Mr Ian Plath v Gladstone Ports Corporation Limited

[2019] FWC 5393

[2019] FWC 5393

FAIR WORK COMMISSION

DECISION

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

Mr Ian Plath
v
Gladstone Ports Corporation Limited
(U2019/4844)

COMMISSIONER SPENCER BRISBANE, 2 AUGUST 2019

Application for unfair dismissal remedy - jurisdictional objection - application filed out of time - s.394(3) extension of time - representative error - extension of time allowed.

[1] An application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy was filed by Mr Ian Plath (the Applicant) on 26 April 2019 on the grounds that the termination of his employment by from Gladstone Ports Corporation Limited (the Respondent) was harsh, unjust or unreasonable.

[2] The decision relates to the jurisdictional issue as to whether, an extension of time should be granted pursuant to s.394(3) of the Act, to allow the application, to be filed outside of the 21 day statutory time frame.

[3] The Respondent raised a jurisdictional objection, alleging that the present application was filed outside of the 21 day time limit. The Applicant had been dismissed on 4 April 2019, and the application was lodged with the Fair Work Commission (the Commission) on 29 April 2019, 4 days out of time. It is noted that 25 April was a public holiday so 26 April was the final date permitted for lodgement for the application.

[4] A hearing by telephone occurred on 26 July 2019. The Applicant was represented by Ms Sarah Lock of Qld Law Group and the Respondent was represented by Mr Jamie Wells of King and Wood Mallesons. Both parties were granted permission to appear pursuant to s.596(2) of the Act.

[5] The matter was listed for conciliation before the Commission however the conciliation was not successful and the Respondent indicated they wished to proceed to conference to determine the extension of time request. Directions were issued for the filing of material and the matter was listed for hearing in Brisbane to deal with the extension of time.

[6] The Applicant submitted that there were, “exceptional circumstances,” to warrant the Commission granting an extension of time. In particular, the Applicant’s legal representative alleged representative error on their behalf.

[7] Whilst not all of the submissions and evidence have been referred to in this decision, all of such have been considered.

LEGISLATION

[8] Section 394 of the Act 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.”

Summary of Evidence and Submissions of the Applicant

[9] The Applicant has requested that the Commission grant an extension of time pursuant to s.394(3) of the Act. It is submitted that the representative error resulting in the delay constituted an exceptional circumstance warranting the granting of an extension.

[10] The Applicant refers to the statement made in R v Kelly (Edwards) 1 where it was stated that:

“We must construe “exceptions 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 it regularly, or routinely or normally encountered.”

[11] The Applicant submits that an exceptional circumstance can include a single exceptional matter; a combination of exceptional matters; or a combination of ordinary factors which, although individually of no particular significance, when taken together are exceptional.

[12] In respect of the Applicant’s submission there was one primary circumstance that contributed to these submissions being made, which is set out below.

[13] The Applicant referred to the decision of McIntyre v Special Broadcasting Services Corporation T/A SBS 2 where Commissioner Cambridge permitted an extension of time and noted that the provision allowing for an extension of time should not be interpreted in such a way that it would deprive an individual of access to a fair hearing and his or her ‘day in court’.

[14] The above principle was cited in Michael Edwards v Tiger Airways Australia Pty Ltd T/A Tigerair 3where it was submitted by the Respondent to those proceedings that:

“Representative error cases tend to favour slips or simple errors by representatives including for example:

•  Filing the application on the wrong form;

•  Technical issues prohibiting timely lodgement by a representative;

•  Representative overlooking filing date; or

•  Incorrectly but reasonably filing in the wrong jurisdiction”

[15] The Applicant’s representative submits that in this case the representative error was a simple error as the application was incorrectly but reasonably filed in the wrong jurisdiction. The Applicant does not wish to be penalised or prejudiced because of the administrative issues out of his control, undertaken by his legal representative.

[16] The Applicant had submitted all prior documentation to his representative prior to the application being lodged with the QIRC on 26 April 2019.

[17] The Applicant made reference to Deputy President McCarthy’s decision of Mathew Palmer v RCR Engineering Pty Ltd 4where he permitted an extension of time, in circumstances where the Applicant’s representative in that matter had incorrectly lodged the application with the Western Australian Industrial Relations Commission (the WAIRC) and upon being made aware of this error, correctly lodged the application with the Commission within three days. The Applicant in this matter argued that this case is factually analogous to the present matter.

[18] The Applicants representative, Ms Lock, submitted a witness statement for the proceedings, stating that she lodged a Form 12A Affidavit and Application for Reinstatement with the Queensland Industrial Relations Commission (QIRC) on Friday, 26 April.

[19] Ms Lock stated that the Respondent is a Queensland Government owned corporation. It is a registered corporation that undertakes commercial activities and is wholly or partly owned by the state or local government. Queensland Treasury monitors the performance of all these Queensland Government owned corporations on behalf of the Treasurer, who is their shareholding Minister. Government owned corporations are bound by the regulatory framework that includes the Queensland Government Owned Corporations Act 1993.

[20] Ms Lock made the decision to lodge the documents with the QIRC, as the correct jurisdiction, as she was of the opinion that the Applicant was a State Government employee and as such both State Government employees and local council employees are covered within that jurisdiction.

[21] Subsequently the Application and associated documents were lodged with the QIRC within this jurisdiction’s allocated timeframe.

[22] The lodgement email sent to the QIRC on 26 April was tendered as evidence by the Applicant.

[23] On 29 April 2019 Ms Lock received an email from the QIRC Registry stating that the application could not be accepted as it had been filed in the wrong jurisdiction and that the application should have been filed with the Commission.

[24] Ms Lock immediately called the QIRC upon receiving this email and inquired as to the reason why the application had not been accepted.

[25] Ms Lock then prepared and submitted the correct Form F2 application for unfair dismissal remedy with the Commission on 29 April, within 12 hours, upon discovering that the Commission was the correct jurisdiction to lodge the matter. The application was submitted electronically at 11:37pm, with 23 attached supporting documents. At 11:40pm Ms Lock received an email from the Commission informing her that the file exceeded the sever limits.

[26] The application was then resent by Ms Lock via email and was accepted by the Commission at 12:07am on 30 April 2019.

[27] The Applicant’s representative submitted that this error in lodging the application rests solely with her as the representative, and she asserted that the Applicant had in no way caused the application to be filed out of time. The Applicant requested that the Commission grant an extension of time on this basis to permit the merits of the application to be heard before the Commission.

[28] The Applicant further submitted that Ms Lock’s conduct in causing the delay in filing the application created an exceptional circumstance that the Commission needed to consider before making its determination as to whether the application can be heard. Had the Applicant’s representative lodged the application in the correct jurisdiction on 29 April 2019, the application would have been received within the statutory time limit and the matter would have proceeded accordingly before the Commission.

[29] In closing the Applicant respectfully submits that an extension of time should be permitted on account that it was only representative error to blame for the delay, it was minimal delay and further there was minimal delay in relodging the matter and there was no prejudice caused to the Respondent due to this minimal delay.

Summary of Evidence and Submissions of the Respondent

[30] In relation to the reason for the delay the Respondent submitted that the representative error relied on by the Applicant is not in fact an error, rather the application was intentionally lodged with the QIRC.

[31] Additionally the Respondent asserted that is was an overreach for the Applicant to rely on administrative issues as a reason for the delay, and for them to claim that these issues were outside of the control of the Applicant’s legal representative.

[32] The Respondent acknowledged that representative error can, in some cases, explain a delay in filing an application, although they note that the explanation for the delay is merely one factor to be considered when exercising the discretion to grant an extension.

[33] The Respondent also noted that the Applicant has not distanced himself from any involvement in the error and subsequent conduct resulting in the delay of lodgement.

[34] The Respondent argued that the Applicant was made aware of his termination immediately upon the termination taking effect, rendering the Applicant, with the full 21 days (22 including the public holiday) to adequately prepare and file the material. The Respondent did not argue any prejudice from the late filing of the application, except that it refutes that it was served with the initial application filed in the QIRC.

[35] For these reasons the Respondent submits that an extension of time should not be granted

Consideration

[36] The recent Full Bench decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (‘Stogiannidis’)  5 expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers6 which had concluded that in order for ‘exceptional circumstances’ to be established, an Applicant must provide reasons for the whole of the period of delay in filing. In Stogiannidis the Full Bench said at [38]-[40]:

‘[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.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.’

[37] “The meaning of “exceptional circumstances” in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) 7 as follows:

“[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.

[14]Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.””

[38] All of the matters for the period after the date of termination, until the lodgement in the Commission have been considered. In accordance with s.394(3) the Commission must be satisfied that exceptional circumstances exist, taking into account the following criteria:

S.394(3)(a) the reason for the delay

[39] In Terms of the reason for the delay, the Applicant’s representative in the current circumstances submitted she was responsible for the primary reason for the delay in filing the application. The representative made an assessment of the Respondent’s business against the relevant jurisdiction and considered the Queensland Industrial Relations Commission was the appropriate jurisdiction for filing the application.

[40] The Applicant’s representative stated in her Witness Statement that she considered the nature of the Respondent’s business as follows:

“2. Gladstone Ports Corporation (Respondent) is a Queensland Government owned Corporation (“GOC”). It is a registered corporation that undertakes commercial activities and is wholly or partly owned by the state or a local government. Queensland Treasury monitors the performance of all these Queensland Government-Owned Corporations (GOCs) on behalf of the Treasurer, who is their shareholding minister. GOCs are bound by a regulatory framework that includes the Queensland Government Owned Corporations Act 1993.

3. The Applicant’s Legal Representative made the decision to lodge the documents with the QIRC, as the correct jurisdiction, as she was of the opinion that the Applicant was a State Government Employee and as such both State Government Employees and local Council employees are covered within this jurisdiction.”

[41] The Representative moved on the same day to file in the Fair Work Commission once notified by the QIRC that the application was lodged in the wrong jurisdiction. 8

S.394(3)(b) Where the person first became aware of the dismissal after it had taken effect

[42] The Applicant first became aware of the dismissal at the time of receipt of the termination letter.

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

[43] The Applicant had objected to the process in relation to allegations made against him prior to the dismissal. He had also made application to the ‘CCC’ with regard to the manner in which the investigation had occurred.

S.394(3)(d) prejudice to the employer (including prejudice caused by the delay)

[44] The Respondent did not argue any significant prejudice.

S.394(3)(e) the merits of the application

[45] The employer had set out in the termination correspondence that a series of allegations have been made against the Applicant. Neither party provided particularised submissions advancing on assessment of the merits, accordingly this matter is considered to be neutral.

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

[46] In addition there are no other employees who are submitted to be in similar positions.

Conclusion

[47] Taking into account all of matters above and the facts, this is a matter of representative error on the basis of interpreting the wrong jurisdiction for filing. These facts are commensurate with ‘exceptional circumstances’; they were sufficiently unusual, out of the ordinary course and uncommon; 9

“That representative error may constitute ‘exceptional circumstances’ for the purposes of s 394(3) of the Act (the unfair dismissal provisions), has been considered and accepted by the Commission and its predecessors in numerous cases on the subject. In Robinson v Interstate Transport Pty Ltd (‘Robinson v Interstate’) 10, a Full Bench helpfully set out this history at [24] to [25] 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 v Ringwood Private Hospital (1997) 74 IR 413 (‘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 Print Q0784 in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell v A & PM Fornataro t/a Tony's Plumbing Service[2011] FWAFB 466 found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act; McConnell v A & PM Fornataro t/a Tony's Plumbing Service[2011] FWAFB 466, at para [35]. 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.’’”

[48] The Applicant in the current circumstances was considered to be blameless. Accordingly pursuant to s.394(2) I exercise the discretion to permit the extension of time. I am satisfied this was a case of representative error, accordingly the time for filing the application is extended and the application is accepted.

[49] I Order accordingly.

COMMISSIONER

Appearances:

Ms Sarah Lock of Qld Law Group for the Applicant.

Mr Jamie Wells of King and Wood Mallesons for the Respondent.

Hearing details:

26 July 2019 by telephone.

Printed by authority of the Commonwealth Government Printer

<PR710971>

 1 [2000] QB 198 at 208.

 2   [2015] FWC 6768.

 3   [2017] FWC 4021.

 4   [2009] FWA 1431.

 5   [2018] FWCFB 901.

 6 (2010) 197 IR 403.

 7   [2011] FWAFB 975.

 8   Clark v Ringwood Private Hospital (1997) 74 IR 413 (Clark v Ringwood).

 9   Ho v Professional Services Review Committee No 295 [2007] FCA 388 at para 25.

 10   [2011] FWAFB 2728.