Mr Dean Cheeseman v Laming Racing Pty Ltd

[2019] FWC 1629

[2019] FWC 1629

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Dean Cheeseman
v
Laming Racing Pty Ltd
(U2018/13413)

COMMISSIONER CIRKOVIC MELBOURNE, 14 MARCH 2019

Application for an unfair dismissal remedy.

[1] This is an edited version of a decision delivered ex tempore and recorded in transcript on 13 March 2019. Mr Dean Cheeseman (the Applicant) has made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment with Laming Racing Pty Ltd (the Respondent) was unfair.

[2] Applications for unfair dismissal remedies must be filed within 21 days of the date of dismissal. 1 According to the Applicant’s submission, the Applicant’s dismissal took effect on 24 November 2018. According to the Respondent’s submission, the dismissal took effect on 26 November 2018. In either case, the application was due to be filed on 17 December 2018. The Applicant filed his application on 21 December 2018, four days out of time.

[3] Under s.394 (3) of the Act the Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The issue of extension of time was heard before me this morning by telephone. Permission to be represented was granted to both parties under s.596 of the Act. The Applicant relied upon his application in addition to material filed on 19 February 2019 and the Respondent relied upon its form F3 filed on 9 January 2019 and material filed on 25 February 2019. The Applicant and Ms Sharyn Sakys gave evidence on behalf of the Applicant.

[5] Section 394(3) of the Act sets out the factors which the Commission is to take into account in determining whether there are exceptional circumstances warranting the extension of time to file an application under s.394. These factors are:

(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.

[6] I address each of these factors in turn.

(a) the reason for the delay;

[7] It is not in contest that the Applicant was aware of the 21 day deadline. The Applicant submitted that the reason for the delay was the failure by an employee of “Australian Dismissal Services” (ADS), an agency whom the Applicant had engaged for the purpose of filing and conducting his claim, to file his application within the time limit.

[8] The evidence as to the course of events leading to this error was as follows. Following the Applicant’s initial notification of termination on 24 November 2018, he acted as soon as possible in contacting ADS on the next business day, Monday 26 November 2018. The Applicant spoke to ADS employee Mr Alan Frampton, who sent ADS’ terms of engagement to the Applicant following the conversation. It is not in contest that by 28 November 2018 the Applicant had completed and returned the terms to Mr Frampton, and provided him with the material required for his application, including the termination letter dated 26 November 2018. In the week of 3 December 2018, the Applicant contacted Mr Frampton to inquire as to the status of his application and was advised that “all is in hand”. It is also not in contest that the Applicant formed the view that the application would accordingly be filed within time and that it was unnecessary for him to have contact with Mr Frampton again before the next step in the Commission proceedings.

[9] It is not in contest that in the week of the deadline for filing, that being 17 November 2018, Mr Frampton failed to lodge a number of claims on behalf of ADS within time, including the Applicant’s.

[10] On 21 December 2018 Ms Sakys, the administration manager at ADS, became aware that the Applicant’s application had not been filed. She contacted the applicant to apologize and inform him that his application had not been filed but would be filed as soon as possible. Ms Sakys filed the application in the afternoon of 21 December 2018.

[11] The Applicant submitted that Mr Frampton and ADS’ failure constituted ‘exceptional circumstances’ because the Applicant had acted immediately and it was reasonable for him to rely upon Mr Frampton’s advice of around 3 December 2018. The Applicant described the circumstances as ‘representative error’ and referred to well-established authority within the Commission wherein these circumstances have been considered to be “exceptional” for the purpose of granting extension of time.

[12] The Respondent submitted that the events leading to the late filing were not exceptional but were unexceptional administrative errors. It submitted further that the Applicant could have done more in ensuring that his application was filed beyond his telephone call of around 3 December 2018. Finally the Respondent submitted that, as the Applicant had engaged ADS as his agent, ADS’ administrative failures should be attributed to the Applicant personally such that ‘representative error’ could not be considered exceptional.

[13] The Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. 2 It is well established that representative error may constitute a reasonable or acceptable explanation for delay.3 In this case, I am persuaded that the failures of Mr Frampton and ADS to file the Applicant’s claim constitute a reasonable explanation for delay. It is unsurprising that the Applicant, having instructed ADS and Mr Frampton, expected his instructions to be carried out. I am persuaded that, following the conversation with Mr Frampton on about 3 December 2018, the Applicant had reasonable grounds to believe that his application was in a state to be filed, and would be filed on time. In my view, the Applicant was blameless for the delay, and the representative error in this case weighs in favour of a finding of exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[14] The Applicant was notified of his dismissal on 24 November 2018. The Applicant accordingly had the full 21 days to lodge the application. This is not a case in which the Applicant became aware of the dismissal after it came into effect and therefore did not have the benefit of the full 21 days for lodging an unfair dismissal claim. Consequently in this case this consideration is neutral.

(c) any action taken by the person to dispute the dismissal;

[15] The Applicant points to his taking immediate steps to instruct ADS on 26 November 2018. This is a step taken to dispute his dismissal. The Applicant also contacted Mr Frampton again in the week of 3 December 2018 to enquire as to the state and status of his claim. The Applicant’s actions in disputing the dismissal weigh in favour of a finding of exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[16] The application was filed 4 days out of time. The Applicant submitted that there would be no prejudice to the Respondent, and the Respondent’s F3 form concedes that there was no unfairness or negative business effect as a result of the late filing. Nevertheless, the mere absence of prejudice is not itself a factor that would warrant or tell in favour of the grant of extension of time. I consider this to be a neutral factor in the present case.

(e) merits of the application

[17] Both parties have filed material in relation to the substantive aspect of this matter. The Applicant was summarily dismissed for alleged conduct which is disputed. In applications of this kind, being interlocutory in nature, it is inappropriate to express a concluded view about the merits of an application. There is insufficient material before me to make any detailed assessment of the merits. I have not done so. I find this criterion neutral in this matter.

(f) fairness as between the person and other persons in a similar position

[18] Applications to extend time generally turn on their own facts. I have considered the Applicant’s submission with respect to the question of fairness with respect to the Applicant and other persons in a similar position. I consider this to be a neutral consideration in this matter.

Conclusion

[19] Having regard to all of the matters of which I am required to consider under s.394(3) of the Act, I am satisfied that there are exceptional circumstances to allow a further period of time for the making of the application by Mr Cheeseman. In the circumstances of this case, the short delay involved and the existence of an acceptable reason for the delay, as found above, satisfy me that I should allow a further period for the making of the application. In my view, the error of Mr Cheeseman’s representative, in circumstances where Mr Cheeseman is blameless for the delay, constitutes exceptional circumstances in which a further period for making the application should be allowed. Consequently I have decided to exercise my discretion and grant the Applicant an extension of time to make his application. An order to this effect will be issued with this decision.

[20] Accordingly, the matter will now be referred for further directions so that the merits of the Applicant’s unfair dismissal application can be heard and determined.

COMMISSIONER

Appearances:

Ms Amanda Millar (Applicant);

Mr Luke Jervis (Respondent).

Hearing details:

09:30am on 13 March 2019, in chambers.

Final written submissions:

Applicant’s submissions filed 19 February 2019;

Respondent’s submissions filed 25 February 2019.

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009 (Cth) s 394 (2).

 2   See Blake v Menzies (Ground Services) Pty Ltd [2016] FWC 1974, per Gostencnik DP at [9]; Roberts v Greystanes Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].

 3   See eg, Sharon Gillies v Mindarie Regional Council [2018] FWC 5018.