Mr Matthew Boakes v St Johns Community Care Limited
[2020] FWC 2837
•8 JUNE 2020
| [2020] FWC 2837 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Matthew Boakes
v
St Johns Community Care Limited
(U2020/3761)
DEPUTY PRESIDENT ASBURY | BRISBANE, 8 JUNE 2020 |
Application for an unfair dismissal remedy.
[1] This Decision concerns an application by Mr Matthew Boakes under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by St Johns Community Care Limited. Mr Boakes’ employment was terminated on 3 March 2020. It is not in dispute that the dismissal took effect on that date. The application was made on 27 March 2020. The Respondent objected to the application on the basis that it was filed outside the period required in s. 394(2) of the Act.
[2] 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). The application was made three days outside the time required in s.394(2) of the Act. It is therefore necessary to determine whether a further period should be allowed under s. 394(3) of the Act for the application to be made.
[3] Mr Boakes is represented by Mr Aaron Santelises of the Australian Workers’ Union (the AWU). On 10 March 2020, the Associate to Vice President Catanzariti sent correspondence to the Applicant advising that the application had been received outside of the 21 day legislated time frame and that before the merits of the application could be determined a decision would need to be made by the Commission to extend the time in which the Applicant was allowed to lodge the application. The Applicant was also advised that the Commission may extend the time period for lodging an unfair dismissal application only if satisfied that there were exceptional circumstances and setting out the matters the Commission is required to consider in deciding whether to grant a further period under s.394(3) of the Act.
[4] The AWU responded to the correspondence on behalf of the Applicant on 18 May 2020 by filing an outline of submissions in relation to a further period being granted to Mr Boakes and witness statements made by Mr Boakes 1 and Mr Royce Grimwade2, Organiser for the AWU. Mr Boakes relies on representative error on the part of the AWU as the reason for the delay in making his application.
[5] The matter was allocated to me for hearing on 19 May 2020. Directions were issued that gave Mr Boakes an opportunity to file any additional material in support of a further period being granted, or to indicate whether he wished to rely on the material filed on 18 May 2020. A hearing was listed for 28 May 2020. The Respondent was given an opportunity to file material by 26 May 2020 in relation to whether the further period should be granted, if it wished to do so.
[6] Correspondence was received on 21 May 2020 from the Respondent’s representative, Ms Penny Brenton of Miles Witt Partnership stating that the Respondent sought to withdraw its jurisdictional objection, that the application was filed outside of the statutory timeframe in s.394(2) of the Act. On 22 May 2020, Mr Jack Harding of the AWU sent correspondence to my chambers in response, enquiring as to whether a hearing was required given the Respondent did not press the jurisdictional objection.
[7] On 26 May 2020 I caused correspondence to be sent to the parties expressing a provisional view that, subject to the provision of a document referred to in the material filed by the AWU, the matter could be dealt with on the material currently before the Commission as there did not appear to be any disputed issues of fact.
[8] On 27 May 2020, the AWU provided a version of the document referred to in its material. I caused correspondence to be sent to the parties indicating that the hearing date would be vacated and I would determine whether Mr Boakes should be granted a further period of time in which to file his application on the material before the Commission, and that if the Respondent objected to this course it should indicate its position as soon as practicable.
[9] Correspondence was received from Ms Brenton stating the Respondent did not object to the hearing date being vacated. Accordingly, I proceed to deal with the issue of whether Mr Boakes should be granted a further period in which to file his application on the basis of the material on the file.
EVIDENCE AND SUBMISSIONS
[10] Mr Boakes relies on representative error on the part of the AWU as being the reason for the delay. The evidence and submissions can be summarised as follows. As previously noted, it is not in dispute that Mr Boakes’ employment was terminated on 3 March 2020. Mr Boakes was dismissed from his position as a Community Services Facilitator for breaching material terms of his employment contract, namely, failing to maintain a Blue/Yellow Card with the Queensland Government’s Blue Card Services and for failing to inform St John’s that his Blue/Yellow Card had been suspended.
[11] Mr Boakes states that he contacted Mr Grimwade on the date his employment was terminated and instructed him to file an unfair dismissal application on his behalf. Mr Boakes confirmed his instructions on 6 March 2020, and that Mr Grimwade responded by email on that date confirming that he would refer the matter onto the advocates team of the AWU to “undertake the Unfair Dismissal Application.”
[12] Mr Grimwade states that on or around 9 to 12 March 2020, he filed Mr Boakes’ Unfair Dismissal Application Brief on an internal system operated by the AWU known as the ARMS system. The ARMS system is utilised by the AWU to refer industrial matters that require litigation through to its team of industrial advocates. Mr Grimwade states that he did not receive any error message when he sent the application brief to the ARMS system which did not cause him to believe that it had not been referred to the advocates team.
[13] I requested the AWU provide a copy of the application brief that was submitted through the AWU’s ARMS system. The AWU provided a blank copy of the brief/ ARMS form completed by Mr Grimwade, on the basis that the ARMS system does not generate a copy of the brief when information is entered into the ARMS system. The blank copy shows that the user is required to enter personal details of the member who is making the unfair dismissal; details of the employer; employment details including when the member commenced employment and was dismissed from employment; whether the application was being made within 21 calendar days; and any other supporting documentation.
[14] Mr Boakes states he followed up with Mr Grimwade in relation to his unfair dismissal application on 12, 19 and 26 March 2020. Mr Boakes tendered email correspondence sent to Mr Grimwade on these dates, requesting an update as to his unfair dismissal application.
[15] Mr Grimwade responded to these queries by advising Mr Boakes’ that the matter had been referred to the AWU’s advocates team. On 26 March 2020, Mr Grimwade sent correspondence to Mr Boakes stating that it was strange that he had not received any update yet and that he would chase up the application with the advocates team.
[16] On either 26 March or 27 March 2020 Mr Grimwade contacted the AWU’s IT support to follow up with Mr Boakes’ application as he had not received any update about it. Mr Grimwade was advised that there was no record of the application being filed in the ARMS system.
[17] It is Mr Grimwade’s evidence that on 27 March 2020 he also contacted Mr Barry Watson, Senior Industrial Advocate for the AWU, and caused Mr Boakes’ application to be filed in the Commission that day.
[18] The AWU submits on behalf of Mr Boakes that the reason for the delay is representative error on the part of Mr Grimwade, and that Mr Grimwade had received and confirmed instructions from Mr Boakes to file an unfair dismissal application, and believed that it had been escalated through the AWU’s ARMS system until he discovered the error on 26 March 2020 after receiving an email from Mr Boakes requesting a further update.
[19] The AWU submits Mr Boakes took all reasonable steps to dispute his dismissal, and that Mr Boakes contacted the AWU on the day he was dismissed and instructed Mr Grimwade to file an unfair dismissal application on his behalf. Further, it submits Mr Boakes followed until with the application on 12, 19 and 26 March 2020 to ensure that it was progressing.
[20] In this regard, the AWU submits that Mr Boakes should not be disadvantaged due to the error of his representative in circumstances where he took all reasonable steps to provide relevant information to the AWU within the 21 day timeframe. The AWU refers to a decision of Commission Lee in Phan v GJK Facility Services Pty Ltd 3 in support of this position.
[21] The AWU submits there is no prejudice to the Respondent should the Commission exercise discretion to extend the time to file the application and that the merits of Mr Boakes’ application shows “there is a serious question to tried” and that Mr Boakes should have an opportunity to put forward his case.
[22] In relation to the consideration of fairness between the person and the other persons in a similar position, the AWU submits that this criteria is relevant when the facts of this case are compared to similar circumstances of other persons where an extension of time has been granted,
CONSIDERATION OF WHETHER A FURTHER PERIOD SHOULD BE GRANTED
The approach to deciding whether a further period should be granted
[23] As previously noted, s. 394(2) of the Act requires that an unfair dismissal application under s. 394 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 394(3) of the Act. Section 394(3) sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application to be made as follows:
“(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.”
[24] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:
• out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
• involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional.4
[25] 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.5
[26] The assessment of whether “exceptional circumstances” exist requires a consideration of all of the relevant circumstances. As a Full Bench of the Commission observed in Stogiannidis v Victorian Frozen Foods Distributors t/as Richmond Oysters (considering similar provisions in s. 366(2) of the Act):
“[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.”6
[27] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application and does not include the period from the date of the dismissal to the end of the 21 day period.7 However, the circumstances from the time of the dismissal must also be considered and ultimately a decision made as to whether those circumstances are exceptional circumstances.8
[28] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable.9 The circumstances from the time of the dismissal must also be considered and ultimately whether the reason for the delay or part of it constitutes exceptional circumstances.10 I turn now to consider each of the matters in s.394(3) of the Act.
Reasons for the delay – s.394(3)(a)
[29] The reason for the delay advanced on behalf of Mr Boakes is representative error. Generally parties who place matters in the hands of a representative such as a lawyer, paid agent or union, and take 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.
[30] In Robinson v Interstate Transport Pty Ltd,11 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.
[31] 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.12 Representative error can include inactivity or carelessness of an applicant’s representative.13 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.
[32] 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.
[33] 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.
[34] In the present case, I am satisfied that Mr Boakes took reasonable steps to dispute his dismissal and gave instruction well within the 21 day timeframe for the AWU to file an unfair dismissal application on his behalf. Further, Mr Boakes communicated with the Union within the 21 day timeframe, on 12 March and on 19 March 2020, seeking an update on his unfair dismissal application. Mr Boakes sought a further update on 26 March 2020 when no response was received from Mr Grimwade to the correspondence sent on 19 March 2020. This is despite the fact that, in my view, it is not necessary that Mr Boakes communicate with the Union to ensure that the application was filed within time once he had given the instruction in a timely manner.
[35] I am also satisfied that the reason for the delay was wholly attributable to representative error on the part of Mr Grimwade. While I accept that Mr Grimwade had reasonably believed the application had been progressed through the AWU’s ARMS system, the response of Mr Grimwade to Mr Boakes’ correspondence seeking updates to the progress of his application leaves much to be desired. Mr Grimwade advised Mr Boakes on 12 March 2020 that the application was with the AWU’s advocates team in Brisbane, and that he should hear from them probably late next week. Mr Boakes sent a further enquiry to Mr Grimwade on 19 March 2020 asking that a further update be provided as soon as possible. From the email correspondence tendered with Mr Grimwade’s statement it does not appear that Mr Grimwade responded to Mr Boakes, until Mr Boakes contacted him again on 26 March 2020.
[36] By this stage the application was out of time. If Mr Grimwade had made more reasonable enquiries on 19 March 2020 when Mr Boakes requested an update on his application be provided as soon as possible, the error in filing the application brief through the ARMS system would have been identified and the application filed within the 21 day timeframe. Regrettably, this has now caused further delay to Mr Boakes having his unfair dismissal application dealt with.
[37] This is a clear case of representative error and I am satisfied that this error is an acceptable explanation for the delay. This weighs in favour of Mr Boakes being granted a further period to make the application
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
[38] It is not in dispute that Mr Boakes was aware that the termination of his employment took effect on 3 March 2020. While this consideration does not provide a basis for a further period to be granted, it is a neutral consideration in the present case.
Any action taken by the person to dispute the dismissal – s.394(3)(c)
[39] It is not in dispute that Mr Boakes took steps to dispute the dismissal by instructing his Union representative to file an unfair dismissal application. I also note that Mr Boakes did not give any indication to St John’s that he disputed his dismissal until his application was filed. I also consider this to be a neutral factor, particularly in circumstances where the delay is not extensive.
Prejudice to the employer (including prejudice caused by the delay) – s.394(3)(d)
[40] The length of delay is short, with the application being filed three day’s out of time. There is no apparent prejudice to St John’s because of the delay other than it will be required to defend an unfair dismissal application. While not determinative, the matter of absence of prejudice weighs in favour of the exercise of discretion to grant a further period to Mr Boakes – albeit slightly.
The merits of the application – s.394(3)(e)
[41] In the matter of Kornicki v Telstra-Network Technology Group14 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.”15
[42] After considering the material filed by the parties it is clear that there are factual disputes between the parties. I am not satisfied that the application is without merit so that this factor weighs against the grant of a further period. Neither am I satisfied that there is such apparent merit that it weighs in favour of an extension. Merit is a neutral factor in this case.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
[43] 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.
[44] Applying the latter approach to the present case, I also consider there are a significant number of cases where a further period has been granted on the basis of representative error being found to be an acceptable reason for delay weighing in favour of a finding that there are exceptional circumstances. This is a matter that weighs in favour of granting a further period, albeit slightly.
CONCLUSION
[45] After weighing the matters in s. 394(3) of the Act, I am satisfied that there are exceptional circumstances justifying Mr Boakes being granted a further period in which to make his unfair dismissal application. I am also satisfied that in all of the circumstances the discretion to grant a further period in which to make an unfair dismissal application should be exercised in favour of Mr Boakes. I grant a further period for Mr Boakes to make his unfair dismissal application in U2020/3761 to 27 March 2020. An Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR719780>
1 Statement of Matthew Boakes 14 May 2020
2 Statement of Royce Grimwade dated 13 May 2020.
3 [2017] FWC 60
4 Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.
5 Nulty v Blue Star Group [2011] FWAFB 975.
6 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [38] – [39].
7 Stoginniadis op. cit. at [22].
8 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
9 Ibid at [15].
10 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
11 [2011] FWAFB 2728.
12 Ibid at [25].
13 Clark v Ringwood Private Hospital (1997) 74 IR 413.
14 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
15 Ibid.
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