Mr David Fewins v Aristocrat Technologies Australia Pty Limited

[2014] FWC 6767

[2014] FWC 6767

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr David Fewins
v
Aristocrat Technologies Australia Pty Limited
(U2014/8257)

COMMISSIONER CAMBRIDGE SYDNEY, 29 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] This matter involves an application for unfair dismissal remedy made pursuant to s. 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 9 July 2014. The application was made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) on behalf of David Fewins, (the applicant) and the respondent employer is Aristocrat Technologies Australia Pty Ltd (the employer).

[2] The application indicated that the date of the applicant’s dismissal was 17 June 2014. Consequently the application was made 1 day after the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The application also included the following explanation for the late lodgement of the application:

“While the dismissal took place [on] 17 June, Mr Fewings [sic] was not made aware of the dismissal until 18 June 2014. We therefore argue that the application is within the 21 calendar days.”

[4] The employer’s response to the application (Form F3) relevantly stated, inter alia;

“(e) The Applicant has not identified any exceptional circumstances which would warrant an extension of time being granted. Indeed, the Respondent submits that there are no such exceptional circumstances.

(f) The Respondent submits that no extension to the timeframe should be granted. Instead, the Respondent submits that the application should be dismissed for want of jurisdiction.”

[5] The matter was listed for Conciliation, by Telephone, on 13 August 2014. However the Conciliation was cancelled presumably because of the jurisdictional objection raised by the employer. The Fair Work Commission (the Commission) then held a Directions proceeding on 12 August 2014, at which time Directions were made for the Parties to file and serve all material in respect to the determination of the extension of time question.

[6] The CEPU has subsequently filed an unsigned Statement of the applicant dated 29 August 2014, a Statement of Ronald Phillip De La Cuadra which was signed and dated 29 August 2014, and an Outline of Submissions. Solicitors acting for the employer have advised that the employer does not consent to the Orders sought in the applicant's Outline of Submissions dated 29 August 2014. However, the solicitors further advised that the employer did not propose to file any submissions or evidence in relation to the extension of time issue.

[7] The Parties confirmed that the extension of time issue should be determined upon the material which had been filed and without any requirement for a Hearing.

Factual Background

[8] The applicant had worked for the employer for nearly 30 years. The applicant was employed as a Technician.

[9] On 16 June 2014, the employer met with the applicant to discuss work performance issues. During this meeting the applicant was asked to sign a Deed of Release which included a statement that he had resigned from employment. The applicant refused to sign the Deed and he asked for and was granted an opportunity to consider the matter overnight.

[10] The applicant met with the employer on the following day, 17 June 2014 whereupon he advised the employer that he would not sign the Deed. The applicant was then dismissed from employment. However, written confirmation of the dismissal was not provided to the applicant until the following day, 18 June 2014.

[11] Shortly after his dismissal on 17 June, the applicant made contact with CEPU Organiser, Mr Daniel Weizman. The applicant asked Mr Weizman to make a claim for unfair dismissal remedy on his behalf.

[12] On 17 June 2014, Mr Weizman spoke with another CEPU Officer, Mr De La Cuadra about the dismissal of the applicant and the requirement to commence an unfair dismissal claim. Mr De La Cuadra asked if the applicant has a copy of his termination letter and Mr Weizman advised that at that time, 17 June, the applicant had not been provided with a copy of any termination letter. Subsequently, in the week beginning the 23 June 2014, Mr De La Cuadra was provided with a copy of the applicant's termination letter which was dated 18 June 2014.

[13] In the days that followed, Mr De La Cuadra was occupied with certain requirements to produce documents for the Royal Commission into Trade Union Governance and Corruption. The requirement for Mr De La Cuadra to attend to these other duties and an absence from work on 7 July 2014, meant that he did not attend to filing the applicant's unfair dismissal claim until 2 July 2014, as he mistakenly believed that the applicant had not been advised of his dismissal until the date that appeared on the letter of dismissal, 18 June 2014.

The Applicant’s Case

[14] The submissions made on behalf the applicant asserted that the application had been filed only 1 day out of time and there were exceptional circumstances which should permit an extension of time. These submissions referred to the provisions of subsection 394 (3) of the Act.

[15] In summary, the submissions made by the CEPU on behalf of the applicant acknowledged that the late lodgement occurred as a consequence of representative error for which an explanation had been provided. It was submitted that the applicant should not be denied an opportunity to make claim for unfair dismissal in such circumstances. It was further submitted that the applicant had taken quick action to seek to have the circumstances of his dismissal the subject of claim for unfair dismissal remedy. Further, the employer had been made aware of disputation regarding the dismissal at an early stage and would suffer little prejudice if the extension of time was granted.

The Employer's Case

[16] The employer filed no further material in support of its jurisdictional objection beyond the statements which were contained in the employer's response document.

Consideration

[17] Subsection 394 (3) of the Act provides the Commission with a discretion to extend the time limit of 21 days as fixed by subsection 394 (2). Subsection 394 (3) is in the following terms:

“(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] As can be seen from subsection 394 (3), the Commission must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which the Commission is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a prescribed time.

[19] Importantly, the onus rests with an applicant to convince the Commission to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394 (3) of the Act, it seems to me that the particular length of any delay should logically be connected to the onus on any applicant seeking the exercise of the discretion to extend time. It would be logical for the length of any delay to amplify the onus on an applicant in broadly exponential terms, such that the longer the delay is, the greater the difficulty is in establishing proper basis for the exercise of the discretion.

[20] Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years must be assessed differently to a delay of 21 days where the time limit was 21 days. Consequently I believe that the length of the delay should be a factor taken into consideration when any extension of time has been sought.

[21] In this case the delay was 1 day relevant to the 21 day time limit. Consequently the delay has represented the shortest possible length of any delay.

Subsection 394 (3) (a) - the reason for the delay

[22] In this instance the reason for the delay was representative error on the part of the CEPU. The nature of the representative error could be readily appreciated as it was directly connected with the date that appeared on the letter of dismissal. That date being the day after the applicant was verbally advised of his dismissal.

[23] In respect to the issue of representative error a Full Bench of the Commission has helpfully summarised this question 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  16 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 Case17 in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case18 found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act.19 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 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 carryout 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.”  1 [Emphasis added]

[24] In this case the applicant acted quickly to challenge his dismissal and he contacted Mr Weizman to pursue the matter on his behalf. The delay with the lodgement of the application was something about which the applicant was essentially blameless. The applicant would have understandably believed that Mr Weizman and all other officers of the CEPU would have properly attended to the filing of an unfair dismissal application.

Subsection 394 (3) (b) - whether the person first became aware of the dismissal after it had taken effect

[25] The applicant first became aware of the dismissal at the time at which he was dismissed. Consequently this factor does not provide any assistance to the applicant.

Subsection 394 (3) (c) - any action taken by the person to dispute the dismissal

[26] The applicant took almost immediate action to dispute the dismissal. On the same day as the applicant was verbally advised of the dismissal, the employer was contacted by the CEPU and advised of the challenge to the dismissal. Therefore this factor assists the applicant and operates to support the extension of time.

Subsection 394 (3) (d) - prejudice to the employer (including prejudice caused by the delay)

[27] The employer provided no basis upon which to establish that there was any prejudice that could be identified in this instance. Consequently, this factor could be considered to provide potential assistance to the applicant.

Subsection 394 (3) (e) - the merits of the application

[28] This factor, described in the Act as “the merits of the application”, is directed towards some elementary assessment of the potential prospects of the matter at Hearing if the extension was granted. The employer made no submissions in this regard. Conversely, the CEPU submitted that substantial errors occurred in respect of the dismissal which involved the termination of a long standing employee of almost three decades.

[29] It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. Importantly there was no suggestion that the unfair dismissal claim was entirely without basis or involved some vital flaw which would render it open to the prospects of summary disposal. On any objective and balanced assessment it presents as an arguable case. Consequently, the logical consideration of this factor would provide support for the granting of an extension of time.

Subsection 394 (3) (f) - fairness as between the person and other persons in a similar position

[30] In the absence of any evidence about the treatment of other employees of the employer I have decided to treat this factor as being neutral.

Exceptional Circumstances

[31] Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case ofJohnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery  2. The consideration therein establishes a caution against adopting an overly stringent interpretationofwhat constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.

[32] Further assistance in providing an understanding of exceptional circumstances in the context of a legislative time limit can be obtained from the Full Bench Decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd and the following paragraph from that Decision is particularly helpful:

“ [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.” 3

Conclusion

[33] In this instance the exercise of the discretion to extend time has been required in respect to a delay of one day. In this context the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been given careful consideration.

[34] The reason for the delay involved representative error. The representative error was made with a plausible explanation. In summary, the representative error of itself, in circumstances where the applicant was blameless has established exceptional circumstances sufficient to extend time. The other factors under consideration either assisted the applicant's claim for the Commission to exercise the discretion to extend time, or were of neutral impact.

[35] Consequently, exceptional circumstances have been established and it would be just and equitable for the Commission to exercise the discretion to extend time. An Order [PR 555925] made pursuant to subsection 394 (3) of the Act allowing a further period until 9 July 2014 for the application to be made will be issued in conjunction with this Decision.

[36] The matter will be referred for Conciliation proceedings to be conducted.

COMMISSIONER

Appearances:

Mr Ronald De La Cuadra, on behalf of the Applicant

Mr Anthony Woods, solicitor from Henry Davis York, on behalf of the Respondent

Final written submissions:

2014.
Sydney:

September, 10.

 1   M N Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728.

 2   Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 3   Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

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