Mr Nathan Bice v Yarra Advantage Pty Ltd T/A Yarra Services

[2014] FWC 7536

[2014] FWC 7536

FAIR WORK COMMISSION

DECISION

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

Mr Nathan Bice
v
Yarra Advantage Pty Ltd T/A Yarra Services
(U2014/12765)

COMMISSIONER GREGORY MELBOURNE, 9 DECEMBER 2014

Application for relief from unfair dismissal.

Introduction

[1] Mr Nathan Bice was dismissed from his employment with Yarra Advantage Pty Ltd t/asYarra Services(“Yarra Services”) on 29 August 2014. He had been employed since 24 July 2013 in the role of Business Development Manager. In January this year he was promoted in his role and took on some additional duties.

[2] However, in August of this year the business was significantly impacted by one of its major debtors becoming insolvent. As a consequence it was required to make a number of employees, including Mr Bice, redundant.

[3] Mr Bice then sought legal advice about pursuing an unfair dismissal application and had an initial consultation with the firm of Hymans Solicitors on 12 September, 13 days after his dismissal. However, his application was not lodged with the Commission until 23 September, 4 days after the 21 day period provided for in s.394(2)(a). The delay was apparently due to the failure of his Solicitor to file the application within the requisite time period.

[4] Mr Bice now seeks additional time in which to make his application.

[5] It is also noted that the matter was originally set down for hearing on 24 October. However, after submissions and witness statements were filed in accordance with the directions issued the parties agreed that the matter could be determined “on the papers.” Hymans solicitors acted on behalf of Mr Bice. Employsure Pty Ltd acted on behalf of Yarra Services.

The Issue to be Determined

[6] Section 394(3) of the Act provides that the Commission may extend the time for filing if it believes there are “exceptional circumstances” to warrant an exercise of this discretion 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.” 1

[7] Therefore, are there “exceptional circumstances” existing in this matter to warrant the Commission exercising its discretion to grant Mr Bice additional time in which to make his application.

The Evidence and Submissions

[8] Mr Charlie Bulos is employed by the firm of Hymans Solicitors. He said Mr Bice had an initial consultation with another solicitor from the firm, Mr Di Donato, on 12 September. As a consequence of the client’s instructions Mr Bulos was required to prepare and file an unfair dismissal application on behalf of Mr Bice. After preparing the application Mr Bice again attended the office on 18 September to sign the application.

[9] Mr Bulos said he then left the application with another staff member, together with a covering letter, for both to be faxed to the Commission registry. However, on 23 September after having received no receipt confirming the application had been lodged Mr Bulos asked another staff member to check whether the application had been received by the Commission. When that employee was told the Commission had no record of having received the application Mr Bulos arranged for the application to be faxed. Mr Bulos also said he has since spoken to the employee with whom the original covering letter and application form were left to be sent, however, that person has no recollection of having seen the document. Mr Bulos also acknowledged Mr Bice left the firm’s office on 18 September having given clear instructions that an unfair dismissal application was to be filed on his behalf in accordance with the requirements of the Act.

[10] Mr Bice confirmed he attended Hymans Solicitors on 18 September to sign the application and left with the understanding it was to be lodged that day. He said he was then informed by Mr Bulos on 24 September that there had been a delay in filing, but the application had now been lodged.

[11] The submissions provided on behalf of Mr Bice state the matter is a clear case of “representative error,” and “It is hard to imagine circumstances in which an applicant could be more blameless than the present case.” 2

[12] The submissions continue to make reference to the matters in s.394(3) that the Commission is required to take account of. In regard to the reason for the delay Yarra Services relies on the decisions in Robinson v Interstate Transport Pty Ltd 3(“Robinson”) and Clark v Ringwood Private Hospital4 (“Clark”) to submit that representative error, where the Applicant is blameless, can constitute “exceptional circumstances” to warrant an extension of time being granted to make application. The submission concludes by indicating:

“It would impose a harsh injustice upon the Applicant to deprive him of his statutory recourse because of events which were entirely beyond his control.” 5

[13] The submission continues to indicate that there is no issue to do with delayed notice of the dismissal or a delay in acting to dispute the dismissal. Mr Bice also submits the period of delay is too short to suggest Yarra Services is going to be prejudiced if additional time is granted.

[14] In regard to the merits of the application Mr Bice takes issue with the submission his termination was a case of “genuine redundancy,” and submits it did not occur as a result of closure of the business, as Yarra Services contends. The submission concludes, “The application is of substance, and it cannot be said to be without a real prospect of success.” 6

[15] Yarra Services submits in response that Mr Bice’s dismissal was a case of genuine redundancy and relies on the decision in Nulty v Blue Star Group Pty Ltd 7 as authority for what is required to find that exceptional circumstances exist. In regard to the matters in s.394(3):

• It does not take issue with the reasons for the delay relied on by Mr Bice.



• It acknowledges he was aware of his dismissal at the time it took effect.



• It submits Mr Bice took no action to dispute his dismissal in the 14 days that immediately followed. He then made contact with his Solicitor, but did not follow up on the progress of his application after that point.



• It submits Yarra Services would suffer some economic hardship and consequent prejudice if Mr Bice is able to pursue his application.



• It submits Mr Bice’s dismissal was a case of “genuine redundancy, and his role in the business is not currently required to be performed by anyone. It also submits the business is no longer trading.



• It also submits Mr Bice would be unfairly advantaged vis a vis another employee if allowed to pursue his application.

[16] It submits, in conclusion, that Mr Bice was aware his employment was going to end because of the state of the business. It also submits his application is “without merit” as it involves a case of “genuine redundancy.”

Consideration

[17] In coming to a decision in this matter I have had regard to each of the matters in s.394(3) that I am required to take account of. There is no dispute about the reason for the delay, being the failure by Mr Bice’s Solicitor to lodge the application within time in the face of clear instructions from Mr Bice.

[18] The respective merits of the application are much less clear given the limited submissions and evidence before the Commission. However, previous decisions of the Tribunal have held it is not the Commission’s role at this point to be forming a concluded view of the respective merits of a matter.

[19] As indicated, in the Full Bench decision in Robinson representative error in circumstances where an Applicant is blameless, can constitute “exceptional circumstances.” The decision of the Full Bench in that matter also adopted the earlier approach of Clark, which drew a distinction between circumstances in which the Applicant is blameless, and one in which he/she should accept some blame for the delay in lodging.

[20] I am satisfied Mr Bice is “blameless” in all the circumstances of this matter. He consulted his Solicitor on 12 September and instructed him to lodge an unfair dismissal claim on his behalf. At this stage there were still 7 days to run before the expiry of the 21 day time period. He was then asked to attend again to sign the application, which he did on 18 September. His evidence indicates he understood the application was then to be filed that day.

[21] I do not consider that Mr Bice was then required or expected to check whether the application was subsequently filed within the 21 day period. The failure to lodge was solely due to the failure of his representative.

[22] I am satisfied having had regard to all the circumstances, and the matters in s.394 that I am required to take account of, that it is appropriate for the Commission to exercise its discretion under s.394 to grant Mr Bice additional time in which to make his application. The matter will now be relisted to enable the substantive application to be heard and determined.

COMMISSIONER

Final written submissions:

Applicant filed Outline of Submissions on 10 October 2014.

Respondent filed Outline of Submissions on 20 October 2014.

 1   Fair Work Act 2009 (Cth) at s.394(3)

 2   Outline of Submissions filed on behalf of the Applicant, dated 10 October 2014, at para 8

 3   [2011] FWAFB 2728

 4 (1997) 74 IR 413

 5   Above n.ii

 6   Ibid

 7   [2011] FWAFB 975

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