Mr Daryl Ashton v Qube Bulk Pty Ltd
[2016] FWC 7668
•21 OCTOBER 2016
| [2016] FWC 7668 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Daryl Ashton
v
Qube Bulk Pty Ltd
(U2016/10555)
COMMISSIONER PLATT | ADELAIDE, 21 OCTOBER 2016 |
Application for unfair dismissal remedy - jurisdiction - application for extension of time for lodgment - whether representative error - whether exceptional circumstances - extension of time not granted.
[1] Mr Ashton lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Qube Bulk Pty Ltd (Qube).
[2] The application was lodged on behalf of Mr Ashton by Mr de Zwart, of DeLancey Legal.
[3] That application advised that Mr Ashton’s dismissal took effect on 27 June 2016 and provided the following reason for the late lodgement:
“1.4.1 The Applicant filed through his former lawyer an application for the Commission to deal with a 'dispute' under s.739 on 13 July 2016. That was well within 21days of the date of his dismissal on 27 June 2016. By that application the Applicant sought to take issue with his dismissal as a 'dispute'. Pursuant to advice of his former lawyer, the Applicant framed the application as either a 'dispute' arising under an enterprise agreement pursuant to s.738(b), or else as a 'dispute' arising under any written agreement concerning National Employment Standards or a safety net contractual entitlement pursuant to s.738(c). That application was misconceived because neither enlivened the Commission's jurisdiction in the circumstances. The Commission listed that application for a conference on 27 July 2016. [See Annexure A]
1.4.2 The Applicant lives in Port Hedland. Within a week or so, the Applicant instructed new solicitors, Delancey Legal. Delancey has a regional office in the Pilbara, but is headquartered in Melbourne, with its Principal regularly travelling between Melbourne and the Pilbara. Delancey Legal promptly made enquiries for a Western Australian counsel. By Monday 15 August 2016 a suitable WA counsel had been identified and briefed with outline materials. Mandatory costs agreements had been executed by Friday 19 August 2016.
1.4.3 The Applicant is now in his 60s. If the Commission refuses to entertain his out-of-time application for unfair dismissal, pursuant to which the Applicant seeks an order for reinstatement, it may be challenging for the Applicant to obtain subsequent employment. That is particularly so given that the Applicant has worked continuously, but for 2 years between July 2011 and July 2013, for the Respondent since 19 March 2004.
[4] On 14 September 2016, Deputy President Gooley corresponded with both Mr Ashton and Qube and advised that the extension of time issue would be considered through a telephone conference on 29 September 2016. Substantial information about the extension of time issue was provided to the parties. Mr Ashton was directed to provide an outline of argument, statements and a document list by 21 September 2016. Qube was required to submit documents in reply by 28 September 2016.
[5] The matter was subsequently allocated to me to conduct the hearing.
[6] The Employer’s Response to the application indicated that Qube opposed the extension of time.
[7] The written submissions filed on behalf of Mr Ashton are summarised as follows:
● Mr Ashton was dismissed by Qube on 27 June 2016;
● Mr Ashton’s original solicitor, Dr Whitwell filed a s.739 application in the Commission;
● on 18 July 2016, the time for lodging an unfair dismissal application expired;
● on 15 July 2016, Qube wrote to Dr Whitwell stating that in its opinion the Commission lacked jurisdiction to deal with the s.739 application;
● Dr Whitwell advised Mr Ashton to proceed with the s.739 application;
● at a hearing on 27 July 2016, Commissioner Cloghan indicated that the Commission lacked jurisdiction and the dispute was withdrawn;
● on 29 July 2016, the applicant contacted Ms Akers of DeLancey Legal and later that day delivered his papers for consideration;
● on 4 August 2016, Ms Akers provided Mr Ashton with provisional advice;
● on 9 August 2016, Mr Ashton met with Ms Akers and later in that week, Ms Bailey;
● on 15 August 2016, Ms Akers advised Mr Ashton that she had spoken with counsel for advice;
● on 16 August 2016, counsel gave Ms Akers advice by telephone;
● on 19 August 2016, cost agreements were executed;
● on 24 August 2016, the application was filed;
● the applicant was not dilatory and that it was difficult to imagine he could have done more;
● the applicant should not be he held responsible for representative error on behalf of Dr Whitwell;
● Qube was not prejudiced by the application;
● there was a dispute as to the facts on the merits and disputes as to inferences where the facts are agreed; and
● Mr Ashton’s age would present challenges to him finding alternative employment; and
● Mr Ashton was not responsible for any delay;
[8] A statement of Ms Ashton was submitted. The statement detailed the reasons why Dr Whitwell adopted this course of action, and that after the s.739 conference Mr Ashton lost confidence in Dr Whitwell.
[9] The written submissions filed on behalf of Qube are summarised as follows:
● on 27 June 2016, Mr Ashton’s employment was terminated with immediate effect;
● on 13 July 2016, Ms Ashton filed a dispute with the Commission;
● on 15 July 2016, Qube advised Mr Ashton that it did not believe the Commission had jurisdiction to deal with the dispute under s.739 of the Act, and at that time the Mr Ashton could have filed an unfair dismissal application within time;
● Mr Ashton has not put forward any exceptional circumstances within the meaning of s.393(3) as considered by Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [25] and Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 [14];
● the application was not made for 28 days following the s.739 conference where the Applicant was advised the Commission lacked jurisdiction;
● the new solicitors took a further 18 days to lodge the application after a request for information was refused by Qube;
● whilst representative error may be cause for an extension of time the conduct of the applicant is relevant. In Clark v Ringwood Hospital, 1the applicant did not act promptly taking ‘a week or so’ to instruct new solicitors; and
Mr Ashton has not provided a credible explanation for the entire period of delay; 2 and
the application should be dismissed.
[10] Despite numerous attempts made by my Associate to contact Mr Ashton, Mr Ashton attended the conference in its last five minutes. I understand that this was due to technical difficulties. I draw no adverse inference from this. At the start of the conference, Mr Crowley of counsel agreed to continue in the absence of his client. Permission to appear was granted to Mr Crowley under s.596 of the Act. Ms Julia Swift, National Workplace Relations Manager represented Qube.
[11] A sound file record of the telephone conference was kept.
[12] At the conference, Mr Crowley reiterated his written submissions and further submitted that:
● I should consider the prejudice (in that Ms Aston’s application would not he heard) should an extension of time be denied under my general discretion to award relief;
● DeLancey Legal had provided ‘speedy advice’ and there had been no delay since their engagement; and
● that Mr Ashton has been treated unfairly compared to a “hypothetical comparator.”
[13] Mr Crowley referred to a range of tests pursuant to s.366(2) of the Act but later accepted that the tests relevant to this matter were contained in s.394(3).
[14] Ms Swift reiterated her written submission and that there were no exceptional circumstances.
[15] There was no statement or evidence submitted at to as to by Mr Ashton’s actions in pursuing the matter once De Lancey Legal had been instructed.
[16] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.
[17] Section 394 relevantly states:
“394 Application for unfair dismissal remedy
....
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
[18] Mr Ashton’s unfair dismissal application was made 37 days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended.
[19] I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd3 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).
[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.”
[20] Mr Ashton asserts that the delay was caused by representative error. It is not disputed that Mr Ashton was dismissed on 27 June 2016. Mr Ashton was initially represented by Dr Whitwell, who filed a s.739 application in the Commission on 13 July 2016. On 15 July 2016, Qube advised the applicant in writing that the Commission lacked jurisdiction to hear this application. I accept that Dr Whitwell advised Mr Ashton to continue to pursue the application. On 27 July 2016, Commissioner Cloghan heard the s.739 application and advised the parties that the Commission lacked jurisdiction to proceed. It appears that Dr Whitwell was under the understanding that Mr Ashton’s wage was such to exclude him from the unfair dismissal jurisdiction. This view would have been correct but for the fact that Mr Ashton was covered by an Enterprise Agreement. The application was withdrawn on 27 July 2016.
[21] On 29 July 2016, Mr Ashton contacted Ms Akers, his current representative. On 4 August 2016, Ms Akers provided provisional advice. A further meeting occurred on 9 August 2016, Ms Akers sought counsel’s advice, that advice was received the following day. On 24 August 2016, the application was lodged.
[22] Mr Ashton submitted a statement from his wife which supported the chronology of the period of representation by Dr Whitwell described above. It also confirmed that Mr and Ms Ashton both met his new lawyer about a week after the Commission hearing.
[23] Mr Crowley submitted DeLancy Legal provided speedy advice. I do not accept that characterisation.
[24] Having been provided with the papers from Mr Ashton on 29 July 2016, and meeting with Mr Ashton on 9 August 2016, it should have been obvious to DeLancy Legal that there was a need to act promptly as the statutory limitation had already expired.
[25] The long standing approach of the Commission is that representative error may represent an acceptable reason for the delay and therefore, in terms of the current legislative requirement, an exceptional circumstance. 4 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.
[26] I have reviewed Mr Ashton’s circumstances in the context the approach taken in the decision in M N Robinson v Interstate Transport Pty Ltd. 5 In that matter the Full Bench detailed the approach to be taken, in the following terms:
“[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.”
[27] The applicant needs to provide a credible explanation for the entire period of the delay. 6
[28] I accept the explanation for the delay occasioned by the approach of Dr Whitwell for the period up to 27 July 2016, and that this portion of the delay was caused by representative error.
[29] However, there is no satisfactory explanation for the further delay until the application was lodged on 24 August 2016, some 28 days after Mr Ashton became aware that his s.739 application could not be pursued. 7 This was 20 days after Mr Ashton was provided with provisional advice and 13 days after Ms Ashton met with Ms Akers to discuss “progressing the case.”
[30] De Lancey Legal’s apparent failure to promptly file an application 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.8 All of the actions, or in this case, lack of action on the part of Mr Ashton are relevant to the question of whether there is an acceptable reason for the delay.
[31] There is no evidence of Mr Ashton pursuing the matter after 9 August 2016 or making any follow up phone calls prompting his representative to urgently file the application. There is no evidence before me as to when Mr Ashton instructed that a claim be filed. It appears he took little action to pursue the lodgement of his claim. It is not suggested that Mr Ashton was unaware of the 21 day time limit. Having been led up the garden path once, Mr Ashton should have kept a close watch on the pursuit of his claim. In my view the delay was compounded by lack of action on the part of Mr Ashton to follow up the conduct of his representative.
[32] I reject the submission by Mr Ashton that a failure to award an extension of time would prejudice him in so far as he would not be able to prosecute his claim, if that were the basis for determining extension of time applications no application could be refused.
[33] I am not satisfied that the granting of an extension of time would prejudice the respondent.
[34] In terms of the merits of the application, the applicant submits that there are disputes as to the facts and the inferences to be made from otherwise agreed facts. I accept this position and consequently have regarded the merits of the matter as a neutral factor with respect to the extension of time issue.
Conclusion
[35] For the reasons I have set out above, I am not satisfied that Mr Ashton circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order 9 reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
D Crowley of Counsel, on behalf of the Applicant.
J Swift, on behalf of the Respondent.
Hearing (Conference) details:
2016.
Adelaide:
September 29.
1 (1997) 74 IR 413 at 419.
2 Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403.
3 [2011] FWAFB 975.
4 Clark v Ringwood Private Hospital (1997) 74 IR 413.
5 [2011] FWAFB 2728.
6 Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403.
7 Palmer v RCR Engineering Pty Ltd (2009) FWA 1431.
8 See Clark v Ringwood Private Hospital (1997) 74 IR 413 and Comcare v O’Hearn [1993] 119 ALR 85.
9 PR586790.
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