Mr Paul Noble v Hanson Construction Materials Pty Ltd

[2015] FWC 358

[2015] FWC 358

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Paul Noble
v
Hanson Construction Materials Pty Ltd
(U2014/5154)

DEPUTY PRESIDENT ASBURY BRISBANE, 30 JANUARY 2015

Application for relief from unfair dismissal - extension of time - extension not granted - application dismissed

Introduction and factual background

[1] Mr Paul Noble (Applicant) applies for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act) with respect to the termination of his employment by Hanson Construction Materials Pty Ltd (Respondent). The Applicant states in his F2 Application for an unfair dismissal remedy that he was notified of his dismissal on 20 December 2013 and that it took effect on that date. The reason for dismissal submitted by the Applicant was that the Respondent was of the view that he was permanently incapable of recovering to the point of resuming normal driving duties, after the Applicant had injured his back. The application was made on 3 March 2014 and I issued an order dismissing the application on 28 August 2014 in PR554849. These are my reasons for doing so.

[2] By virtue of s. 394(2) of the Act an application for an unfair dismissal remedy 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 Applicant’s application was made fifty-two days outside the time required in s. 394(2). It is necessary to determine whether a further period should be allowed under s. 394(3) for the application to be made. That sub-section provides as follows:

(3) 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) 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

[3] 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. 1

[4] 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. 2 Each of the matters in s.394(3) is considered below.

[5] Directions were issued requiring the parties to file and serve material and statements of evidence upon which they proposed to rely, in relation to the question of whether a further period should be allowed for the Applicant to make his application. The parties were also requested to advise my Chambers as to whether they wished to cross-examine persons who provided statements. The parties did not request cross-examination any person who provided a statement. For reasons which will be apparent, it is not necessary to hold a hearing for this purpose and I have determined the matter on the basis of the material on the file.

Consideration

[6] The Act requires the Commission to be satisfied that there are exceptional circumstances in order to extend the period of time for a person to make an unfair dismissal application. 3 In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services4 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)5 as set out below:

“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” 6

[7] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.” 7

[8] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account those matters in s.394(3) of the Act. I will consider each of those criteria in turn.

Reasons for the delay

[9] The Applicant submits that the reason for the delay was due to representative error on behalf of the Applicant’s former legal representatives and asserts that he was not advised of the option to make an unfair dismissal application and the relevant timeframes associated with making such an application. The Applicant also submits that in a meeting with his former legal representative on 26 November 2013, termination of employment was discussed and that there was ample opportunity to give the Applicant advice in relation to making an unfair dismissal application.

[10] Further, the Applicant submits that he was not aware of his ability to make an unfair dismissal application, and consequently the 21 day time limitation of lodging such an application.

[11] The Respondent submits that there can be no representative error, as it is apparent from the material submitted by the Applicant that his former legal representative was acting within the scope of the Applicant’s instructions to provide advice in relation to superannuation and workcover matters and although it was raised that the Applicant’s employment may be terminated, the Applicant did not specifically seek advice on available actions against the Respondent in relation to the termination of his employment.

[12] As to representative error the Full Bench decision in M N Robinson v Interstate Transport Pty Ltd 8 considered representative error in terms of an extension of time for an application filed pursuant to s.365 of the Act. While that decision relates to s.366 of the Act it is relevant to a consideration pursuant to s.394(3) of the Act.

[13] In that decision the Full Bench stated:

“[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case 9 in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidsons’s Case10 in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case11 found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act.12 We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the application was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.

[25] The approach in Clark’s Case was summarised in Davidson’s Case as follows:

“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(i) Depending on the 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.””

[14] The Full Bench in D La Rosa v Motor One Group Pty Ltd 13 noted the following extract in regard to representative error causing a short delay as per the current circumstances:

“[31]... in the context of s.170CE of the WR Act:

“As is evident from Clarke, little might be required to satisfy the Commission that the Applicant was blameless in the delay. In the context of a relatively short delay, it may simply be a matter of establishing that the Applicant gave instructions to lodge [in this case] a Notice of Election and thereafter left matters in the hands of his or her representative.” 14

[15] A representative error, where the Application was blameless, would constitute an exceptional circumstance. 15 When determining whether representative error constitutes an acceptable explanation for delay, the conduct of the Applicant is a central consideration.16 The representative needs to have made an error through no fault of the Applicant, and despite the Applicants efforts to ensure that the claim is lodged.

[16] I agree with the Respondent’s submissions. The material before the Commission indicates that while dismissal may have been discussed between the Applicant and his former legal representatives, it was done so in an abstract way as at the time, the Applicant was still employed with the Respondent. A letter from the Respondent’s former legal representatives, relied upon by the Applicant in his application for an extension of time, states:

“Further, we note that Mr Noble’s employment had not at that stage been terminated.

Further, on 18 December 2013, Mr Noble spoke with [Lawyer] at this office in relation to his employment situation and was specifically informed that we...were unable to give him advice and that he should contact his union who may refer him to our industrial law unit in Brisbane.” 17

[17] No error can be attributed to the Applicant’s former legal representatives relevant to the delay in this matter.

[18] The Applicant relies upon an ignorance of the statutory timeframe within which the file an unfair dismissal application. Decisions of this Tribunal and other Courts have consistently emphasised that “lack of knowledge of a time limitation has been rejected ... as a ground for the exercise of the Tribunals discretion”. 18 Further, “delay on account of ignorance of the statutory time limits is not, of itself, an exceptional circumstance”.19

Whether the person first became aware of the dismissal after it had taken effect

[19] It is not in dispute that the Applicant was aware that his employment had been terminated on 20 December 2013.

Any action taken by the person to dispute the dismissal

[20] I accept that the Applicant took steps to seek advice on some work related matters with the potential for the Applicant’s employment to be terminated on or after 20 December 2013. Phone records produced by the Applicant indicate that the Applicant made calls to his former legal representatives prior to the date of dismissal however there is no evidence before me which indicates that the Applicant attempted to make contact with his former legal representatives after the date of dismissal.

[21] The Applicant submits that due to his dissatisfaction with the service and lack of communication from his former legal representatives, he sought the advice of his current legal representatives. This advice was sought on 18 February 2014. The Applicant did not submit any evidence of steps taken to dispute the dismissal itself during the period between 20 December 2013 and 18 February 2014.

Prejudice to the employer (including prejudice caused by the delay) and merits of the application

[22] There is no evidence of any prejudice to the Respondent if an extension is granted other than the usual prejudice associated with being required to defend the application.

[23] In the matter of Kornicki v Telstra-Network Technology Group 20the Commission considered the principles applicable to the discretion to extend time discretion 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 lodgment. 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.” 21

[24] I am unable to be satisfied that the merits of the application are such that this factor should be given greater weight that the other factors I am required to consider.

Fairness as between the person and other persons in a similar position

[25] As stated above, I am not satisfied that the circumstances of the Applicant to be exceptional and consider that it would be unfair to other persons in similar circumstances who have not been allowed a further period to make an unfair dismissal application, to allow a further period for the Applicant’s application to be made.

Conclusion

[26] The Applicant has not demonstrated that there are exceptional circumstances sufficient for me to exercise my discretion to extend time. I refuse the application for an extension of time. The Application has been filed outside of the time required by s.394(2)(a) of the Act. The application must be dismissed. An order to that effect was issued on 28 August 2014 in PR554849.

DEPUTY PRESIDENT

 1   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

 2 Ibid at [15].

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

 4  Wheelan C, [2009] FWA 1638, [30] and [31].

 5   Lawler VP, [2010] FWA 1394.

 6   In this regard Wheelan C referred to Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.

 7   Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5].

 8   [2011] FWAFB 2728.

 9 (1997) 74 IR 413.

 10   Print Q0784.

 11   [2011] FWAFB 466.

 12 Ibid at [35].

 13   PR924583, decision of Watson SDP, Kaufman SDP and Foggo C, 12 November 2002.

 14   PR924583 at para 24.

 15   M N Robinson v Interstate Pty Ltd[2011] FWAFB 2728.

 16   Clarke’s Case (1997) 74 IR 413; Davidson’s Case Print Q0748; Alicia Atkinson v Vmoto Limited; Yi (Charles) Chen; Trevor Beazley [2012] FWA 9043.

 17   Affidavit of Rebecca Joyce Crockett, Annexure RJC1.

 18   Matt Dain v Sam Bradley & Robert Grant [2012] FWA 7276.

 19   Nulty v Blue Start Group Pty Ltd [2011] FWAFB 975.

 20   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 21   Ibid.

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