Mr Dean Philips v UGL Operations & Maintenance (Services) Pty Ltd

[2021] FWC 25

[2021] FWC 25

FAIR WORK COMMISSION

DECISION

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

Mr Dean Philips
v
UGL Operations & Maintenance (Services) Pty Ltd
(U2020/14183)

DEPUTY PRESIDENT ASBURY BRISBANE, 4 JANUARY 2021

Application for an unfair dismissal remedy – Application filed outside time required in s. 394(2) – Representative error - Exceptional circumstances established – Extension of time to make application granted

Overview

[1] This Decision concerns an application by Mr Dean Philips (the Applicant) under s. 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in respect of his dismissal by UGL Operations & Maintenance (Services) Pty Ltd (the Respondent). In his Form F2 Application for an unfair dismissal remedy, the Applicant states that his employment was terminated on 29 September 2020 and that the termination took effect on that date. There is no dispute from the Respondent as to the date of termination and its effect.

[2] The application was filed with the Commission on 28 October 2020. By virtue of s. 394(2) of the Act an application under s. 394 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 394(3). On the basis that the employment relationship was terminated on 29 September 2020, the application was required to be made by 20 October 2020. The application was made 8 days outside the time required in s.394(2) of the FW Act and it is therefore necessary to determine whether a further period should be allowed under s. 394(3) for the application to be made.

[3] On 5 November 2020, Vice President Catanzariti issued directions for the Applicant to provide reasons as to why an extension should be granted having consideration to the matters in s.394(2) of the Act, and for the Respondent to file a Form F3 – Employer Response with the Commission. The matter was subsequently allocated to me for determination and I issued Directions requiring the parties to file any additional material they sought to rely on in relation to whether a further period should be granted. My Directions indicated that in the absence of any request for a hearing, the application for an extension of time would be determined on the papers. Both parties have advised the Commission that they agree to that course.

[4] While it appears that there is likely to be a dispute of facts should the matter proceed to arbitration on the merits, the facts as are relevant to the extension of time are not. None of the witnesses were required for cross-examination. I do not consider that I am required to hold a hearing 1 and consider it appropriate to determine the extension of time issue on the papers.

[5] The Applicant is represented by Christopher Newman of the Construction, Forestry, Maritime, Mining and Energy Union (the Union). The Respondent was represented by Mr Patrick Ryan, Industrial Relations Manager for UGL Pty Limited. To the extent that Mr Ryan may require permission to appear because he is employed by a related entity that is not the Respondent, I grant permission pursuant to s. 596 of the FW Act on the basis that I am satisfied that it would enable the matter to be dealt with more efficiently and no issues of fairness arise.

Extension of time application

[6] The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. 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. 2 Exceptional circumstances may include a single exceptional factor, 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.3

[7] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.

[8] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

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

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

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

(e) the merits of the application; and

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

[9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

Consideration

Reason for the delay

[10] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 4 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.5

[11] 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. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 6 In the present case, the reason for the delay advanced by the Applicant is representative error.

[12] It is well established that a person who places matters into the hands of a representative such as a lawyer, paid agent or union, and takes all reasonable steps to ensure that instructions are provided sufficient to enable an application to be filed within a required time, have a legitimate expectation that their instructions will be carried out, and a failure on the part of such a representative to do so is an exceptional circumstance in the sense that it is unexpected. Further, an Applicant who engages a representative also has a legitimate expectation that advice they are given in relation to procedural matters is correct.

[13] In Robinson v Interstate Transport Pty Ltd 7, a Full Bench of the Commission held that depending on the particular circumstances of a case, representative error may constitute exceptional circumstances and be a sufficient reason to extend time. The Full Bench stated that the conduct of the Applicant is a central consideration to deciding whether representative error provides an acceptable explanation for delay. In particular the Full Bench distinguished the case of an applicant who leaves the matter in the hands of a representative and takes no steps to inquire as to the status of their claim, from one where an applicant gives clear instructions to the representative to lodge a claim and the representative fails to carry out those instructions, through no fault of the applicant.

[14] In the latter case an applicant is blameless and it is more likely that representative error will be given significant weight in consideration of whether there are exceptional circumstances justifying a further period to make an application. Representative error can include inactivity or carelessness of an applicant’s representative. It is also apparent from the case law concerning representative error as an explanation for delay that it is necessary to balance the nature of the error and to consider the contribution that the applicant’s conduct made to the error or the delay.

[15] In my view a dismissed employee who seeks support and assistance from a union has every right to expect that the case will be handled with expertise and professionalism, and that necessary steps to prosecute the case will be taken in a timely manner. A union member has as much a legitimate expectation of expertise and professionalism on the part of a union as does the client of a solicitor. It would be unusual or abnormal for a representative who is an officer or employee of a union to act negligently by failing to file an application following a clear instruction to that effect from a client. To find otherwise would allow dismissed employees who instruct a solicitor to rely to a greater degree on representative error as an explanation for filing an application late, to the detriment of dismissed employees who use the services of a union to obtain representation.

[16] Any professional representative, particularly of a kind recognised in the Act, and a Union which receives fees from members for services, engaged to represent a dismissed employee, would be expected to manage the in-time filing of an unfair dismissal application. A failure on the part of any such representative may constitute an acceptable explanation for delay in making an application for the purposes of establishing that there are exceptional circumstances justifying the grant of a further period in which to make the application. 8

[17] In the present case, the Applicant states that he was employed by the Respondent in August 2019, to work at the Blackwater No 1 Mine. As previously noted, the Applicant was dismissed on 29 September 2020 and made his unfair dismissal application on 28 October 2020. The Applicant acknowledged in his Form F2 application that the application was filed late and provided the following explanation:

“1. The applicant provided his termination letter and other related material to his representatives (the CFMMEU) on 16 October 2020 with a request to pursue an unfair dismissal on his behalf.

2. The CFMMEU mixed his application with another member who had a similar name and his request misplaced until 28 October 2020.

3. The application is made out of time due to representative error.”

[18] The Applicant provided a statement of evidence in support of a further period in which to make his application being granted, and was not required for cross-examination. In summary, the Applicant’s evidence is:

•  Following his dismissal the Applicant took a few days to consider his options;

•  On 2 October, the Applicant attended the CFMMEU offices in Blackwater and spoke with Kristy Gibson about meeting with someone to discuss the dismissal. The Applicant was advised that he would be contacted by Steve Pierce, District Vice President about a meeting;

•  On 6 October, the Applicant rang the CFMMEU Blackwater office as he had not yet heard from Mr Pierce – Mr Pierce contacted the Applicant later on that day;

•  During that conversation, the Applicant statement to Mr Pierce, words to the effect that “I wanted to go for an unfair dismissal with the assistance of the Union”;

•  Mr Pierce advised the Applicant that in order to be represented by the Union he needed to provide the Union with material such as the dismissal letter, any warnings or other paperwork, a letter or notes outlining the harassing behaviour and possibly witness statements from other employees about the behaviour;

•  Between 6 October and 16 October 2020 the Applicant collated the material related to his dismissal and took it to the Union’s Blackwater office so that it could be scanned;

•  The Applicant attended the CFMMEU Blackwater office on 16 October 2020 at which time Ms Gibson put all his material together in an email that was sent to Mr Pierce in order for his unfair dismissal application to be filed:

•  At this time the Applicant believed that the Union would file the application on his behalf and left it to them to arrange the filing;

•  Between 16 October and 28 October, the Applicant did not hear further about his application but was attempting to obtain further evidence about allegations he intended to make in his application;

•  On 28 October, the Applicant again spoke with Ms Gibson and provided her with further information concerning his allegations. Ms Gibson provided that information to Mr Pierce; and

•  The Applicant was subsequently contacted again by Mr Pierce and was informed that the application had not been filed, that the statutory time limit had been missed and the application would be filed as soon as possible.

[19] Mr Pierce provided a statement of evidence and was not required for cross-examination. Mr Pierce confirmed that he received an email from Ms Gibson on or about 8 October 2020, requesting that he contact the Applicant. Mr Pierce contacted the Applicant who informed him that he wanted to challenge his dismissal by making an unfair dismissal application. Amongst other things, Mr Pierce advised the Applicant of the statutory timeframe and that the Applicant would have to provide his letter of termination and other material to the Union.Mr Pierce states that he spoke with the Applicant a further 3 – 5 times over the next week or two. On 16 October 2020, Mr Pierce received the email from Ms Gibson attaching the material provided by the Applicant, which Mr Pierce sent on to Ms Charmaine Vailepa, the Union’s legal assistant.

[20] Mr Pierce stated that that the time he was also dealing with another matter for a member and mistakenly referred to that member’s name in his email to Ms Vailepa. When Mr Pierce realised his error, he sent another email to Ms Vailepa attaching the documents relating to the other member. Mr Pierce believed that both matters would be attended to by the Union’s legal officers. On 28 October, Ms Gibson emailed Mr Pierce about the Applicant’s inquiry on the status of his application. Mr Pierce sent that request to Ms Vailepa. Mr Pierce stated that shortly after that email was sent, Ms Vailepa called and advised that there was no file for the Applicant because Mr Pierce’s second email had requested that the material he had previously sent be disregarded. Mr Pierce contacted the Applicant to discuss the error and the Applicant advised that he still wished to proceed. The application was filed the same day.

[21] Ms Vailepa also provided a statement of evidence supporting Mr Pierce’s account of events. Ms Vailepa was not required for cross-examination. In summary, Ms Vailepa’s evidence is that she received Mr Pierce’s first email at 9:17am on 16 October and noticed that the subject line of the first email referred to the Applicant but contained Mr Pierce’s instruction in relation to a different member. Ms Vailepa did not open the attachments to the first email. Ms Vailepa sent that email on to Mr Stephen Smyth and Mr Mitch Hughes for allocation. Ms Vailepa received Mr Pierce’s second email at 9:18am on 16 October. Ms Vailepa understood from this email that she was to disregard the subject and contents of the first email and that the second email needed action. Ms Vailepa sent the second email on to Mr Smyth and Mr Hughes requesting that they disregard the first email and that the second email contained the information for the relevant member. As a result, the Applicant’s material was “unwittingly disregarded”. Ms Vailepa stated that she received a further email regarding the Applicant on 28 October and contacted Mr Pierce when she could not find a file in relation to the Applicant. At that point, the error was identified and the application was filed.

[22] The Respondent submits that the reason for delay is not satisfactorily supported by the material. Mr Pierce’s evidence is that the Applicant was advised to return documents, including the relevant application form, to the Union. The evidence does not disclose that the Applicant ever did so. Further, despite being advised by the Union of the 21-day filing deadline, the evidence does not disclose that the Applicant made inquiries into the progress of his application.

[23] I accept the explanation for delay provided by the Applicant. The evidence of each witness is unchallenged and I have no reason to doubt what they each say. There are minor differences between the accounts but not to a level, or concerning centrally important issues, that I consider it undermines the weight of their evidence.

[24] I accept that on either 6 or 8 October (the exact date is not relevant) the Applicant gave instructions to Mr Pierce that he wished to make an unfair dismissal application. On the Applicant’s version he provided the all the requested documents to the Union on 16 October. On the same day, Mr Piece provided that information to the relevant person within the Union. All of this occurred within the statutory time limit.

[25] I do not consider it makes a difference whether the Applicant was asked to provide a completed application form or that there is no evidence that he did so. It is not challenged that the Applicant gave clear instructions the Union to file an unfair dismissal application, provided material to enable that to happen and “left it to them” to arrange filing. As a registered organisation representing the Applicant the CFMMEU was able to make the application on his behalf and did so. After giving his instructions, the Applicant followed up with the Union. I am also satisfied that the evidence of witnesses for the CFMMEU establishes a clear case of representative error and that the Applicant did not contribute to the delay.

[26] Accordingly, the Applicant has provided a reasonable explanation for the delay involving matters which are exceptional and this weighs in favour of the grant of a further period for the application to be made.

Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)

[27] It is not in dispute that the Applicant became aware of the dismissal on the date that it took effect – 29 September 2020. The Respondent submits that this factor weighs against an extension of time being granted. The Applicant submits that this factor is neutral. In the circumstances of this case, this is a neutral consideration.

Any action taken by the person to dispute the dismissal – s.394(3)(c)

[28] Other than the evidence outlined above, the Applicant did not take further steps to dispute his dismissal.

[29] The Respondent submits that the Applicant did not take any action to dispute his dismissal at the time it occurred. He did not “formally dispute” the dismissal at any time after dismissal until the filing of this application. The Applicant contacted the Respondent on 13 October to request that certain documents be sent to his representative. The Respondent complied with this request. The Respondent has led no evidence to support any of these submissions. The Respondent submits that this factor would weigh against the granting of an extension.

[30] In my view, this consideration includes circumstances where despite an application for an unfair dismissal remedy being made outside the required time, an employee has taken steps to dispute the dismissal directly with the employer which have put the employer on notice that such an application is possible. For example circumstances where an employee takes no steps to dispute a dismissal and then emerges from left-field after a lengthy period and makes an application, may weigh against a further period being granted, while circumstances where the employer was on notice that such an application would be made may weigh in favour of a further period.

Prejudice to the employer (including prejudice caused by the delay) – s.394(3)(d)

[31] The Respondent has not made any submission to demonstrate prejudice but points out that the absence of prejudice is not a sufficient basis to grant an extension.I cannot identify any prejudice that would accrue to the Respondent, other than the usual prejudice of being required to defend the application if I decided to allow a further period within which the application could be made. The delay is not so extensive that there would be any difficulty involving recollection of events or availability of relevant witnesses.

[32] The Respondent is correct that by itself the absence of prejudice would not warrant a conclusion that there are exceptional circumstances nor provide a proper foundation to grant an extension of time under s.394(3) of the Act. I agree with that submission and if I was to consider the absence of prejudice as favouring an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances. Accordingly I find that it weighs in favour of granting a further period although only slightly.

The merits of the application – s.394(3)(e)

[33] In the matter of Kornicki v Telstra-Network Technology Group⁹ the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”10

[34] In submissions, the Applicant accepts that his performance “may have dipped in the past 12 months” but submits that the drop was a result of “severe workplace bullying and harassment by his supervisor”.

[35] The Respondent submits that this is not a meritorious claim on the basis that the Applicant’s dismissal was “clearly for unsatisfactory performance and behaviour”. The lack of merit in the application is a “strong factor” that weighs against the grant of an extension. The Respondent has not relied upon any evidence to this submission.

[36] It may ultimately prove to be the case that the Applicant was “clearly” dismissed for unsatisfactory performance and behaviour but there is absolutely no evidence about the merits of this matters that could enable me to be make even a cursory assessment as to the Applicant’s prospects of success. Similarly, there is no evidence to support the Applicant’s submission that he was bullied and harassed by his supervisor.

[37] The only thing that is clear is that the parties are in dispute about the merits of the application and that it appears there will be a genuine contest of the facts at hearing. I consider this factor to be neutral.

Fairness as between the person and other persons in a similar position – s.394(3)(f)

[38] It is not clear whether this criteria requires consideration by the Commission of the position of other persons dismissed by the same employer or whether it also contemplates that the Commission consider the position of other persons generally who have sought further periods in which to make applications on similar grounds. The first approach may be relevant in cases where a number of employees are dismissed at the same time or by the same employer and some of those employees are granted a further period and some are not. The latter approach may require comparison of the circumstances of a particular applicant whose case is being considered by a member of the Commission to be compared with those of applicants in other cases considered by other members of the Commission where a further period is sought on the same or similar grounds.

[39] There are no other employees of the Respondent in the Applicant’s position. To the extent that this consideration requires a broader approach, representative error is an explanation for delay that has been found in a number of cases to constitute exceptional circumstances and an extension of time in the present case would not be out of step with the approach taken by the Commission in such matters. In the circumstances of this case, I consider this to be a neutral consideration.

Conclusion

[40] Having regard to the matters I am required to take into account under s. 394(3) of the Act, I am satisfied that there are exceptional circumstances in this case. This is so whether the various circumstances are considered individually or collectively. Accordingly, I am satisfied that this is a case in which the discretion to extend time should be exercised. An order extending the time for the application in U2020/14183 to 28 October 2020 will issue with this Decision. The matter will now be listed for Mention and Directions for hearing will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR725967>

 1   See Fair Work Act 2009 s.397.

 2   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]

 3   Ibid

 4   Long v Keolis Downer[2018] FWCFB 4109 at [40]

 5   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]

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 7   [2011] FWAFB 2728.

 8   Boakes v St Johns Community Care Limited [2020] FWC 2837 at [29] to [33].

9 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

10 Ibid.