Mr Paul Bermingham v Sydney Church of England Grammar School
[2011] FWA 6899
•10 OCTOBER 2011
[2011] FWA 6899 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Paul Bermingham
v
Sydney Church of England Grammar School
(U2011/10146)
COMMISSIONER CARGILL | SYDNEY, 10 OCTOBER 2011 |
Extension of Time - Jurisdiction.
[1] This decision arises from an application by Mr P Bermingham (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Sydney Church of England Grammar School (the respondent or the school). The application was lodged outside the statutory time limit. The respondent has lodged an objection to the application and seeks to have it dismissed.
[2] The matter was heard as part of the Sydney jurisdictional matters roster on 30 September 2011. The applicant was represented by Ms Finnerty, solicitor and agent for the applicant’s legal representatives. The respondent was represented by Mr Burke, solicitor. Both representatives appeared by permission.
[3] The applicant gave sworn evidence and adopted his previously filed witness statement which was marked as Exhibit Applicant 1. A statutory declaration declared by Mr J St Vincent Welch, Industrial Advocate, was entered into evidence and marked Exhibit Applicant 2.
[4] Ms K Dickson, the Bursar of the school, provided a witness statement. She adopted the statement under oath. It was marked Exhibit Respondent 1.
FACTS AND EVIDENCE
[5] The applicant commenced employment with the respondent in August 2005. He was engaged as a member of the maintenance team at the school.
[6] A number of performance related issues had been raised with the applicant during the course of his employment. He had received three written warnings. In February 2011 Mr St Vincent Welch was instructed by the applicant to assist with his industrial issues and appeared with him in meetings with the respondent from that time.
[7] On 21 June 2011 Ms Dickson provided the applicant with a letter which set out the history of his performance issues and informed him that she had reached a preliminary view that he should be dismissed. Ms Dickson requested the applicant’s response and encouraged him to seek advice beforehand. A copy of the letter was provided to Mr St Vincent Welch by the school.
[8] A written response from Mr St Vincent Welch on the applicant’s behalf was provided to the school on 3 July 2011.
[9] Ms Dickson’s evidence is that she considered this response and, based on her knowledge of the applicant’s performance and conduct, decided that his employment should be terminated. She took into account the issues addressed in the prior written warnings, the applicant’s apparent inability to follow instructions and the fact that she had lost trust and confidence in his ability to properly perform his role.
[10] On 7 July 2011 Ms Dickson met with the applicant and Mr St Vincent Welch and informed them of her decision. She provided the applicant with a letter of termination dated 7 July 2011 which, among other things, states that the termination was to be effective “Friday 8 July 2011”.
[11] In his evidence the applicant challenges the accuracy of some of the allegations against him which gave rise to the dismissal. He considers that he has been set up and victimised. He also notes that a dispute he raised with the respondent in March 2011 had not been referred for conciliation in accordance with the relevant workplace agreement.
[12] Mr St Vincent Welch’s evidence is that, on 7 July 2011, he was instructed to file the applicant’s claim and proceeded to prepare it “in the usual way”. His evidence is that he was ill on the day on which the application was due to be filed, Friday 22 July 2011, and the application was not filed until 25 July 2011. Mr St Vincent Welch’s evidence is that this was due to his error and through no fault or error on the part of the applicant. He notes that this is the first time he has ever failed to lodge an application on time in any jurisdiction.
[13] The application, Form F2, is signed by the applicant and is dated 15 July 2011. The applicant’s evidence is that he thinks Mr St Vincent Welch filled out the form. The applicant’s evidence is that Mr Vincent Welch told him that he was going to lodge the form by the following Friday. The applicant testified that he thinks Mr St Vincent Welch mentioned that he had 21 days in which to lodge the form. The applicant’s evidence is that this discussion took place on the day he signed the form. The applicant also testified that that was the last he heard of it until he received an email from the Tribunal informing him that it was out of time.
[14] The claim for relief was lodged on 25 July 2011. This is either three or four days late depending on whether the dismissal took effect on 7 or 8 July.
SUBMISSIONS ON BEHALF OF THE APPLICANT
[15] Ms Finnerty submitted that the applicant should not be prejudiced by the administrative error of his industrial advocate. She noted that the respondent had conceded that it would not suffer prejudice if the time for lodgement was extended.
[16] Ms Finnerty submitted that the application had merit and that it wouldn’t be in the interests of fairness to deny the applicant the right to bring his claim. She submitted that there were exceptional circumstances. Mr St Vincent Welch had never made this mistake before.
[17] In her reply submissions Ms Finnerty noted that two of the intervening days between the due date and actual date of lodgement fell over a weekend so the application was really only one day out of time. She reiterated that the application had merit. There were different versions of events and certain issues which had been raised by the applicant had not been properly addressed.
[18] Ms Finnerty submitted that the applicant was entitled to rely upon his industrial advocate and trust that the application would be lodged in time. The applicant had no way of knowing this would not occur. This gave rise to exceptional circumstances and it would be harsh and unjust not to extend time.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
[19] A written outline of submissions on behalf of the respondent was lodged prior to the proceedings. Mr Burke also made oral submissions.
[20] It is submitted that that there are no exceptional circumstances in this matter which would require that an extension of time should be granted. The respondent relies upon the meaning of exceptional circumstances as considered in Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251; Prasad v Alcatel - Lucent Australia Ltd[2010] FWA 7804; and Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty).
[21] It is submitted that the applicant has not provided any real explanation for the delay. The applicant’s industrial advocate was present at the meeting on 7 July 2011 at which the applicant was informed that his employment was being terminated. The only evidence put forward by the applicant concerns the conversation he had with Mr St Vincent Welch concerning the application. It is submitted that there was no evidence of the notification of the proper timeframe for lodgement. Indeed the applicant had testified that Mr St Vincent Welch thought there was a period of 21 days. This was despite Mr St Vincent Welch’s lengthy experience.
[22] The respondent submits that the applicant took no other action to contest the dismissal. The respondent concedes it would not be prejudiced by the time being extended.
[23] Mr Burke submitted that there was a substantial hurdle for the applicant to overcome in respect of the merits of his case. The dismissal was substantively and procedurally fair. The applicant had received three written warnings and had been counselled on a number of occasions between July 2008 and his dismissal. He had been provided with opportunities to respond prior to receiving the warnings and the dismissal and has been represented. It is submitted that the dismissal was not harsh, unjust or unreasonable.
[24] The respondent submits there is nothing to suggest there are other persons in a similar position such that fairness between those persons and the applicant is relevant.
[25] Mr Burke submitted that the exceptional circumstances test has been set quite high. Parliament has shown an intention that parties should bring their claims within time. There are no exceptional circumstances in this case. The applicant simply relied on advice which turned out to be incorrect. Ignorance of the time limit for filing does not give rise to an exceptional circumstance. There is nothing in the applicant’s case which is “out of the ordinary course, unusual, special or uncommon” (Nulty paragraph 13).
CONCLUSIONS
[26] Section 394(2) provides that an application for an unfair dismissal remedy must be made within 14 days after the dismissal took effect or within such further period as Fair Work Australia allows under subsection (3). That subsection is in the following terms:
“FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
[27] As indicated earlier, the applicant’s dismissal took effect either on 7 July, the date on which he was informed of the respondent’s decision and the date of the letter of termination, or 8 July, the date set out in that letter as the effective date of dismissal. The application was filed on 25 July. It is either three or four days out of time. It should be noted that my decision would be the same regardless of whether the delay is three or four days.
[28] I now turn to address the issue of whether there are exceptional circumstances and the factors set out in section 394(3).
[29] The Full Bench in Nulty reviewed the authorities on “exceptional circumstances” and provided a very useful summary at paragraphs 13 to 15 of its decision. I adopt and follow the approach of the Full Bench in this regard.
[30] The reason for the delay advanced on behalf of the applicant is that his industrial advocate did not lodge the application in time. The applicant signed the application on 15 July and his evidence is that his representative told him that he, Mr St Vincent Welch, would lodge the form by the following Friday. Mr St Vincent Welch’s evidence is that he was ill on that day and the late lodgement was due to his error. I note that Mr St Vincent Welch did not provide any evidence for the failure to lodge on Thursday 21 July which would have been the due date if the date of effect of the dismissal was 7 July.
[31] Representative error has been found to be a basis for an extension of time under previous legislative provisions and also, more recently, in relation to section 394(3) as well as section 366(2), which is in similar terms. A recent Full Bench dealing with a matter under section 366(2) considered that the approach adopted in Clark v Ringwood Private Hospital (1997) 74 IR 413 and as summarised in Davidson v Aboriginal and Islander Child Care Agency [Print Q0784) remained apposite to the issue. That summary is 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.
(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.” 1
[32] In this case the applicant was blameless with respect to the delay occasioned by the failure of his representative to lodge the claim on the due date, whether that date be 21 or 22 July. The applicant signed the application well within the 14 day period and was informed by his representative that it would be lodged by the following Friday. The fact that his representative did not lodge the claim in time should not be attributed to the applicant. Neither should the applicant be held accountable for his representative’s misapprehension of the time limit. In any event the applicant did not rely on that advice. The advice he relied upon was that the claim would be lodged in time. It was his representative’s error which caused the claim to be late.
[33] I note that Mr St Vincent Welch had been representing the applicant for a period of some months prior to the termination. This is not a case where the applicant decided to make a claim and sought advice at the last minute and consequently it was not unreasonable that the applicant should rely upon his representative to do what he said he would do; lodge the application. Whatever the reason for the absence of an explanation by Mr St Vincent Welch for the failure to lodge the claim on 21 July, if that indeed was the due date, it is not something which should be laid at the applicant’s feet.`
[34] The applicant became aware of his dismissal on 7 July. That is either the date the dismissal took effect or indeed the day before it took effect. It was not after it took effect.
[35] The applicant took no action to dispute his dismissal other than by lodging this claim.
[36] The respondent has conceded that it would not suffer prejudice if the time is extended.
[37] I have not formed any concluded view in relation to the merits of the substantive application. Clearly the applicant has been the subject of a number of warnings and counselling. The applicant has raised issues about the accuracy of some of the matters put against him. In the circumstances and, on the basis of the limited material before me, I am prepared to accept that the application is not without merit.
[38] There has been nothing put to me which satisfies me that the issue of fairness as between the applicant and others in a similar position has any particular relevance in this matter.
[39] I have taken into account each of the factors set out in paragraphs (a) to (f) of section 394(3). I am satisfied that, taken as a whole, there are exceptional circumstances in this case which are sufficient to justify the granting of an extension of time of either three or four days for the making of the application. In particular I consider the representative error of the industrial advocate, the blameless conduct of the applicant and the shortness of the delay combine to produce exceptional circumstances.
[40] The time for lodgement of the application is extended to 25 July 2011.
COMMISSIONER
Appearances:
A. Finnerty, solicitor, agent for the applicant
S. Burke, solicitor, for the respondent
Hearing details:
2011
Sydney.
September 30.
1 McConnell v A & PM Fornataro T/A Tony’s Plumbing Service[2011] FWAFB 466
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