Mr Lance Lawler v Regional Power Corporation T/A Horizon Power

[2011] FWA 2661

[2011] FWA 2661

FAIR WORK AUSTRALIA

DECISION

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

Mr Lance Lawler
v
Regional Power Corporation T/A Horizon Power
(U2011/5789)

COMMISSIONER CLOGHAN PERTH, 9 MAY 2011

Application for unfair dismissal remedy.

[1] On 8 March 2011, Mr Lance Lawler (“the Applicant”) made application to Fair Work Australia (FWA) alleging that he was unfairly dismissed from his employment with Regional Power Corporation trading as Horizon Power (“the Employer”).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).

[3] The matter was unable to be resolved at conciliation and referred to me for arbitration on 4 April 2011.

[4] On 6 April 2011, I wrote to the Applicant’s representative advising him that s.394 requires the Applicant to make application to FWA for a remedy for unfair dismissal; however, the application must be made within fourteen (14) days after the dismissal effect.

[5] Mr Lawler alleged unfair dismissal took effect on 10 February 2011. The application to FWA was on 8 March 2011.

[6] Section 394 of the FW Act enables the Tribunal to allow a further period beyond the fourteen (14) days, if it is satisfied that there are exceptional circumstances taking into account the following criteria in s.394(3) of the FW Act which are as follows:

(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.

[7] On 18 April 2011, I received a submission from the Applicant as to why I should extend the time to make the application to 8 March 2011. On 28 April 2011, I received a response from the Employer’s representative resisting any extension on time to lodge the application.

APPLICANT’S SUBMISSION

[8] Essentially, the reason for the delay is that, “due to a technical error in the office of the solicitors for the applicant...the commencement of a client/lawyer relationship” was not established “until more than 14 days after the dismissal had taken effect”.

[9] The client/lawyer relationship was established around 1 March 2011 and the application lodged on 8 March 2011.

[10] The application, when the necessary details such as names, addresses, date of dismissal, etc are excluded, consists of reference to copies to three (3) attached letters -- two (2) from the Employer to the Applicant and one (1) from the Applicant to the Employer. The copies of the letters were not attached to the application and were received by the Tribunal following the Employer’s response to the application on 23 March 2011. I note for completeness that the application was signed by the Applicant’s representative on 1 March 2011 but not forwarded to the Tribunal until 8 March 2011.

[11] Mr Lawler became aware of the allegations which led to his dismissal both orally and in written form on 7 February 2011. Mr Lawler was informed of his dismissal in writing on 10 February 2011.

[12] Sometime after 7 February 2011, and before Mr Lawler was dismissed on 10 February 2011, he provided a response to the allegations. The only action taken by Mr Lawler to dispute the dismissal prior to lodging the application was to seek legal advice on 18 February 2011.

[13] Mr Lawler contends that there is no prejudice to the Employer caused by the delay and, based on the merits of the application, there was not a valid reason to terminate the Applicant’s employment.

[14] I note the Applicant states that the conclusion adopted in Mr Thomas Bee v Wesfarmers Kleenheat Gas Pty Ltd ([2009] FWA 1471 PR991411) (“the Kleenheat case”) should not be followed.

EMPLOYER’S SUBMISSION

[15] Put shortly, the Employer’s submission is that:

• there are no exceptional circumstances to warrant an extension of time being granted for the application to be accepted; and



• the dismissal was on 10 February 2011 and the Employer refutes any suggestion by the Applicant that it was earlier; and



• with the exception of seeking legal advice and lodging the application, the Applicant has not disputed the dismissal; and



• it will suffer some degree of prejudice by the delay and further prejudice in defending an application which is without merit and lodged out of time; and



• the Applicant was dismissed for serious misconduct; and



• in view of the approach adopted by FWA generally in rejecting other requests for an extension of time, it would be unfair to those other applicants in similar positions.

DISCUSSION AND CONCLUSION

[16] The starting point for any application pursuant to s.394 of the FW Act alleging unfair dismissal, is that the application be made within fourteen (14) days after the dismissal took effect. This starting point is the primary policy position of the Parliament as reflected in the FW Act.

[17] Parliament has also adopted, as a policy position, that the Tribunal be given the discretion, if it is satisfied that exceptional circumstances exist, to allow a further period beyond the fourteen (14) days. However, time is of the essence in any application alleging unfair dismissal.

[18] There is no dispute between the parties that on 10 February 2011, Mr Lawler received correspondence from his Employer which stated that he was summarily dismissed for serious misconduct. Within fourteen (14) days after his dismissal, the Applicant had to lodge the application. As Mr Lawler did not meet the statutory timeline, the burden falls on him to make out the case for “exceptional circumstances”.

[19] The Full Bench of the AIRC in Davidson v Aboriginal & Islander Child Care Agency (Q0784, 12 May 1998) (“the Davidson decision”) summarised a number of propositions flowing from an earlier Full Bench decision in Clarke v Ringwood Private Hospital 74 IR 413, 22 September 1997 (“the Clarke decision”) as follows:

“In Clarke 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 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.” (my emphasis)

[20] The majority of the Full Bench in McConnell v A & PM Fornataro T/A Tony’s Plumbing Service[2011] FWAFB 466 considered that these considerations continue to be applicable to extensions of time under the FW Act.

[21] The Applicant’s submissions merely state that on 18 February 2011, the Applicant sought legal advice. No specification is given as to the nature of the legal advice sought (despite the natural implication that such advice concerned his dismissal), nor is there any indication whether specific instructions were given by the Applicant in relation to the filing of an application for unfair dismissal, or any assurances that may have been given by the Applicant’s representative that such an application would be filed. The earliest date by which I am able to make a finding (by implication) that the Applicant had instructed his representative to make an application for unfair dismissal remedy is 1 March 2011, the date the Applicant’s representative reportedly commenced drafting the application (and 19 days after the dismissal took effect).

[22] In the Applicant’s submissions for an extension of time, it is not documented if or when Mr Lawler became aware of the statutory time limit for lodging the application. If the Applicant was unaware of the time limit prior to meeting with his lawyer, he could and should have taken reasonable steps to discover what the statutory provisions are relating to the time limit. From Mr Lawler’s response to the allegations and his positions with the Employer, he appears to have the capacity to comprehend a requirement such as a statutory time line.

[23] If he was advised of the statutory deadline by his lawyer on 18 February 2011, I am unaware of what attempts he made to instruct his lawyer to meet the deadline. If he was relying on his lawyer to meet the statutory deadline, which his lawyer did not, that situation is only one factor among others which I have to consider pursuant to s.394(3) of the FW Act.

[24] From the Applicant’s submission, Mr Lawler’s representative asserts that the delay was due to a “technical error”, whatever that means, in the solicitor’s office. However, once “certain documents” were received around 1 March 2011 the application was made in due haste on 8 March 2011. In my judgement, seven (7) or eight (8) days to file a “minimalist” application does not fall within the definition of “due haste”, that is, quickly, hurriedly or with urgency. Further, it appears that more time was spent on establishing the client/lawyer relationship, than considering and meeting the statutory time limit, or for that matter, preparing and filing the application (especially one which did not enclose the documents referred to).

[25] Mr Lawler may have reason to complain about the actions of his lawyer and that he should not be prejudiced by these circumstances. However, the Applicant has not made any submission as to when he became aware of the statutory time limit. Lack of knowledge and action, in any application, is almost always contrary to the attribution of exceptional circumstances for a delay. To adopt a course of inaction, when no other circumstances exist, is not exceptional.

[26] The Applicant contends that there is no prejudice to the Employer to have the application heard and determined on its merits. While the Employer opposes this assertion, the Industrial Relations Court in Brodie-Hanns v MTV Publishing Ltd (1955) 67 IR 298 at 229-300, make it clear that the “mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time”.

[27] As I have noted in previous Decisions, and do so again, I have some reservations regarding applying the provisions in the FW Act concerning the merits of the application as set out in s.394(3)(e) without the benefit of a hearing, receiving submissions and having evidence tested. However, I have looked at the nature of the application and considered its merits.

[28] With respect to the fairness between the Applicant and other persons, I have considered the Applicant’s request not the follow the Kleenheat case.

[29] The fact that Mr Lawler has missed the statutory time limit as a result of a technical error in his solicitor’s office, or in my view, a lack of haste in filing the application, is only one factor and not decisive of whether I am satisfied there are exceptional circumstances. As stated in Clarke and Davidson decisions, “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”. In some respects, the likelihood of achieving the time limit had been stretched by the Applicant by him taking until 18 February 2011 to seek legal advice (8 days into a 14 day time limit). No other relevant evidence has been provided as to the Applicant’s post dismissal conduct. Certainly, the actions of his solicitor’s office and their client engagement process made meeting the statutory deadline impossible. This was further exacerbated by the time taken to file the application.

[30] While some fault may be attributed to Mr Lawler’s lawyer, I have been given no indication that the Applicant took appropriate action to inform himself of the statutory provisions.

[31] In conclusion, on the basis of the Applicant’s submission, I do not consider this a straightforward case of representative error sufficient to determine that there are exceptional circumstances. Due to the nature of the submissions, I am being asked to assume some matters in deciding whether to grant an extension of time or not. As I stated towards the beginning of this Decision, the burden rests with the Applicant to demonstrate “exceptional circumstances”. On the material that has been provided to the Tribunal, I am not satisfied that exceptional circumstances existed to exercise my discretion to extend the time limit to 8 March 2011.

[32] For the above reasons, an Order will be issued dismissing the application as it was filed out of time.

COMMISSIONER

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