is quick, informal and avoids unnecessary technicalities. 73
[26] In his application, the Applicant gave as the reason for the delay “because I sought the advice from my work union the USU.” He also contends that “I had no knowledge of the legal framework as I am not an lawyer…”
[27] In the present matter the evidence demonstrates that:
a) The Applicant’s was terminated on 31 October 2019.
b) On that day:
i. the solicitor that the Applicant was dealing with in relation to his workers’ compensation claim advised him to contact his USU contact person “to discuss [his] prospects in relation to making a claim for unfair dismissal.”
ii. the First USU Contact advised the Applicant she was on leave until 18 November 2019. She offered to set a meeting with her replacement “next week”.
c) On 1 November 2019, the Applicant received an email introduction to the another USU contact (Second USU Contact).
d) On 5 November 2019, the Second USU Contact invited the Applicant to contact her.
e) On 11 November 2019, the Applicant wrote to the Second USU Contact and asked if “there has been any further news on the unfair dismissal”.
f) On 21 November 2019, the 21 day time limit for the filing of the present application or unfair dismissal application passed.
[28] What is apparent is that the factual circumstances in this matter can be distinguished from those in both Boakes and Walton. In both of those matters, the Applicants gave clear instructions to file unfair dismissal claims to contest the termination of their and pressed the matter with their unions by following up with them.
[29] That is not what has occurred in this matter. As of 31 October 2019, the Applicant was on notice about the potential for an unfair dismissal claim. However, there is no evidence that the Applicant instructed the USU to file an unfair dismissal claim. There is no evidence that the Applicant instructed the USU to file an unlawful termination claim. There was one email, on 11 November 2019, that might be described as a follow up, but nothing else in the 21 days after dismissal. It is just not good enough. The Applicant did not take all reasonable steps to provide instructions to the USU or to follow up with it.
[30] My finding on this point will likely be met by the Applicant responding by saying (as he has contended in his submissions), that he knew nothing about unfair dismissal laws or unlawful termination claims, that he is not a lawyer, not an lawyer and that he was relying on experts. All of those contentions are a submission about ignorance of the law.
[31] Ignorance about unfair dismissal laws or unlawful termination claims or about the timeframe for lodgement is not an exceptional circumstance. 74
[32] While accepting that the Applicant is not an lawyer, he is an intelligent, educated and articulate individual. At some point the Applicant informed himself about unlawful termination claims. He says,
“…upon doing my own research and seeking outside advice I discovered that the circumstances of my termination did meet the criteria of Unlawful Termination…”
[33] The Applicant provides no explanation about why he could not have done the same research in the period between the termination of his on 31 October 2019 and the expiration of the 21 days on 21 November 2019. Had he done so he could have instructed the USU to make a claim. He could have pestered them with follow up emails and calls. Had he done this, and the USU failed to lodge a claim, likely there would have been exceptional circumstances occasioned by representative error (as in both Boakes and Walton). However, in this matter there was a lack of activity and diligence on behalf of the Applicant. He is not entitled to say, “I trusted the USU to look out for my interests”. That is not enough to establish representative error.
[34] Therefore, this factor weighs against granting the Applicant a further period to make his application.
Section 774(2)(b) – Any action taken by the employee to dispute the termination
[35] I deal with the Applicant’s lack of activity and diligence above. Other than to file this application late, the Applicant took very little action to dispute the termination.
[36] Therefore, this factor weighs against granting the Applicant a further period to make his application.
Section 774(2)(c) – Prejudice to the employer (including prejudice caused by the delay)
[37] Other than the usual prejudice associated with delay, the Respondent does not assert any exceptional prejudice.
[38] Therefore, this factor is a neutral factor in deciding whether to grant the Applicant a further period to make his application.
Section 774(2)(d) – The merits of the application
[39] In the matter of Kornicki v Telstra-Network Technology Group 75, the 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 the context of an unfair dismissal matter. In that case the Commission said:
“The merits of the substantive application. If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgment. 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.” 76
[40] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
[41] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings, I do not, in this decision, embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
[42] The substantive factual contest between the Applicant and the Respondent is what was the substantial and operative reason for the termination of . The Respondent contends it was an innocent reason associated with the Applicant’s unauthorised absences from work and failure to attend work as directed. The Applicant alleges unlawful reasons associated with temporary absence from work, race and religion (or purported religion). This is not a factual dispute that can be resolved at a jurisdictional hearing. However, having regard to the materials presently filed in the matter, the Applicant’s claims are not strong.
[43] But, for present purposes, the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.
[44] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.
Section 774(2)(e) - Fairness as between the person and other persons in a like position
[45] I have already distinguished the Applicant’s case from those in in both Boakes and Walton.
[46] Therefore, this factor weighs against granting the Applicant a further period to make his application.
Conclusion
[47] When the s.774(2) factors are considered in totality, I am not satisfied that they demonstrate circumstances that are out of the ordinary course, or unusual, or special, or uncommon. Consequently, they are not exceptional circumstances.
[48] For the reasons set out above, on balance, the Commission is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).
[49] An Order [PR719373] to this effect will be issued with this Decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR719372>
1 Nulty v Blue Star Group, 2011, 203 IR 1 at [13].
2 Wemyss v Mission Australia Services[2010] FWA 1798.
3 [2019] FWCFB 2384.
4 Lombardo v Commonwealth of Australia as represented by the Department of Education, and Workplace Relations[2014] FWCFB 2288 at [21].
5 Halls v KR & MA McCardle and Ors [2014] FCCA 316.
6 Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 at [13]; see also Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).
7 Please refer to Attachment 1, ‘Dr Giblin records)’
8 Please refer to Attachment 2 ‘Unauthorised Absence from work 3_10_2019’.
9 Please refer to Attachment 3, ‘Chronology of Email from Romic to Council’, for a chronology of exchanges.
10 Please refer to Attachment 3, ‘Chronology of Email from Romic to Council’, for a chronology of exchanges.
11 Please refer to Attachment 4 titled ‘Direction to Attend Work 9_10_2019’.
12 Please refer to Attachment 5 titled Worker’s Injury Claim Form and Attachment 6 titled Certificate of Capacity Certificate of Fitness for Work 10_10_2019.
13 Please refer to Attachment 3 titled Chronology of Email from Romic to Council.
14 Please refer to Attachment 7 titled Romic Response to Council 14_10_2019.
15 Please refer to Attachment 8 titled Section 78 Notice.
16 Please refer to Attachment 9 titled Direction to Attend Work 17_10_2019.
17 Please refer to Attachment 10 titled Notice of Meeting_Show Cause 21_10_2019.
18 Please Refer to Attachment 11 ‘Show Cause Letter to Attend Work 22_10_19’.
19 Please Refer to Attachment 12 ‘Letter Termination of 31_10_19’.
20 Please refer to Attachment 13 titled USU advice 17_12_2019.
21 Please refer to Attachment 14 titled Complaint to USU by Romic 3_3_20.
22 Please refer to Attachment 15 dated USU response 6_3_20.
23 Please refer to Attachment 16 titled Carroll and O'Dea Letter (1)_ 13_3_20 and Attachment 17 titled Carroll and O'Dea Letter (2) _ 17_3_20.
24 Please refer to Attachment 18 titled USU advice 26_3_20).
25 Acts Interpretation Act 1901 (Cth), section 36(1).
26 Witness Statement of Momcilo Romic, at [48].
27 Witness Statement of Momcilo Romic, at [49].
28 Witness Statement of Momcilo Romic, at [50].
29 Witness Statement of Momcilo Romic, at [52].
30 Witness Statement of Momcilo Romic, at [54].
31 Witness Statement of Momcilo Romic, at [55].
32 Witness Statement of Momcilo Romic, at [61].
33 Witness Statement of Momcilo Romic, at [65].
34 Witness Statement of Momcilo Romic, at [66].
35 Witness Statement of Momcilo Romic, at [71].
36 Witness Statement of Momcilo Romic, at [80].
37 See also: Damien Matcham v South Coast Medical Service Aboriginal Corporation[2015] FWC 832, at [9].
38 Lombardo v Commonwealth of Australia as represented by the Department of Education, and Workplace Relations[2014] FWCFB 2288, at [21]. See also: Qantas Airways Limited v McRae[2017] FWCFB 4033.
39 Daisy Younan v Inner West Council[2019] FWC 4777, at [34].
40 [2010] FWA 6989; decision in the first instance.
41 [1982] 45 ALR 411.
42 [2011] FWAFB 975.
43 [2011] FWAFB 975, at [13]. See also: Damien Matcham v South Coast Medical Service Aboriginal Corporation[2015] FWC 832, at [10].
44 [2011] FWAFB 975, at [14]; see also Rose v BMD Constructions Pty Ltd[2011] FWA 673, at [11].
45 Damien Matcham v South Coast Medical Service Aboriginal Corporation[2015] FWC 832, at [11] (per Commissioner Cargill). See also: Daisy Younan v Inner West Council[2019] FWC 4777, at [35].
46 [2012] FWA 3167.
47 [2012] FWA 3167, at [23].
48 [2011] FWAFB 975, at [14]. See also, Vanessa Jeong v Hands On Computer Training International Pty Ltd (In Liquidation) T/A Australian Institute of Commerce and Technology[2019] FWC 1079, at [16].
49 Alison Graham v Tronics Pty Ltd [2014] FWC 803, at [18].
50 [2012] FWA 3167, at [35]..
51 [2011] FWAFB 975, at [14].
52 [2012] FWA 3167, at [24] – [35].
53 [2018] FWCFB 4109, 279 IR 361, [2019] ALMD 413, at [52].
54 [2012] FWA 3167, at [35].
55 For example, Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403.
56 Witness Statement of Momcilo Romic, at [52].
57 Witness Statement of Momcilo Romic, at [48].
58 Witness Statement of Momcilo Romic, at [55].
59 Witness Statement of Momcilo Romic, at [48] to [54].
60 McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112.
61 Napier v Thomas Foods International (Murray Bridge Division)[2018] FWC 275, at [31] to [32]. See also: Daisy Younan v Inner West Council[2019] FWC 4777, at [49].
62 Witness Statement of Momcilo Romic, Attachment 12.
63 Witness Statement of Momcilo Romic, at [71].
64 Daisy Younan v Inner West Council[2019] FWC 4777, at [55].
65 For example, Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403.
66 Kathleen Bowers v Tony Port; Vivid Home Builders Pty Ltd[2018] FWC 4306, at [44]. See also, Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654, at [13].
67 [2020] FWC 2837
68 [2011] FWAFB 2728.
69 Ibid at [25].
70 Clark v Ringwood Private Hospital (1997) 74 IR 413.
71 [2020] FWC 3031
72 Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78, 83.
73 Section 577 of the FW Act.
74 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at para. 39.
75 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
76 Ibid.
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