Mr Darren Richards v Lincoln Sentry Group Pty Ltd
[2023] FWC 1355
•8 JUNE 2023
| [2023] FWC 1355 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Darren Richards
v
Lincoln Sentry Group Pty Ltd
(U2023/2680)
| COMMISSIONER PLATT | ADELAIDE, 8 JUNE 2023 |
Application for an unfair dismissal remedy – request for an extension of time – application dismissed.
Introduction
The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]
This decision concerns whether I should exercise my discretion to allow Mr Darren Richards a further period for his unfair dismissal application (Application) to be made against Lincoln Sentry Group Pty Ltd (Lincoln).
Background
Mr Richards has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with Lincoln, which his form F2 unfair dismissal application advised took effect on 22 February 2023. However, the Applicant also stated in his application that this termination was subject to a 5 week ‘gardening leave’ until 27 March 2023 and he was not allowed to work for anyone else during that period.
The application was lodged on 30 March 2023.
The application did not recognise that it was made beyond 21 days from the date of dismissal.
On 18 April 2023, the Respondent lodged a form F3 Employer Response which indicated that the dismissal occurred on 22 February 2023, and took effect immediately. The Respondent raised a jurisdictional objection on the basis that the application was lodged out of time and was a case of genuine redundancy. This decision only deals with the extension of time issue.
On 2 May 2023, I issued directions and advised that the extension of time issue would be considered at a Telephone Conference on 25 May 2023. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties.
Hearing
A hearing was conducted by way of telephone conference on 25 May 2023. A sound file record of the telephone conference was kept.
The Applicant was represented by Mr Dirks (paid agent) having been granted permission pursuant to s.596 of the Act. The Respondent was represented by Ms Nosal.
A digital court book was compiled from the material that was filed by both parties, and was distributed to the parties prior to the hearing. The entirety of the digital court book was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).
Mr Richards submitted a statement and gave evidence at the hearing. Mr Luke Slater (HR) and Ms Brooke Westphalen also provided a statement and gave evidence.
The relevant evidence is summarised as follows:
· On 17 February 2023, Mr Richards was requested by Mr Luke Slater (HR) to attend a meeting with HR on 20 February 2023. Mr Richards asked if his job was in jeopardy, but Mr Slater said he could not comment on that matter.
· On 20 February 2023, Mr Richards met Mr Slater and Ms Brooke Westphalen from HR. Mr Richards was advised that his role as Branch Manager was being made redundant as result of the Respondent’s acquisition of another company.
· Mr Richards contends that at the 20 February 2023 meeting, he was advised verbally that he was not required to attend for work and would be paid 5 weeks’ leave and would remain employed by the Respondent until 27 March 2023. The Respondent’s witnesses gave evidence that Ms Westphalen read from a prepared letter in Mr Slaters’ presence. That letter informed Mr Richards of the Respondent’s intention to make his role redundant, provided details of his entitlements and emphasised that a formal decision had not been made. After the meeting, Mr Richards cleared his desk and left. I accept that Mr Richards was advised as per the letter read out to him. If I am incorrect in this regard, then any misinformation about the notice period was corrected by the letter dated 22 February 2023.
· Mr Richards contends that on 21 February 2023, he attended the workplace and Mr Slater provided him with a letter dated 22 February 2023. The letter formally dismissed Mr Richards on the basis of redundancy with effect from 22 February 2023. The next paragraph stated: ‘As discussed, you will not be required to work out your notice period and will be paid 5 weeks in lieu of notice’. In his evidence, Mr Richards advised that he either overlooked or misread that paragraph. Ms Westphalen and Mr Slater contended that the meeting occurred on 22 February 2023. I accept that Mr Richards may have been affected when told of his redundancy and that his recollection as to the date could be incorrect. In any event, it matters little whether the letter was provided on 21 February 2023 or 22 February 2023.
· Mr Richards advised he first sought advice as to his dismissal on 27 February 2023.
· Mr Richards advised that he secured new employment on 27 March 2023.
· Mr Richards contends that he was replaced in his role. The Respondent contends that there were two persons at Mr Richards’ level after the acquisition of the other company and only one person was required to perform the Branch Manager role.
· Mr Richards contends that I should find that his employment ceased on 27 March 2023 and that accordingly, his application was filed within time.
· In the alternative, Mr Richards contends that representative error has occurred in that had his representative asked to see the termination letter, the correct termination date would have been invited and the Application lodged on time.
· No statement was submitted by Mr Dirks and he did not seek to give evidence. It appears Mr Dirk’s relied upon the information given to him by Mr Richards.
· The Application was lodged on 30 March 2023, 15 days after the time permitted.
The Respondent contends that Mr Richards employment ceased on 22 February 2023 and his circumstances are not exceptional.
Applicable Law
Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3]
I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:
“[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).
…
[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.”
Consideration
Paragraph 394(3)(a) - reason for the delay
A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[5]
It is not disputed that Mr Richards received a letter which advised that his employment ceased on 22 February 2023.
The Application should have been filed by 15 March 2023 but was filed on 30 March 2023.
The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[6] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[7] the Full Bench explained the correct approach by reference to the following example:
“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[8]
“[38] 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.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
Mr Richards’ principal contention was that he understood that his notice was being worked out (albeit with no requirement to attend for work) and that this may have arisen from him misreading his termination letter. The letter of termination is clear about the date the employment ceased. I am unable to accept that after reading the termination letter Mr Richards could have reasonably believed that he was working out his notice (even if he had been told so previously).
Mr Richards also contends that the failure of his Representative to ask for a copy of the termination letter has resulted in the correct termination date not being identified and the application being filed late. This is suggested to be ‘Representative Error’.
There is a wealth of case law which explores the limits of representative error as a credible reason for delay in extension of time matters.
The Full Bench in Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347 summarises the overall approach as follows:
“[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.
[25] The approach in Clark’s Case was summarised in Davidson’s Case 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 accepted.”
In Diotti v Lenswood Cold Stores Co-Op Society [2015] FWC 7659, Deputy President O’Callaghan explored representative error as a reason for the delay in a situation in which the Applicant did nothing to challenge her dismissal for 17 days before contacting her union. The relevant discussion is below:
“[14] The long standing approach of the Commission is that representative error may represent an acceptable reason for the delay and, hence in terms of the current legislative requirement, an exceptional circumstance. That approach is founded on the principle that, if an applicant did not contribute to a delay caused by his or her representative, it would not be fair to hold that error against the applicant. There is no coherent explanation for the delay, of some 17 days before Ms Diotti indicated concern to her union relative to the termination of her employment. In these circumstances, I am not satisfied that Ms Diotti’s circumstances mean that the relatively minimal effect of that representative error favour a finding of an exceptional circumstance and hence, an extension of time. Whilst I have accepted an element of representative error associated with Mr Blewett’s inaction in processing the matter between 19 October 2015 and 22 October 2015, any such representative error is not, of itself, a basis for an extension of time. Appropriate account must be taken of the overall circumstances and the conduct of the applicant. Consequently, all of the actions, or in this case, lack of action on the part of Ms Diotti are central to the question of whether there is an acceptable reason for the delay. The circumstances here are simply not properly characterised as fairly explaining the delay on the basis of representative error. The delay here was fundamentally caused by lack of action on the part of Ms Diotti even though she was aware of the 21 day time limit. She simply left it too late to request the assistance of her union.
[15] I have noted that United Voice took action on 16 October 2015, shortly after Ms Diotti advised of the concerns she had about the termination of her employment, so as to seek an explanation for this dismissal. Whilst this represents an alternative form of action to the lodgement of this application, Ms Diotti’s delay in bringing the matter to the attention of United Voice was of her own making.
[16] I am not satisfied that the granting of an extension of time represents prejudice to the respondent in this matter but this, of itself, cannot represent a basis for an extension of time.”
Finally, the Full Bench in Todd Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 made the following observations:
“[30] There seems little doubt, based on the Appellant’s evidence before us, that the delay during the period between 27 October 2015 and the date on which the application was ultimately lodged was occasioned by representative error. In and of itself representative error will not provide an acceptable explanation for a delay. A person relying upon representative error must also show that the person was blameless and did not by act or omission cause or contribute to the error.”
In my view, Mr Richards’ Representative has not fallen into error. Whilst Mr Richards may regret not reading the letter carefully in the first place, and not providing Mr Dirks with the letter, ultimately it was Mr Richards who provided inaccurate information to his representative.
This is not a circumstance where the Representative has made an error without contribution or fault on behalf of an Applicant. Accordingly, it cannot reasonably be described as ‘Representative Error.’
In my view, Mr Richards has not provided a credible reason for the delay in filing the application. This factor weighs against of the granting an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
Mr Richards was (or should have reasonably been) aware of the dismissal no later than 22 February 2023.
This factor weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[9]
No action was taken to contest the dismissal other than the lodgement of the Application.
This factor is a consideration against the granting of an extension of time.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[10] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[11]
There is no submission that the granting of an extension of time represents prejudice to the Respondent.
This factor is a consideration in favour of the granting of an extension of time.
Paragraph 394(3)(e) - merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[12] considered this criterion and said:
“[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.
An Order[13] reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
Mr Dirks on behalf of the Applicant.
Ms Nosal on behalf of the Respondent.
Hearing details:
2023.
Adelaide:
May 25.
[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)
[2] Section 394(3) of the Act
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[4] [2011] FWAFB 975
[5] Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]
[6] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
[7] [2016] FWCFB 349
[8] [2018] FWCFB 3288 at [35]-[45]
[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[10] Ibid
[11] Ibid
[12] [2016] FWCFB 6963
[13] PR762926
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