Mr Cade Barrett Gill v Glennelly Pty Ltd
[2022] FWC 1220
•19 MAY 2022
| [2022] FWC 1220 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Cade Barrett Gill
v
Glennelly Pty Ltd
(C2022/1598)
| DEPUTY PRESIDENT CROSS | SYDNEY, 19 MAY 2022 |
Application to deal with contraventions involving dismissal
On 7 March 2022, Mr Cade Gill (the Applicant) lodged an application (the Application) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant stated he had been employed by Glennelly Pty Ltd (the Respondent), and that he commenced his employment with the Respondent in 2007. In the Application, the Applicant claimed that he was notified of his dismissal on Friday 11 February 2022, and that the dismissal took effect on that date.
In response to the Application, the Respondent raised the jurisdictional objection that the Application was filed out of time. Pursuant to s.366(1) of the Act, general protections applications involving dismissal must be made within twenty-one (21) days after the dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. The Application has been lodged outside of the time prescribed, and three days after the last day on which such an application could have been made.
On 4 April 2022, directions were issued to program the manner in which the Application was to proceed (the Directions). The Directions required the filing of materials for the determination of whether the Applicant was out of time, and if so, whether he would be allowed an additional period within which to lodge the Application.
The parties complied with the Directions. In particular:
(a) On 1 April 2022, the Applicant filed an Outline of Submissions, and an
Affidavit of Patrick Staunton, the Applicant’s Solicitor;(b) On 3 May 2022, the Respondent filed an Outline of Submissions, and an Affidavit of Ms Petronella Speerstra, Director/Secretary of the Respondent; and
(c) On 11 May 2022, the Applicant filed a Response to the Submissions of the Respondent and a Supplementary Affidavit of Mr Staunton.
The matter was heard by via videoconference on 16 May 2022. Only Mr Staunton was required for cross-examination, and he was only asked one question. Each party relied on their submissions filed in compliance with the Directions, and supplemented their written submissions with further oral submissions.
Relevant Facts
The relevant facts of the matter, as disclosed by the materials filed and the evidence
adduced at the hearing, are as follows:
(a)In 2007 the Applicant commenced employment with the Respondent. He worked as a powder-coater.
(b)From early 2022, issues arose regarding the Applicant wearing a face mask at work. The Applicant provided a letter from his doctor dated the 18th of January 2022, but the Respondent considered the letter was not a formal exemption to wear a face mask
(c)Ms Speerstra stood the Applicant down on 25 January 2022, on full pay. The Applicant’s employment was terminated on 11 February 2022, due to serious misconduct, being refusing to wear a mask, refusing to leave the office when unmasked, and refusing to follow lawful and reasonable instructions as set out by QLD Health in Public Health Face Mask Requirements Direction (No.4) effective 01.00am 2 January 2022.
(d)The Respondent paid the Applicant four weeks pay in lieu of notice.
(e)On 14 February 2022, the Applicant had an initial consultation with another Solicitor from Mr Staunton’s office regarding his termination letter. At the conclusion of that conference, Mr Staunton’s office was retained to assist the Applicant with the Application.
(f)On 18 February 2022, Mr Staunton initially met with the Applicant regarding the Application. He further met with the Applicant on 24 February 2022, 2 March 2022, 4 March 2022 and 7 March 2022.
(g)During those conferences, Mr Staunton mistakenly advised the Applicant that the filing date of the Application would fall on a weekend being 5 March 2022, and as that would fall on a weekend, the filing date would fall to the next business day being 7 March 2021. Mr Staunton placed the matter in his calendar for filing on 7 March 2022, and made arrangements for the Application to be lodged within that timeframe.
(h)The Application was filed at 10.57pm on 7 March 2022.
On 23 March 2022, the Commission contacted Mr Staunton’s office regarding the Application. Later that afternoon, during a conversation with the Commission's representative, Mr Staunton became aware that the Application had been filed out of the twenty-one (21) day period.
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
The dismissal took effect on 11 February 2022. The final day of the 21 day period was therefore 4 March 2022, and ended at midnight on that day. The Application was made on 7 March 2022. The Application was made three days late.
As the Application had not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the Application to be made.
Was the Application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
I set out my consideration of each matter below.
Reason for the delay
For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 24 November 2021. The delay is the period commencing immediately after that time until the filing of the Application, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
The Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[5]
The Applicant’s submission was that the sole cause of the error was representative error. The unchallenged evidence of Mr Staunton was that he mistakenly advised the Applicant that the filing date of the Application would fall on 7 March 2022. Mr Staunton placed the matter in his calendar for filing on 7 March 2022, and made arrangements for the Application to be lodged within that timeframe.
The Respondent submitted that while it agreed that there were several errors made by the Applicant’s representation, the Applicant was also at fault in that he did not take steps to review the information given to him by his Solicitor or ensure that the Application was filed on the correct date.
The Respondent further submitted that the Applicant would have become aware of the 21 day time limit for lodging the application on several occasions, being:
(a)When looking on the Fair Work Commission or Fair Work Ombudsman website, the time limit of 21 days is the first thing mentioned. If the Applicant contacted the Commission by phone, the Commission staff would have advised him of the same.
(b)The Applicant would have seen it on the Form F8 which he approved to be lodged.
(c)The Applicant’s representative would have told the Applicant that the Application would have to be lodged within 21 days.
(d)The Applicant was advised by his Solicitor when they intended to file the Application but did not turn his mind to calculating the correct date.
The relevant principles of representative error were established in Clark v Ringwood Private Hospital (Clark).[6] In Davidson v Aboriginal & Islander Child Care Agency (Davidson);[7] a Full Bench of the Australian Industrial Relations Commission summarised the principles of representative error as follows:
“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i)Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii)A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii)The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv)Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be considered.”[8]
It is clear from the principles of representative error that an assessment of the conduct of the Applicant will be a central consideration, particularly whether the Applicant is blameless for the delay occasioned. I consider the delay in this matter can be wholly attributed to the Applicant’s representative. The Applicant had made himself available to Mr Staunton for preparation of the Application on numerous occasions.
The Applicant followed Mr Staunton’s fundamentally flawed advice that he had to file the Application by 7 March 2022. I do not consider such reliance on professional advice as unusual, and reject the Respondent’s submission that the Applicant should have double checked the advice he received from Mr Staunton.
Having regard to the above, I am satisfied that the Applicant has provided an acceptable explanation for the delay, and that is a factor that weighs in favour the Applicant in this matter.
What action was taken by the Applicant to dispute the dismissal?
This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application. In all the circumstances, I do not find that the Applicant took any action to dispute the dismissal after it occurred. I consider this factor is a neutral consideration.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent did not suggest any significant prejudice would be caused to it in the event the Commission extended the time for the Application to be made. It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice is not necessarily a factor which weighs in favour of the Applicant for an extension of time. I consider this factor is also a neutral consideration.
What are the merits of the Application?
Having examined the materials, it is evident to me that the merits of the Application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).”[9]
It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the Application. I therefore do not consider this factor relevant to my determination.
Fairness as between the Applicant and other persons in a similar position
The Applicant submitted that the Commission should take into consideration fairness as between the Applicant and other persons whose delay was attributable to comparable representative error. The Applicant submitted that comparatively, an extension should be granted having regard to circumstances in which the delay was attributed to Mr Staunton. In Dean- Villalobos v QGC Limited T/a QGC,[10] Commissioner Asbury (as she then was) considered circumstances in which the Applicant provided instructions to their legal representative to file within the allowable time. The Commissioner noted at [146]:
“As a general rule, persons who provide clear instructions to legal representatives and execute necessary documents in a reasonable time frame to allow them to be filed within time limits under the Act should not be prejudiced because of failure on the part of those legal representatives to comply. It is not unfair to other persons in the same position as the Applicant in this case, to extend the time limit for filing the application.”
In relation to this factor, I find that fairness between the Applicant and others in a similar position is a factor weighing in favour of a finding of exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[11] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[12]
It is clear that the factors that have been accorded significant weight in this matter are the presence of an acceptable reason for the delay, and fairness between the Applicant and others in a similar position, both weighed in the Applicant’s favour. No factors weighed in the Respondent’s favour.
Having regard to all of the matters listed at s.366(2) of the FW Act, I am satisfied that there are exceptional circumstances.
Conclusion
Being satisfied that there are exceptional circumstances, I may consider whether to allow a further period for the Application to be made.
Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[13] I am satisfied that it is appropriate to extend the period for the Application to be made to 7 March 2022.
DEPUTY PRESIDENT
Appearances:
Mr P Staunton, for the Applicant.
Ms P Speerstra, from the Respondent.
Hearing details:
2022
May 16
Sydney (via videoconference)
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Clark v Ringwood Private Hospital (1997) 74 IR 413.
[7] Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1.
[8] Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1, 6.
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[10] [2013] FWC 1537.
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[13] Fair Work Act 2009 (Cth) s 577.
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