Mr Mark Robertson v Victorian Teachers Limited T/A Bank First
[2022] FWC 1868
•18 JULY 2022
| [2022] FWC 1868 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Mark Robertson
v
Victorian Teachers Limited T/A Bank First
(U2022/6360)
| COMMISSIONER CIRKOVIC | MELBOURNE, 18 JULY 2022 |
Application for an unfair dismissal remedy – extension of time application – representative error – extension granted
Mr Mark Robertson, (Applicant), made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Victorian Teachers Limited T/A Bank First (Respondent).
The matter was allocated to my chambers on 21 June 2022 and directions were issued to the parties for the filing of materials on 22 June 2022. Following the receipt of the Applicant’s materials, the Respondent submitted that “Bank First confirms that it has no submissions to make regarding the application for extension of time in this matter.” In response, my Chambers contacted the parties to request confirmation from the Respondent that it did not contest “the Applicant's evidence relating to the application for an extension of time” and that the parties were content for the matter to be determined on the papers. The Respondent confirmed that it “does not contest the Applicant's evidence” as to the extension of time application and both parties consented to the matter being determined on the papers. Accordingly, I have determined the matter on the basis of the unchallenged written material before me.
An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.
It is not in dispute and I am satisfied that the dismissal took effect on 17 May 2022. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by 11:59 pm on 7 June 2022. The application, having been filed at 4:14 pm on 16 June 2022, is 9 days late.
The Commission may exercise its discretion to allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters set out at subsection 3 of section 394 of the Fair Work Act. Those matters are:
(a) the reason for the delay;
(b) whether the Applicant first became aware of the dismissal after it had taken effect;
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.
The first matter is the reason for the delay
As stated above, for the application to have been made within 21 days after the dismissal took effect, it needed to have been made by 11:59 pm on 7 June 2022. As a majority of the Full Bench noted at paragraph 12 of its decision in Shaw v ANZ Bank [2015] FWCFB 287, the delay is the period commencing immediately after that time until 4:14 pm on 16 June 2022, when the application was lodged with the Commission, although circumstances arising prior to that delay may be relevant to the reason for the delay.
As stated by the Full Bench in Stogiannidis, the reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances. Further, an Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.
The Applicant relies on representative error as the reason for the delay and states that:
· On the afternoon of his dismissal, the Applicant had a conversation with his FSU representative Mr Povey and they discussed the Applicant’s options. The Applicant became aware of the 21-day time limit during that conversation.
· On the morning of 19 May 2022, he asked Mr Povey to proceed with the unfair dismissal application and to provide him with a list of paperwork that would need to be provided to make this happen.
· On the morning of 23 May 2022, he had a conversation with Mr Povey to work through the details of his unfair dismissal application.
· On 27 May 2022 he spoke with Mr Povey about the progress of the unfair dismissal application and confirmed what supporting material would be provided with the application.
· On 1 June 2022 he again spoke with Mr Povey to check the particulars of his unfair dismissal application thus far.
· On 2 June 2022 he spoke with Mr Povey again a couple of times about the details of his unfair dismissal application.
· On 6 June 2022 he attempted to contact Mr Povey by telephone and left a message and followed up with an email about lodging his unfair dismissal application.
· On the morning of 7 June 2022 Mr Povey copied the Applicant into an email to the Commission forwarding the unfair dismissal application. The Applicant spoke to Mr Povey later that day to discuss the conciliation conference.
· He attempted to contact Mr Povey between 10 and 15 June 2022 but the calls went to voicemail and the emails returned out of office notifications.
· It was only when he spoke with Mr Povey on 16 June 2022 that he found out that his application had not been received by the Commission within time.
Mr Povey’s witness statement is largely consistent with the Applicant’s witness statement. Mr Povey states that he mistakenly sent the Applicant’s application to an email address that was not the Commission’s address, that the incorrect email did not bounce back, and that when he became aware that the incorrect email address was used, he re sent the application to the correct Commission email address. Mr Povey also states that it was his responsibility to prepare and send the Applicant’s unfair dismissal application to the Commission within time and that the only reason that it was delayed was his failure to check that the correct email address was used.
On the material before me, I find that the reason for the delay is Mr Povey’s failure to check that the correct email address was used when filing the Applicant’s unfair dismissal application.
Next, I must consider whether the Applicant first became aware of the dismissal after it had taken effect
Based on the material before me, I am satisfied dismissal took effect on 17 May 2022 and that the Applicant became aware of the dismissal on that date.
The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal
The Applicant submits and I accept that he took some action to dispute the dismissal in the form of engaging with Mr Povey actively 2 days after his dismissal and remained active in pursuing his unfair dismissal application.
I must now consider the prejudice to the employer (including prejudice caused by the delay)
The Applicant submits that the Respondent has suffered no prejudice as a result of the lateness of the application and that the delay is a relatively short period of time so that any prejudice caused by the delay would be minimal.
Having regard to the submissions above, in all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted. I note that the mere absence of prejudice is an insufficient basis to grant an extension of time.
I will now turn to the merits of the application
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
The Respondent submits that the Applicant was dismissed as a consequence of his decision not to become vaccinated against COVID-19 and as such, was unable to meet the inherent requirements of his role.
The Applicant contends that the Respondent unreasonably refused to allow him to continue working from home, and that had he been allowed to continue to work from home he would not have breached the Victorian Government Public Health Direction, nor would he have posed any health risk to his colleagues.
The merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. As noted by the Full Bench in Nulty v Blue Star Group, [2011] FWAFB 975, it is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter” in an application for an extension of time. Although the Full Bench was considering an extension of time in the context of a general protections application, the principle applies equally to unfair dismissal applications.
In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position
The Applicant submits that the issue of fairness does not arise in this matter.
Having regard to the submission above, in all the circumstances and on the materials provided, I consider the issue of fairness neutral in this matter.
I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account my findings
As set out by the Full Bench at paragraph 13 in the decision of Nulty that I have already referred to, 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. Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.
The Applicant indicates that the reason for the delay in lodging his application is representative error. The approach taken by the Commission where representative error is relied upon to explain the late lodgment of an application is set out by a Full Bench in Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347 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 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 in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. 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 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.
(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.”
(references omitted)
But for the representative error, the application would have been filed within the 21-day statutory period. Instructions were given, the application was prepared, and an email attaching the application was sent, albeit to the wrong email address, before the 21-day period expired. The Applicant should not be disadvantaged because his representative failed to use the correct email address to attach the application and then again failed to check the status of the application for several days that followed. In all the circumstances, I am satisfied that the whole of the delay in filing the application (12:00 am on 8 June 2022 to 4:14 pm on 16 June 2022) is to be attributed to the errors made by the Applicant’s representative. I am also satisfied that the Applicant took positive steps to enquire as to the state of his unfair dismissal application on a number of occasions following the provision of instructions by him to Mr Povey to lodge his application. No part of the delay was occasioned by the conduct of the Applicant; he is blameless for the delay.
I am satisfied that the Applicant has provided an acceptable explanation for the delay. This weighs in favour of a conclusion that there are exceptional circumstances.
Having regard to all of the matters that I am required to take into account under s.394(3), I am satisfied that the requisite exceptional circumstances exist. In making this evaluative assessment I have taken into account each of the factors in paragraphs 394(3)(a) to (f). The most persuasive factor in the circumstances of this case is the fact that the Applicant has provided an acceptable and reasonable explanation for the whole of the delay in lodging the application. I have found that the Applicant took some action to dispute the dismissal, the other factors are neutral in this matter. I am also persuaded that it is appropriate in the circumstances of this case to exercise my discretion to extend the time for the Applicant’s application to be lodged. In my view, it is in the interests of justice that the Applicant, whose conduct did not contribute to the delay in lodging his application, be permitted to pursue his unfair dismissal case. In my view, the circumstances of this case warrant the granting of an extension of time.
As I am satisfied that there are exceptional circumstances, and there is a basis for the Commission to allow an extension of time, directions will be issued for the filing of material to determine the merits of the Applicant’s unfair dismissal application.
COMMISSIONER
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