Mr Brendan Foster v Honeywell T/A Honeywell Australia
[2018] FWC 1084
•9 MARCH 2018
| [2018] FWC 1084 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Brendan Foster
v
Honeywell T/A Honeywell Australia
(C2018/163)
COMMISSIONER HUNT | BRISBANE, 9 MARCH 2018 |
Application to deal with contraventions involving dismissal – extension of time – representative error – applicant misinformed by his representative about lodgement – exceptional circumstances – extension of time granted.
Introduction and Background
[1] Mr Brendan Foster was employed by Honeywell T/A Honeywell Australia from May 2012 until his employment was terminated on 12 December 2017. Mr Foster has made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed in contravention of the general protection provisions of the Act. Mr Foster claims he was dismissed due to exercise of a workplace right, specifically, while he was on leave under a WorkCover claim.
[2] Mr Foster made his application on 10 January 2018.
[3] Section 366 of the Act states:
‘366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.’
[4] For Mr Foster to have made his application within the statutory time limit of 21 days after the dismissal took effect, the application needed to have been filed by 2 January 2018. The application has been made 8 days out of time.
[5] Mr Foster seeks an extension of time within which to make his application. The basis of his claim for an extension of time is that his representative, Employee Assist, advised him on 22 December 2017 that his application will be lodged. On 2 January 2018, Employee Assist advised him that the application had been lodged. On 5 January 2018, Mr Foster discovered that the application had not been lodged. Mr Foster then lodged the application on his own behalf on 10 January 2018.
No requirement for a hearing
[6] Both parties filed material for the Commission’s consideration. Mr Foster filed a witness statement, and the parties were asked if any of them required the matter to be determined at a hearing, or whether the application for an extension of time could be determined ‘on the papers’. Honeywell communicated that it was content to have the matter determined ‘on the papers’.
[7] Mr Foster requested a hearing, and in response, Honeywell communicated that it did not consider a hearing to be necessary or appropriate for the following reasons:
(a) Honeywell had not filed any evidence;
(b) It does not wish to cross-examine Mr Foster; and
(c) Both parties have had ample time and opportunity to provide their submissions.
[8] Having regard to the information before me, I determined not to convene a hearing, as there were no contested facts.
Mr Foster’s evidence
[9] In the Form F8 making application to the Commission, Mr Foster stated the following relevant to why the application was not made within the 21 day statutory time limit:
‘I have applied to Employee Assist to represent me and I have attached email correspondence – when I queried the status of my application on 2/1/18 – I was informed that my application had been made already. Later in the week I was contacted to say that my application to Fair Work had not been made and I had to follow it up myself.
Unfortunately I now have a delay and need to make the application myself, as my complaint involves Health and Safety matters and adverse action to me for raising these matters I need the Fair Work Commission to consider this application to intervene please.’
[10] Mr Foster’s witness statement includes the following evidence:
(a) Mr Foster was in shock from being dismissed as he had never been dismissed from employment before;
(b) On 20 December 2017, he was informed by ‘Legal Aid’ that Honeywell had breached numerous sections of the Act;
(c) Mr Foster approached the employment agents, ‘Employee Assist’ on 22 December 2017 (although on production of Mr Foster’s email correspondence with Ms Jessica Arkles, Industrial Advocate of Employee Assist, contact was made on 21 December 2017);
(d) Mr Foster emailed Ms Arkles on 22 December 2017, and she replied the same day as follows:
‘Hi Brendan,
Thank you for your response. I will make your application to the Fair Work Commission.
I will be in touch to let you know when Fair Work has scheduled a hearing date for you. This can take approximately 4 weeks.
Then, once the Notice of Listing (hearing date) is sent out, the employer must submit an Employer’s Response. We will discuss this with you once we receive it, and it is from this that we formulate our argument for conciliation.
In the mean time, there is nothing you need to do. Just keep me informed if they try to make contact with you, or there are any further developments.
Kind Regards,
Jessica Arkles
Industrial Advocate’
(e) On 2 January 2018, Mr Foster emailed Ms Arkles as follows:
‘Hi Jessica,
I believe that today is 21 days from my termination and so is the last chance for me to lodge the Unfair Dismissal with Fair Work can you please confirm that you have lodged it otherwise I do have a log in for Fair Work and I can do this today, can you please let me know
Thanks,
Regards,
Brendan’
(f) Ms Arkles responded just over an hour later:
‘Hi Brendan,
Your application has been made already.
Kind regards,
Jessica’
(g) Around this period of time, Mr Foster purchased a new pre-paid SIM card for his phone and had not set up voice mail. He supplied the new telephone number to Employee Assist, but expected communication, if there was to be any, to be by email;
(h) On 5 January 2018, at 3.59pm, Mr Amnon Kelemen, Principal of Employee Assist emailed Mr Foster, as follows:
‘Hi Brendan,
I have left you a number of messages to contact me. To date you have not returned any calls.
Please contact me ASAP on [redacted].
Amnon’
(i) Mr Foster replied to Mr Kelemen’s email the same date to advise that he had not yet set up his voice mail and was avoiding unknown numbers due to financial hardship. He advised he would return Mr Kelemen’s call as soon as possible thereafter and when he did so, Mr Kelemen advised Mr Foster that the application had not, in fact, been made on his behalf. Mr Foster expressed his disappointment, especially in light of having been informed by Ms Arkles on 2 January 2018 that the application had been made.
(j) Over the weekend, on 6 and 7 January 2018, Mr Foster set up his voice mail on his phone. Voice mail messages had been left by Mr Kelemen, but not until after 2 January 2018, outside of the 21 day statutory time limit;
(k) Mr Foster became depressed that he considered he had lost his opportunity to bring a complaint against Honeywell. On 8 January 2018, Mr Kelemen emailed Mr Foster as follows:
‘Brendan,
As discussed and agreed last week – this application was not filed by employee assist.
Best of luck with your future endeavours.
Amnon’
(l) Mr Foster responded to Mr Kelemen at 8.04am on 10 January 2018 as follows:
‘Hi Amnon,
I have reviewed your voicemail messages and you did not try to make contact with me until Wednesday 3rd January despite my emails to your employee Jessica unfortunately after my 21 days
You were too late.
We do agree on one thing only and that is your services are no longer required
Regards,
Brendan Foster’
(m) Mr Foster said he then set about informing himself as to his alternatives, and discovered that he could apply to the Commission for an extension of time in which to file his application. He then collated his documentation and lodged the application ‘the next day’ on 10 January 2018.
Honeywell’s submissions
[11] In its Form F8A Response, Honeywell raised a jurisdictional objection to Mr Foster’s application, noting that it was lodged out of time. 1 Honeywell confirmed in its Outline of Argument that the lateness of the application did not cause the business any disadvantage or unfairness.2
[12] Honeywell drew attention to the email sent by Mr Foster to Ms Arkles on 2 January 2018, in which he says, “today is 21 days from my termination and so is the last chance for me to lodge the Unfair Dismissal with Fair Work”. Honeywell noted that the application lodged is in fact a General Protections application, rather than an Unfair Dismissal application.
[13] It was submitted that Mr Foster was aware by 5 January 2018 that his application had not been lodged and that there was still a delay until 10 January 2018 when the General Protections application was made. Honeywell argued that Mr Foster was obliged to immediately take steps to complete and file his application on the same date that he was notified that his application had not been made on his behalf by Employee Assist.
[14] Further, Honeywell submitted that Mr Foster has a ‘more detailed knowledge’ than most employees of Commission and General Protections jurisdiction, processes and time limitations. A previous General Protections application not involving dismissal was made by Mr Foster in respect of his employment with Honeywell, which he appealed. Honeywell noted that he was unrepresented in both proceedings, and referred also to Mr Foster’s comments to Employee Assist. Honeywell submitted that this demonstrated that Mr Foster presumably had some experience and knowledge of the Commission and the time frames in which to bring applications.
Applicable Case Law
The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd3where the Full Bench said:
‘[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.’
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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.’ [Endnotes not reproduced]
[15] For exceptional circumstances to arise as contemplated by s.366(2) of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.
[16] There are a number of relevant authorities for consideration, including those involving representational error, which could be said to account for the period up until 5 January 2018 when Mr Foster first discovered the application had not been made within time.
[17] In Graham Jones v Holcim Australia Pty Ltd4 (Jones) the relevant consideration included:
a) whether the representative could have taken other actions that would have ensured that the application was filed within time; and
b) whether the applicant was wholly without blame for the delay.
[18] In the matter of Michael Edwards v Tiger Airways Australia Pty Ltd T/A Tigerair5, an incorrect application was filed by Mr Edwards’ representative. When the error was detected, no steps were taken by the representative to expedite the filing of the correct application form. Bissett C said the following:
‘[80] I am satisfied that Mr Edwards had engaged representatives to provide him with the best advice available. He trusted them. Errors on their part should not be visited on Mr Edwards in circumstances where he took appropriate action within reasonable timeframes given his personal circumstances.’
[19] It was determined in that case that the representative error was the whole reason for the delay and amounted to exceptional circumstances. The Commissioner held that Mr Edwards did not contribute to the delay.
[20] The decision of Commissioner Lee in Phan v GJK Facility Services Pty Ltd T/A GJK Facility Services 6 to extend the time for making an application for an unfair dismissal remedy might also be considered. In that matter, the application had been filed 25 days later, wholly due to the fault of the union representing Mr Phan, where the applicant had given instructions within a week of his dismissal. The Commissioner allowed the extension because it was solely the union that had failed to act upon repeated instructions.
[21] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 7, a Full Bench of the Commission rejected the finding at first instance that that the decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers8 stood for a decision rule that, absent a credible explanation for the entirety of the delay there could be no finding of exceptional circumstances. The Full Bench reaffirmed the test for exceptional circumstances as follows:9
‘As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.’ (original emphasis)
Reason for the delay – s.366(2)(a)
[22] I accept Mr Foster’s evidence that he did not become aware that his representative had failed to file the application until his telephone conversation with Mr Kelemen on 5 January 2018. This was already three days after the final day on which his application could be lodged within time, on 2 January 2018, when Mr Foster followed up with Employee Assist’s consultant, Ms Jessica Arkles.
[23] Mr Foster acted promptly to seek the assistance of Employee Assist and there remained ample time for his chosen representatives to complete and lodge his application. As his evidence demonstrated, he was led to believe by Ms Arkles that the application would be made within time and that he would be next contacted by Employee Assist when a conciliation conference before the Commission’s Conciliator was listed, in approximately four weeks. He was advised that there was nothing he needed to do in the intervening period. It was reasonable for Mr Foster to rely on that assurance from Ms Arkles.
[24] Irrespective of that assurance, on his own initiative he followed up on 2 January 2018 to ensure that the application was made within time. He was once again informed by Ms Arkles, albeit incorrectly, that his application had been made. It was reasonable for Mr Foster to rely on this information.
[25] The pertinent issue therefore, is what caused the delay between 5 and 10 January 2018, once Mr Foster became aware that the application had not been lodged by Employee Assist.
[26] Mr Foster’s uncontested evidence at [10(m)] is that he did not become aware until 9 January 2018 that, although his application was outside of the statutory time limit, he could seek an extension. He set about preparing the application and filed it on 10 January 2018. I accept Mr Foster’s evidence that he did not become aware of the ability to seek an extension of time until 9 January 2018.
[27] I have had regard to the submissions of Honeywell that Mr Foster is an experienced applicant before the Commission. I note that the previous General Protections application referred to by Honeywell was a General Protections application not involving dismissal, made under s.372 of the Act, and without a statutory time limitation. At [10(e)], Mr Foster demonstrated a clear understanding that he knew the application must be filed within 21 days of the dismissal. It does not correlate that he knew that failing making an application within time, he had greater knowledge than other applicants that he could seek an extension of time and should have done so immediately on 5 January 2018.
[28] It is clear that Mr Foster was failed by his representative on 2 January 2018 when he was incorrectly advised that his application had been made. He was then not informed until 5 January 2018 that his application had not been made within time. Mr Keleman’s apathetic email of 8 January 2018 confirming the application had not been made within time did not come with supplementary advice that Mr Foster could seek an extension of time. In the absence of Honeywell seeking to cross-examine Mr Foster on this issue, I accept that Mr Foster did not know that he could seek an extension of time until 9 January 2018.
[29] The reason for the delay up to 9 January 2018 is accordingly explained as:
(a) representative error until 5 January 2018 where until this date, Mr Foster was blameless for the application not being made within time;
(b) Mr Foster’s ignorance of the ability to seek an extension and his disappointment between 5 January and 9 January 2018; and
(c) between 9 and 10 January 2018, Mr Foster preparing, completing and lodging the application form.
[30] Noting that the determination whether to grant an extension or not is a discretionary one, I consider that the reasons for the delay weigh in favour of granting an extension of time. Mr Foster was secure in the belief on 2 January 2018 that his application had been made within time. At no time did his representative inform him that despite the representative’s error, Mr Foster could seek an extension of time. The email to Mr Foster of 8 January 2018 would have been the appropriate opportunity to do so. Accordingly, the period of time to which Mr Foster could be said to be accountable for the delay was the period 9-10 January 2018. In all of the circumstances I have determined the reasons for the delay weigh in favour of exercising the discretion to grant the extension of time.
Any action taken by the person to dispute the dismissal – s.366(2)(b)
[31] Mr Foster took relevant and appropriate action well within the time limit to dispute the dismissal by instructing his representative to file an application. I accept that he incorrectly used the statement ‘unfair dismissal application’ in a communication; however he was intent on bringing a general protections application, and did so. Even if Mr Foster was considering making an unfair dismissal application instead of a general protections application initially, it remains the case that from an early stage after his dismissal, Mr Foster was taking action to dispute his dismissal. This consideration weighs in favour of whether to exercise the discretion to grant the extension of time.
Prejudice to the employer – s.366(2)(c)
[32] Honeywell noted on its Outline of Argument that no prejudice would be caused to its business by the late application. The delay of eight days will not cause any prejudice to the employer other than its costs, if any, relating to its objection to the extension of time application. This is a neutral factor when considering whether to exercise the discretion to grant an extension.
Merits of the application – s.366(2)(d)
[33] In his application form, Mr Foster cited the reasons given to him by Honeywell for his dismissal as failure to follow a lawful and reasonable instruction, and an inability to fulfil the inherent requirements of his role.
[34] In the matter of Kornicki v Telstra-Network Technology Group10 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:11
‘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.’
[35] After considering the material filed by the parties in relation to the substantive application, it is clear that there are some factual disputes between the parties and it is not apparent that the application is without merit or that merit is anything other than a neutral consideration.
Fairness as between the person and other persons in a like position – s.366(2)(e)
[36] There were no submissions from the parties on whether there were persons in a like position. This is a neutral criterion.
Conclusion
[37] I have considered each of the criteria set out in s.366(2) of the Act. I am satisfied that there are exceptional circumstances as considered in the authority in Nulty for me to exercise my discretion to extend time. In particular, I am satisfied that the exceptional circumstances were caused by the failure of the representative to properly inform Mr Foster that his application had not in fact been lodged, and in fact, misinforming him that it had been lodged. This error was compounded by the delay on the part of the representative, Mr Kelemen to accurately inform Mr Foster of the state of his application, and by Mr Kelemen’s failure to inform Mr Foster of his alternatives, namely, filing the application himself and seeking an extension of time. Had it not been for these extenuating factors, the application would have been filed within time, or within a few days of the 21 day time limit.
[38] The failures of Employee Assist, Mr Kelemen and Ms Arkles should not be visited upon Mr Foster to deny him the opportunity to pursue the application.
[39] I have therefore determined to exercise my discretion to extend the time for Mr Foster to lodge his application to 10 January 2018.
COMMISSIONER
<PR600544>
1 Form F8A – Response to general protections application, Question 6.1.
2 Respondent’s Outline of argument: Extension of time, Question 1g.
3 [2011] FWAFB 975.
4 [2010] FWA 3129.
5 [2017] FWC 4021.
6 [2017] FWC 60.
7 [2018] FWCFB 901.
8 (2010) 197 IR 403 at [16]-[18].
9 [2018] FWCFB 901 at [38].
10 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
11 Ibid.
Printed by authority of the Commonwealth Government Printer
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