Mr Paul Lewis v Hitachi Construction Machinery (Australia) Pty Ltd
[2018] FWC 596
•26 MARCH 2018
| [2018] FWC 596 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Paul Lewis
v
Hitachi Construction Machinery (Australia) Pty Ltd
(C2017/6507)
DEPUTY PRESIDENT ASBURY | BRISBANE, 26 MARCH 2018 |
Application to deal with contraventions involving dismissal – Dismissal took effect when employment relationship ended – Dismissal did not take effect when payment in lieu of notice was made – Application filed outside time required in s. 366(1) – Representative error – Failure to fully explain actions taken by the Applicant to instruct representative – Applicant not entirely blameless in late filing of application – Applicant gave instructions to file within time – Consideration of matters in s. 366(2) – Exceptional circumstances found – Further period in which to make application granted.
BACKGROUND
[1] This Decision concerns an application by Mr Paul Lewis under s. 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a General protections dispute in relation to his dismissal by Hitachi Construction Machinery (Australia) Pty Ltd (Hitachi). Mr Lewis states in his Form F8 General protections application that he was dismissed on 2 November 2017. The application was made on 24 November 2017.
[2] By virtue of s. 366(1) of the Act an application under s. 365 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. 366(2). Accordingly if the date Mr Lewis’ dismissal took effect was 2 November 2017, the application was made one day outside the time required in s. 366(1) of the Act.
[3] On the basis of the information set out in the application, correspondence was forwarded to Mr Lewis by the Commission advising that his application had been filed outside the required time and setting out the requirements in s. 366(2) which must be established for a further period in which to make the application to be granted. Hitachi consented to participating in a conciliation conference prior to the extension of time issue being determined, however the matter was not resolved in that conference.
[4] Directions were issued requiring Mr Lewis to file a statement setting out the basis for the submission that there were exceptional circumstances justifying the grant of a further period in which to make his General protections application. The statement and documents were required to be filed and served by close of business on 19 January 2018. Hitachi was directed to file and serve a statement as to why Mr Lewis should not be granted a further period in which to make his application by noon on 29 January 2018.
[5] Mr Lewis filed an outline of submissions asserting that his application was not filed outside the period required under s. 366(2) of the Act and that in the alternative the delay was due to representative error involving a misunderstanding of the time limitation on the part of his solicitor.
[6] It is therefore necessary to determine whether the application was made within the time required in s. 366(2) of the Act and if not, whether a further period should be allowed under s. 366(2) of the Act for the application to be made. The matter was listed for Objections Conference/Hearing on 30 January 2018. Permission to be legally represented in relation to the extension of time application was sought by both Mr Lewis and Hitachi and pursuant to s. 596 of the Act, I granted permission on the basis that both parties were seeking to be represented; no issues of fairness arose; and it enabled the matter to be dealt with more efficiently. Mr Lewis was represented at the hearing by Mr Andrew Anderson, Principal Lawyer of Anderson Fredericks Turner. The Respondent was represented by Mr Sina Zevari, Senior Associate of Australian Business Lawyers and Advisors.
[7] At the hearing, the Mr Lewis and Ms Kerri Fredericks, Principal Lawyer of Anderson Fredericks Turner, gave evidence as to why Mr Lewis should be granted a further period in which to make the Application and were given an opportunity to provide further information about the matters in s. 366(2) of the Act. Witness statements setting out the evidence of Mr Lewis and Ms Fredericks were tendered and they were cross-examined. 1 Ms Fredericks made the alleged representative error relied on as one of the grounds for Mr Lewis being granted a further period in which to make his General protections application. Hitachi tendered a Statement made by Mr Christopher Turner, National Human Resources Manager and made a submission in opposition to Mr Lewis being allowed a further period in which to make the application. Mr Turner was not required for cross-examination and his Statement was admitted without objection.
EVIDENCE
[8] For the purposes of the present proceeding, the relevant facts can be summarised as follows. Mr Lewis is from Scotland and was raised there. On a few occasions each year, Mr Lewis wears a kilt. Mr Lewis wears a kilt in the “traditional” manner – without underwear.
According to Mr Lewis a kilt worn with underwear is considered a “skirt”.
[9] On 18 August 2016, Mr Lewis attended a work related function which was an awards night conducted as part of a staff conference. He states that the dress code for the function was smart casual and that he wore his kilt (in the traditional manner) “as a bit of a laugh”. At some point during the evening, the Deputy General Manager (the second most senior manager of the Company and of a Japanese nationality) who is of a Japanese nationality, while congratulating Mr Lewis on winning several awards, shook Mr Lewis’ hand and asked if he could look up Mr Lewis’ kilt. Mr Lewis states that he was taken aback but thought the manager was joking and said “OK” thinking that it would not happen. The manager proceeded to lift Mr Lewis’ kilt and look at his genitals, which were exposed as Mr Lewis was not wearing underwear.
[10] Mr Lewis states that the manager walked away muttering and other bystanders laughed. Mr Lewis states that he reported the matter to the General Manager, who expressed surprise. Mr Lewis was leaving the staff conference the day after the awards event and did not raise the matter further. Mr Lewis was also hoping to transition to retirement by winding down his hours. Mr Lewis raised the subject of winding back his hours in order to transition to retirement with several managers of Hitachi both before and after the August conference. His attempts in this regard were not successful. Mr Lewis made a decision to retire in or around October 2017 and gave notice in writing on 31 October that he intended to resign his employment and work out his four weeks notice, up to 29 November 2017.
[11] Thereafter Mr Lewis had conversations with the Regional Sales Manager about implementing his retirement and handover of customers. Mr Lewis also pursued his request to keep his work related mobile telephone number with more senior managers to no avail. Mr Lewis said that notwithstanding this he was still hoping to be able to keep his mobile telephone number after his retirement and was aware of two other employees who had been allowed to do this. On 31 October 2017, Mr Lewis sent an email to the General Manager of the Company stating that he had resigned as of that date and intended to work out his notice ending on 29 November 2017. Mr Lewis further requested in that email to be allowed to keep his mobile telephone number and provided assurances that he would not do the wrong thing if this request was granted. Mr Lewis also stated in the email:
“I have been with the company for 19 years and would like to leave on a congenial note.
I have nearly 7 months sick leave that I have not taken (I could have went down the stress leave path!!!)…”
[12] Mr Lewis received an email from the General Manager in response reiterating that Mr Lewis would not be allowed to keep his work related mobile telephone number and stating that the General Manager was taken aback with what he saw as an implied threat that if he did not agree to Mr Lewis’ request to maintain his mobile telephone number Mr Lewis could possibly consider embarking on a stress claim against the Company. Mr Lewis responded by email stating that it was in no way a threat and expressing his sadness if that was the final decision.
[13] Mr Lewis states that he went home that evening and decided to make a complaint about the kilt lifting incident. Mr Lewis said that the incident was still “bugging” him and he felt that there was nothing the Company could do to him now given that he was retiring on 29 November 2017 and his request to keep his work related mobile telephone number had been refused.
[14] Mr Lewis telephoned his Regional Sales Manager on 1 November and informed him that the conduct of the Deputy General Manager at the Conference on 18 August 2016 had been “bugging” him and asked who he needed to contact to initiate a complaint. At 8.30 am on 2 November 2017 Mr Lewis emailed Ms Fredericks and asked her to arrange a time when he could speak to her about a work related matter. A meeting was arranged with Ms Fredericks for 10.00 am on 3 November 2017. On 2 November Mr Lewis again spoke to the Regional Sales Manager and was told that he should direct his complaint to the General Manager – Northern Region. Mr Lewis states that he sent a number of emails but does not have copies of them.
[15] On 2 November 2017 at 5.00 pm the General Manager Northern Region met with Mr Lewis with the Human Resources Manager in attendance by telephone, to discuss a complaint of sexual harassment made by Mr Lewis about the conduct of the Deputy General Manager on 18 August 2016. During that meeting, Mr Lewis was handed letters by the Deputy General Manager dated 2 November 2017. A letter headed “Separation of Employment” stated that:
“I am writing to you concerning your resignation of employment with Hitachi Construction Machinery (Australia). We acknowledge and accept your resignation effective 29 November 2017. Your employment will end immediately, Thursday 02 November 2017. With your notice period (to 29 November 2017) paid in lieu…
You will be paid your accrued entitlements (long service and annual leave) and outstanding remuneration, including superannuation, up to and including your last day of employment, any wages paid in advance will be deducted from the final payment…”
[16] The second letter also dated 2 November 2017 and handed to Mr Lewis at the meeting, formally acknowledged Mr Lewis’ complaint of sexual harassment against the Deputy General Manager advising that the allegation was taken seriously and would be investigated. That letter goes on to confirm Mr Lewis’ retirement and that he would cease employment on 2 November 2017 and would not be required to work out his notice period, but would be paid for that period. Mr Lewis states that he was then told that he no longer worked for the Company and would have to surrender his telephone, computer and vehicle immediately. Mr Lewis then packed his personal effects into cardboard boxes, handed over his car key, building key and Company credit card and was escorted from the premises. Mr Lewis was paid a final amount by Hitachi on 3 November 2017, ahead of his usual pay day of 15 November 2017.
[17] On 3 November 2017 Mr Lewis met with Ms Fredericks as arranged. On 6 November 2017, on Mr Lewis’ instructions, Ms Fredericks sent a letter to Hitachi advising that the Firm acted for Mr Lewis “in relation to this matter” and was in the process of obtaining instructions from Mr Lewis with a view to informing Hitachi of “his position moving forward”.
[18] On 15 November 2017, Mr Lewis instructed Ms Fredericks to send “without prejudice” correspondence to the Respondent. The correspondence was not tendered by Mr Lewis or his lawyer, apparently on the basis that the Respondent’s legal representative objected. I also note that the submissions for Mr Lewis indicated that an attempt to tender the correspondence would be made at the hearing, but no such attempt was made. Mr Lewis states that he contacted his legal representative on 21 November 2017 and confirmed that Hitachi had not responded to the correspondence of 15 November 2017. Mr Lewis further states that he gave his legal representative instructions to proceed with the application. A draft of the General protections application was emailed to Mr Lewis at 4.06 pm on 23 November 2017 with a covering email in the following terms:
“Hi Paul
This is probably not strictly due until tomorrow but I would like to get it filed today. I have included my practice manager Tanya Taylor to clarify a few things with you:-
1. Contact details
2. Phone number
Also can you please read through and confirm you agree? There is also a filing fee (something like $67.00) are you happy to pay this?”
[19] Mr Lewis states that he reviewed the documentation and responded to the email at 6.18 pm indicating that he agreed that it should be filed and was happy to pay the filing fee. Mr Lewis states that he understands that the Respondent is pressing a jurisdictional objection on the basis that the application was filed outside the required time, but maintains that he does not properly understand the law in relation to this issue. Mr Lewis further states that he put the matter into the hands of Ms Fredericks and trusted her to exercise her professional judgement.
[20] Under cross-examination, Mr Lewis agreed that his contact with the Firm of Anderson, Fredericks, Turner seeking an appointment, was made at 8.30 am on 2 November 2017, and that at that time he had not received the letter terminating his employment. Mr Lewis said that when he sought the appointment, his purpose was to obtain an opinion about making a complaint of sexual harassment against the Deputy General Manager of the Respondent. At the meeting with Ms Fredericks on 3 November 2017, Mr Lewis was told that there was a time limit of 21 days for making a General protections application, and that the time limit ran from the date he was dismissed. Mr Lewis said that in his opinion, the 21 day time period ran from 2 November as that was the date he received the letter informing him that he was dismissed. 2
[21] Mr Lewis was asked whether he made enquiries on receiving the email from Ms Fredericks on 23 November stating that his application was probably not strictly due until tomorrow but that Ms Fredericks would like to file it on 23 November, on the basis that he understood that there was a 21 day time limit in which to make a General protections application which ran from 2 November 2017. Mr Lewis said that he did not make enquiries about this matter as he had very faith in Ms Fredericks to do the right thing and was not going to argue with her about the date for filing.
[22] Mr Lewis was also asked whether he had contacted Ms Fredericks about the draft application at any point after forming a view that he wished to file that application or between the meeting of 3 November with Ms Fredericks and the filing of the application. Mr Lewis said that he was given some documentation by email stating that the application was going to be filed and did not pursue it past that point because he could see it was progressing. Mr Lewis also said that he received an earlier version of the draft application “somewhere around the 20 or 21 day mark”. Beyond those communications, Mr Lewis did not follow up on the progress of his application.
[23] Ms Fredericks said that she met with Mr Lewis on 3 November and that he subsequently engaged her to represent him. It is Ms Frederick’s practice after engagement to begin the process of obtaining full and detailed instructions; identify any potential causes of action; identify any issues; identify any limitation dates that may apply; and seek instructions to make early attempts to resolve the matter without the need for litigation. Ms Fredericks said that on her assessment of the facts, she formed the view that Mr Lewis had several causes of action open to him. These included a general protections application on the ground that Mr Lewis was dismissed for exercising a workplace right. Ms Fredericks said that she took a good deal of care to determine whether the matter involved a dismissal and was cognisant of the fact that if Mr Lewis had been dismissed because he made a complaint or inquiry in relation to his employment, then an application was required to be made within 21 days of the dismissal. Ms Fredericks was also cognisant of the fact that if the claim for adverse action did not involve dismissal s. 372 of the Act would apply and the claim could be made directly to the Federal Circuit Court within six years of the date of the adverse action.
[24] Ultimately, Ms Fredericks formed the view that Mr Lewis had been dismissed and that the application was required to be made within 21 days after the dismissal took effect. Ms Fredericks also formed the view that the dismissal took effect on 3 November 2017. On 6 November 2017, Mr Lewis instructed Ms Fredericks to send a letter to the Respondent notifying them of the Firm’s involvement. Ms Fredericks also said that she held instructions to try and resolve the matter and sent detailed correspondence to the Respondent on a without prejudice basis. As previously noted, no attempt was made to tender that correspondence despite such an attempt being foreshadowed. Ms Fredericks states that when a response to that correspondence was not received, Mr Lewis gave instructions to the Firm to file his application in the Commission. Ms Fredericks gives no evidence about when those instructions were given.
[25] On 23 November 2017, at 4.06 pm, Ms Fredericks sent the final draft of a Form F8 General protections application to Mr Lewis for his review and approval. The covering email was also tendered by Mr Lewis and is set out above. Ms Fredericks states that she was hoping to file the application in the Commission before close of business that day, but remembers that she held the view that the application was not strictly required to be filed until the following day on the basis of her conclusion that Mr Lewis’ dismissal took effect on 3 November 2017 and not 2 November 2017. Ms Fredericks said that she did not follow up with Mr Lewis or her Practice Manager before leaving work that day. Ms Fredericks received a response from Mr Lewis at 6.19 pm confirming his instructions to file the application and that he was happy to pay the filing fee. On her arrival at work on 24 November Ms Fredericks followed up with her Practice Manager. The application had not been filed at that point, but was filed at 12.09 pm on 24 November 2017.
[26] Under cross examination, Ms Fredericks was asked to state the date on which she formed the view that Mr Lewis had been dismissed on 3 November 2017. Ms Frederick said that she had an initial consultation with Mr Lewis on 3 November 2017 where he had given her a “broad overview” of what was happening. Ms Fredericks said that it is not her practice to give any formal or concluded view at that stage. Ms Frederick’s practice is that when a client engages here she then takes full instructions, which takes a few days. In the meantime, Ms Fredericks wrote to the Respondent advising that she had been engaged but was in the process of taking instructions. Ms Fredericks’ practice is to set out a timeline of events to understand what happened and in the present case, Mr Lewis’ resignation was a complicating factor. Ms Fredericks said that she could not state the date upon which she formed the view that the dismissal took effect on 3 November 2017 but maintained that she honestly held that view, whether or not it was correct in law.
[27] Ms Fredericks was cross-examined about the email sent to Mr Lewis on 23 November 2017, at 4.06 pm and whether this was the first time she had told Mr Lewis that her view was that the application was not strictly required to be filed until 24 November 2017. Ms Fredericks said that she could not recall whether this was the case, but did recall that she wanted the application filed on 23 November 2017, as in Ms Fredericks’ view it is not good practice to file on the last day. However based on her view that the application was not strictly due until 24 November, Ms Fredericks said that she was not overly concerned that it was not filed on 23 November 2017.
[28] In response to a question about when the Form F8 General protections application was prepared, Ms Fredericks said that it was being prepared over a few days and “finessed”. Ms Fredericks also said that the finalised document was sent to Mr Lewis at 4.06 pm on 23 November for final review prior to filing with the Commission, in accordance with her practice. Ms Fredericks agreed that in response to question 1.1 in the Form F8 application it is stated that the dismissal took effect on 2 November 2017. Ms Fredericks said that she inserted this date into the application because that was the date that Mr Lewis told her that he was dismissed or notified of his dismissal. Ms Fredericks said that it is her practice to put as much information as possible into the Form F8 and she thought it important to note that the dismissal occurred after 5.00 pm on that date.
[29] Ms Fredericks also pointed to the fact that the Form F2 application for an unfair dismissal remedy asks two questions:
• “What date were you notified of your dismissal?”; and
• “What date did your dismissal take effect?”
[30] In contrast the Form F8 General protections application asks: “On what date were you dismissed.” Ms Fredericks said that she did not change her view that the dismissal took effect on 3 November 2017, but “wondered” whether the difference in the questions had “added to the confusion on this occasion”. 3 Ms Fredericks also said that she wondered whether she had answered the question incorrectly but formed the view that she had not and so did not seek to amend the particulars in the application. In relation to the email sent to the applicant on 23 November at 4.09 pm and the statement that the application was not strictly due to be filed until the next day, Ms Fredericks said that Mr Lewis did not ask her to provide a more definitive view, and placed his trust and confidence in her to get the application filed within the required time. Ms Fredericks also said that she discussed time frames and limitation periods with Mr Lewis for a whole range of matters but he was completely guided by Ms Fredericks and trusted her judgement and skill to get this done correctly and in time.
[31] In re-examination Ms Fredericks said that she decided to insert the date 2 November 2017 into the Form F8 as the date of the dismissal, by applying the facts to what she believed the law to be in terms of notifying Mr Lewis of the dismissal on that date. Ms Fredericks also said that the information in the Form F8 was based on instructions but she answered the question by application of the law rather than with reference to Mr Lewis. Ms Fredericks agreed that if it is found that employment ceased or the dismissal took effect on 2 November 2017 then the application was filed outside of the required time. In relation to her response to question 1.4 in the Form F8 stating that the application was filed within 21 calendar days of the dismissal taking effect, Ms Fredericks said that in her mind the employment relationship ceased on 3 November 2017 and the application was filed within 21 days of that date.
[32] Mr Turner tendered Mr Lewis’ resignation letter which states that the resignation is tendered effective 1 November 2017 but that Mr Lewis will work out his four weeks notice and finish on 29 November 2017. The letter also contains a request that Mr Lewis be allowed to keep his mobile telephone number and a statement that he does not intend to work for any competing company and will hand over any leads. Mr Turner also tendered evidence of the investigation that Hitachi conducted into Mr Lewis’ claim of sexual harassment. Essentially the Company contends that its investigation established that:
• The lifting of Mr Lewis’ kilt was consented to by Mr Lewis;
• Mr Lewis knew that it would likely be confronting for the Deputy General Manager when he lifted the kilt;
• Mr Lewis could have prevented the kilt being lifted at any time; and
• There was no indication at the time or immediately thereafter that Mr Lewis was offended, humiliated, hurt or intimidated; and
• The claim of sexual harassment was not supported by the evidence.
[33] Mr Turner also said that Hitachi’s practice, as confirmed in the investigation report is that:
• HCA retains its mobile telephone numbers for departing sales representatives and customer facing staff;
• Where sales representatives and other customer-facing staff resign, they are given a payment in lieu of notice.
[34] Further Mr Turner said that Hitachi’s decisions pertaining to his mobile telephone and provision of payment in lieu of notice were not affected by the internal complaint of sexual harassment. Mr Turner also appended an application made by Mr Lewis to the Anti-Discrimination Commission Queensland on 22 December 2017 in relation to alleged sexual harassment.
DATE DISMISSAL TOOK EFFECT
[35] It is submitted for Mr Lewis that his dismissal took effect on 3 November 2017 on the basis that the employment relationship ended on the date on which Mr Lewis received a payment in lieu of notice. In relation to this submission, Mr Lewis relies on a Decision of a Full Bench of the Commission in Mihajlovic v Lifeline Macarthur. 4That case concerned an unfair dismissal application which was made before the dismissal took effect and the issue for determination was whether such an application was validly made.
[36] In determining the issue, the Full Bench in Mihajlovic considered when a person has been dismissed for the purposes of making an application for an unfair dismissal remedy under s. 394 of the Act. The Full Bench considered that s. 394(1) establishes as a basic qualifying criterion for the making of an application that the applicant has to be “a person who has been dismissed” in the circumstances defined in s. 386(1) which required inter alia that the person’s employment is terminated at the initiative of the employer. The Full Bench held that termination of the employment relationship is comprehended by the expression termination of employment.
[37] The Full Bench in Mihajlovic went on to consider a line of authority following the decision in Siagian v Sanel 5 where the Industrial Relations Court held that the capacity of the applicant to access the termination of employment provisions of the former Industrial Relations Act 1988 depended on the date which the applicant’s employment was terminated. The relevant legislative provisions commenced on 30 March 1994. The applicant in that case had been told on 29 March 1994 that his employment was terminated and was paid an amount representing his salary up until 15 April 1994. The Court considered an argument that the employment of the applicant extended to the date of expiration of the period for which payment of the applicant’s salary was made.
[38] The Full Bench in Mihajlovic also cited the judgement of Waite J in Leech v Preston Borough Council 6where the expression “payment in lieu of notice” was considered with two possible meanings identified. The two possible meanings identified by Waite J were expressed as follows:
“...the expression ‘payment in lieu of notice’ is regularly used throughout industry in one or other of two quite different senses. The first, which is the grammatically correct one, is when it is used to describe the payment to an employee whom it is proposed to dismiss summarily of a lump sum representing compensation for the wages or salary which he would have received if he ad been given the notice to which he was entitled by law. The second, which is the colloquial and grammatically inaccurate one, is when the term is used as a convenient shorthand way of telling an employee that he is being given the full period of notice to which he is entitled by law but is at the same time excused any duty (and refused any right) that he would otherwise have under his employment contract to attend at the workplace during the notice period.” 7
[39] The Full Bench in Mihajlovic observed that although Waite J did not spell out the result that flowed from each meaning, in the first case the employee’s emloyment terminates upon the date of payment of the lump sum. In the second case, the employment extends until the expiration of the notice period. The Full Bench in Mihajlovic went on to hold that:
“Having regard to the obvious provenance in the language used in s.386(1)(a) of the Act in the termination of employment provisions of the Industrial Relations Act 1988 and their interpretation in decisions such as Mohazab and Siagian, we consider that the same approach should be adopted as in those two cases, namely that a person’s “employment with his or her employer has been terminated on the employer’s initiative” when the person’s employment relationship with the employer has ended, and that where the employee has been terminated on notice, the employment relationship ends when the notice period expires. Because s.386(1) defines when a person has been dismissed for the purpose of s.394(1), the same propositions apply to the meaning of the expression “A person who has been dismissed” in s.394(1). Section 394(1) therefore requires a person’s employment to have terminated in order for that person to make an application for an unfair dismissal remedy.” 8
[40] It is contended for Mr Lewis that the payment in lieu of notice made on 3 November 2017 places him in the category of employee identified by Waite J in Leech and by the Full Bench in Mihajlovic – where employment terminates when a lump sum representing compensation for the wages or salary which the employee would have received if he had been given notice to which he or she was entitled is paid – and that his dismissal took effect on that date.
[41] I do not accept that submission. In particular I do not accept that the Full Bench in Mihajlovic established a General proposition that where an employee is dismissed with immediate effect and paid an amount in lieu of notice as a lump sum, that the employment relationship continues until the lump sum is paid. The Full Bench in Mihajlovic made it clear that employment ends when the person’s employment relationship with the employer ends.
[42] There may be cases where the relationship does not end until a lump sum in lieu of notice is paid. However Mihajlovic does not establish a General principle to that effect. In Sutherland v Sydney Property Finders Pty Ltd, Deputy President Sams considered a similar argument and said that the reliance on the Full Bench Decision in Mihajlovic to support it was misplaced, and misunderstands the context in which that case was decided. As Deputy President Sams observed, the Full Bench Decision in Mihajlovic establishes that the date on which the employment relationship ends will be decided on the particular facts and circumstances in each case, and the date upon which a payment in lieu of notice is made, or the period covered by the payment expires, is not determinative. 9 I agree with that analysis.
[43] In the present case, Mr Lewis was informed in a letter dated 2 November 2017 which was handed to him on that date that his employment was terminated with immediate effect. On his own evidence, Mr Lewis was required to surrender his telephone, computer, vehicle, building keys and corporate credit card before exiting the building with his personal effects in a cardboard box, to await his wife who was required to pick him up as his company car had been taken from him. Mr Lewis was in no doubt that his employment had been terminated on that date and said as much in his evidence to the Commission.
[44] I am satisfied and find that Mr Lewis’ employment relationship with Hitachi terminated on 2 November 2017 and that his General protections application under s. 365 of the Act was required to be made within 21 days of that date – by 23 November 2017. The application was made one day outside the required time. Accordingly, it is necessary to consider whether Mr Lewis should be granted a further period in which to file his application.
CONSIDERATION OF WHETHER A FURTHER PERIOD SHOULD BE GRANTED
The approach to deciding whether a further period should be granted
[45] As previously noted, s. 366(1) of the Act requires that a general protections application under s. 365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 366(2) of the Act.
[46] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a General protections application to be made as follows:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.”
[47] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant seeking the grant of a further period in which to make an application. 10 A decision as to whether a further period to make an application should be granted, involves the exercise of discretion.11 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.12
[48] It is also not correct to construe exceptional circumstances as being only some unexpected occurrence, although frequently it will be. 13 It is also necessary to consider all relevant circumstances even where some or all are not exceptional in order to determine whether in combination, the circumstances may be regarded as exceptional.
[49] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account each if the matters in s.366(2) of the Act. I will consider each of those matters in turn.
Reasons for the delay
[50] The reason for delay advanced by the Applicant is representative error on the part of his legal representative. Generally parties who place matters in the hands of a legal representative and take all reasonable steps to ensure that instructions are provided that are sufficient to enable steps to be undertaken as required by the Act, 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.
[51] In Robinson v Interstate Transport Pty Ltd, 14 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. In that case the Full Bench held that the conduct of the Applicant is a central consideration to deciding whether representative error provides an acceptable explanation for delay.
[52] 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. 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.15 Representative error can include inactivity or carelessness of an applicant’s representative.16 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.
[53] In the present case, I accept that there was a representative error on the part of Mr Lewis’ legal representative Ms Fredericks, with respect to assessing the date by which the application was required to be made. I also accept that the legal representative’s error meant that she left the preparation of the application until the afternoon of the last day on which it could be filed – 23 November 2017. Further, it is apparent that there was inactivity on the part of Ms Fredericks in leaving preparation of a final draft of the application until 23 November 2017.
[54] The evidence of Ms Fredericks in relation to the error and inactivity is essentially concerned with taking the blame for the late lodgement of the application and does not address the action that Mr Lewis took to provide instructions and to comply with requests for information about the factual basis for his claim and when Mr Lewis took that action. Mr Lewis’ evidence on this point is also somewhat vague.
[55] The evidence establishes that Mr Lewis consulted Ms Fredericks on 3 November 2017, the day after his dismissal took effect. At that time, on his own evidence, Mr Lewis knew that he had been dismissed with effect from 2 November 2017. Mr Lewis was also informed at the meeting with Ms Fredericks that he had 21 days from the date his dismissal took effect to file the application. Thereafter he provided instructions to send two pieces of correspondence to Hitachi. The first piece of correspondence evidences nothing other than the Firm of Anderson Fredericks Turner acts for Mr Lewis in an unspecified matter and that Ms Fredericks was in the process of obtaining instructions with a view to informing Hitachi about his “position moving forward.”
[56] Assuming that the second piece of correspondence – the “without prejudice” correspondence that was not tendered – was an offer to settle the matter, it was not sent until 15 November 2017. There is no explanation of what, if any, activity by either Ms Fredericks or Mr Lewis took place between 6 November and 15 November 2017. Ms Fredericks’ evidence is that she held instructions to attempt to settle the matter. Ms Fredericks does not state that she held instructions to file a general protections application at any time prior to 6.18pm on 23 November 2017. Ms Fredericks’ only evidence is that she obtained instructions to file the application after no response was received to the correspondence sent to Hitachi on 15 November 2017, but did not give any evidence as to when she was given that instruction.
[57] There is evidence that Mr Lewis followed up on the progress of his matter by confirming on 21 November 2017 that no response had been received from Hitachi to the letter of 15 November 2017. Mr Lewis states that he gave instructions for the General protections application to be filed, but does not state when he gave those instructions. Mr Lewis further stated in cross-examination that he received a draft of the application prior to it being filed but was not able to be specific about when the draft was received other than stating that it was around the 20 – 21 day mark.
[58] That evidence is at odds with the email attaching the draft application sent to Mr Lewis at 4.06 pm on 23 November 2017. If Mr Lewis had given clear instructions to file a General protections application before that date and had received a draft of that application prior to 23 November 2017, it is unlikely the covering email from his legal representative would have requested confirmation of his contact telephone number and address at that point. The covering email sent with the draft application on 23 November 2017 is not consistent with clear instructions to file the application being given by Mr Lewis at an earlier time.
[59] It is not sufficient in a case where representative error is asserted as the reason for the delay in lodging an application, and said to be a significant consideration in establishing exceptional circumstances, that a legal representative engages in a mea culpa. That is not sufficient to establish exceptional circumstances. What is also required is evidence to justify a finding that the applicant is blameless including evidence about steps an applicant who has been impacted by representative error took to prosecute his or her application and when those steps were taken.
[60] Ms Fredericks made a valiant effort to accept full blame for the late lodgement of the application. Mr Lewis’ somewhat vague assertions about when he took various steps were not explored in cross-examination. As a result, while I am not satisfied that Mr Lewis was entirely blameless in the late lodgement of his application I am satisfied that a greater proportion of the blame for the late filing lies with Ms Fredericks. In particular, I am satisfied that Mr Lewis approved the draft application at 6.09pm on 23 November 2017 and that if it had been filed before midnight on that date, Mr Lewis’ application would have been filed within the required time.
[61] The combined effect of the failure by Ms Fredericks to prepare the application in a timely manner and to file it in the required time, generated by the incorrect conclusion Ms Fredericks reached in relation to the date the dismissal took effect, outweighs any inactivity on the part of Mr Lewis, and is a factor in favour of the exercise of the discretion to grant a further period in which to make a general protections application to Mr Lewis.
Any action taken by the person to dispute the dismissal
[62] I accept that Mr Lewis took prompt steps to seek legal advice and met his legal representative to discuss his options with respect to the manner that Hitachi had dealt with him, on 3 November 2017 – the day after his dismissal took effect. Thereafter, the evidence about what Mr Lewis did to dispute the dismissal is not clear. The letter of 6 November 2017 simply informs Hitachi that Ms Fredericks is in the process of obtaining instructions from Mr Lewis “with a view to informing Hitachi of his position moving forward”. Mr Lewis was also asserting that he had been subjected to sexual harassment. Further, Mr Lewis had resigned his employment for the purpose of retirement and had been paid out the four weeks notice that he had intended to work. In all of the circumstances, the letter of 6 November 2017 does not establish that Mr Lewis was disputing his dismissal.
[63] Further, it is not clear whether the “without prejudice” letter sent to Hitachi on 15 November 2017 raised the issue of Mr Lewis’ dismissal. For the purposes of dealing with the question of whether Mr Lewis should be granted a further period to file a General protections application, I am prepared to assume that the letter did raise the dismissal, and seek some form of compensation for it and that Mr Lewis did indicate that he disputed the manner in which Hitachi had dealt with him, including alleging that he was dismissed before the expiration of his notice period.
[64] This is a matter that weighs in support of the exercise of discretion to grant a further period to Mr Lewis. However I am not prepared to give the matter significant weight given the fact that the letter of 15 November 2017 was not tendered and that the foreshadowed application to tender it was not made by Mr Lewis’ legal representatives.
Prejudice to the employer (including prejudice caused by the delay)
[65] Hitachi accepts that the short period of delay in the present case did not of itself create a prejudice to the Respondent, but relied on the decision in Brodie-Hanns v MTV Publishing Ltd 17 to assert that the mere absence of prejudice was an insufficient basis to grant an extension. However, Hitachi contended that if the Commission was to grant an extension of time that the Respondent would be denied the freedom from liability that the time limitation put in place by Parliament affords it.18
[66] Hitachi provided no evidence of prejudice if an extension is granted other than the usual prejudice associated with being required to defend the application. This is a matter that weighs in support of the exercise of discretion to grant a further period to Mr Lewis.
Merits of the application
[67] In the matter of Kornicki v Telstra-Network Technology Group19 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.”20
[68] After considering the material filed by the parties it is clear that there are factual disputes between the parties – in particular about the effect of the conduct at the August 2016 function. Hitachi also raises issues associated with the timing of the application and the motive for making it. Those issues are not without substance. There was a lengthy delay between the incident Mr Lewis complains of and the time at which he complained about the matter. Further, Mr Lewis only complained when his attempts to retain his mobile telephone on leaving employment were not successful. It is also the case that Mr Lewis had already resigned and was working out his notice period when Hitachi terminated his employment and paid him in lieu. However, those issues could only be resolved at hearing after consideration of evidence. Accordingly, I am not satisfied that the application has no 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 should weigh in favour of an extension. Merit is in my view a neutral factor in this case.
Fairness as between the person and other persons in a similar position
[69] In the particular circumstances of this case there are no other employees of Hitachi in the same position as the applicant. If fairness is considered in a General sense, it is well established that representative error is a factor which has been accepted as an exceptional circumstance triggering the discretion to extend time. In such cases no issue arises with respect to fairness as between an applicant and other persons who have made applications outside of the required time for other reasons. It is equally well established that in cases where an applicant is blameless in the delay, representative error is a matter that is given significant weight in considering whether a further period in which to make an application should be granted.
[70] In the circumstances of this case where there are no other employees in the same position as Mr Lewis and this consideration weighs in favour of granting the further period. It is also a case where error and inactivity of Mr Lewis’ legal representative outweighed any inactivity on his part. To grant a further period in such a case is consistent with the manner in which other applicants who have been subject of representative error have been dealt with. I consider this factor to weigh in favour of the grant of a further period.
CONCLUSION
[71] After considering all of the relevant factors and weighing them, I am satisfied that there are exceptional circumstances sufficient for me to exercise my discretion to grant a further period for Mr Lewis to make a general protections application. A further period to 24 November 2017 for Mr Lewis to make his application in C2017/6507 is granted. I note that a conference before a Fair Work Conciliator has already been held. I am prepared to conduct a further conciliation conference if the parties agree to participate and request that they advise whether they wish to participate in such a conference by close of business on 2 April 2018.
DEPUTY PRESIDENT
Appearances:
Mr A. Anderson of Anderson Fredericks Turner on behalf of the Applicant.
Mr S Zevari of Australian Business Lawyers & Advisors on behalf of the Respondent.
Hearing details:
Brisbane.
30 January
2018.
<PR599913>
1 Witness Statement of Kerri-Lee Fredericks Exhibit A1; Witness Statement of Paul Adrian Lewis Exhibit A2.
2 Transcript of 30 January 2018 at PN120
3 Transcript 30 January 2018 PN80.
4 [2014] FWCFB 1070.
5 [1994] IRCA 2; 1994 122 ALR 333.
6 [1985] ICR 192.
7 Ibid at 196.
8 [2014] FWCFB 1070 at [17].
9 [2015] FWC 1312.
10 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
11 Halls v McCardle and Ors [2014] FCCA 316.
12 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
13 Nulty v Blue Star Group[2011] FWAFB 975 at [13].
14 [2011] FWAFB 2728.
15 Ibid at [25].
16 Clark v Ringwood Private Hospital (1997) 74 IR 413.
17 (1995) 67 IR 298
18 Transcript of 30 January 2017 at PN199.
19 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
20 Ibid.
Printed by authority of the Commonwealth Government Printer
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