Mr Richard Batemberski v Cape Flattery Silica Mines

[2014] FWC 2219

[2014] FWC 2219

FAIR WORK COMMISSION

DECISION

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

Mr Richard Batemberski
v
Cape Flattery Silica Mines
(U2013/2831)

DEPUTY PRESIDENT ASBURY BRISBANE, 9 APRIL 2014

Application for relief from unfair dismissal - jurisdictional objection - extension of time - extension granted.

BACKGROUND

[1] Mr Richard Batemberski applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Cape Flattery Silica Mines (the Respondent). Mr Batemberski’s dismissal took effect on 24 July 2013 and the application was made on 23 August 2013, nine days outside the time allowed in s.394(2) of the Act.

[2] The application was listed for Directions Conference and Directions were issued requiring the parties to file and serve outlines of submissions, witness statements and any documentary material in relation to the extension of time application. Both parties provided outlines of submissions. A Witness statement in support of the extension of time application was made by Mr Batemberski.

[3] The parties were requested to advise the Commission on receipt of that material, whether they wished to cross-examine any person who had provided a witness statement. The Respondent advised that it wished to cross-examine Mr Batemberski. A telephone hearing was convened for that purpose.

LEGISLATION AND ISSUES FOR DETERMINATION

[4] 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). That sub-section provides as follows:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position

[5] 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

[6] Even when exceptional circumstances are established, a 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

[7] The reason given by Mr Batemberski for the delay is a series of representative errors on the part of a number of law firms that Mr Batemberski thought were representing him. In Robinson v Interstate Transport Pty Ltd, 3 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.

[8] 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 a finding that there are exceptional circumstances will be made. 4 Representative error can include inactivity or carelessness of an applicant's representative.5

[9] Generally, parties who place matters in the hands of a legal representative or paid agent 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.

[10] The issue for determination is whether in the circumstances of this case, representative error is a basis for finding that there are exceptional circumstances that trigger the discretion to extend time. If it is found that there are exceptional circumstances, it is then necessary to determine whether it is fair and equitable to extend time.

CONSIDERATION

The reason for the delay

[11] Mr Batemberski resides in Cooktown, in far north Queensland. He gave evidence of attempts to obtain advice from a number of legal firms in Darwin and North Queensland, and of failure on the part of those firms to respond to him in a timely manner. Given that those firms have not been heard in these proceedings I have not identified them. However, I am satisfied on the basis of correspondence tendered by Mr Batemberski as to their existence and to the part they played in the events described by Mr Batemberski.

[12] Subsequent to Mr Batemberski’s dismissal, on 25 July 2013, his partner contacted a legal firm in Darwin, Northern Territory. Mr Batemberski’s stated that this contact was made for that firm to “represent [him] in an Unfair Dismissal Claim”. 6 Attached to Mr Batemberski’s statement are four emails dated 25 July, 31 July, 1 August and 19 August 2013. An internet search locates a firm of lawyers as identified by Mr Batemberski in Darwin. The website for that firm confirms that the email address used by Mr Batemberski is an email address advertised by that firm for contact.

[13] Mr Batemberski stated that he did not receive a response to these emails. Around 1 August 2013, Mr Batemberski became concerned about the lack of response and telephoned the firm leaving a number of messages. Mr Batemberski states that he did not receive a response to those calls.

[14] Mr Batemberski states that, on an unspecified date, he consulted another legal firm, who referred him to a third firm, situated in Cairns. Mr Batemberski contacted that firm on the same day to organise a “meeting”. The first available meeting was said to be 9 August 2013, in Cairns. This meeting was later rescheduled by the firm to 12 August 2013. Mr Batemberski drove from Cooktown to Cairns, return, a distance of some 800km, on 12 August 2013, to attend the interview. Mr Batemberski did so in the belief that the third firm was now acting on his behalf.

[15] After not having had any further contact from that firm, Mr Batemberski’s partner sent an email to a lawyer at the firm, stating:

“I am contacting you in regard to your meeting with Richard on Monday 12/08/2013.

When Richie met with you, you advised that we would be receiving some paperwork from your office and we are wondering when this may be. I am not trying to rush you, but as this is foreign territory for us, we are unsure how long this takes and keep checking the emails for something to come through.”

[16] Following the email above, Mr Batemberski stated that, on 23 August, he received a letter, dated 15 August 2014, from the third firm, advising Mr Batemberski that employment law was not an area that the firm was familiar with and referring Mr Batemberski to a fourth law firm. There is no mention in this correspondence of any possible timeframes to commence action of any sort. This correspondence states that it was also sent by email. Mr Batemberski’s evidence is that the email address on that correspondence is incorrect, referring to “.co.au” rather than “.com.au”.

[17] Mr Batemberski subsequently contacted the fourth law firm, again located in Cairns. Mr Batemberski stated that he was advised that this firm required an up-front payment of $5,000 and that the total cost of any representation was likely to be $30,000.

[18] Mr Batemberski was not satisfied with this figure and continued his search for representation. On 23 August 2013, Mr Batemberski contacted Just Relations, his present representative. The application was filed on the same day.

[19] The Respondent submitted that the first firm, did respond to Mr Batemberski, and that the evidence filed by Mr Batemberski does not establish representative error on behalf of that firm. An additional email was tendered by Mr Batemberski dated 1 August 2013 from a Lawyer of that firm relevantly stating:

“We refer to your email dated 30 and 31 July 2013. We confirm that there was no attachment (termination letter) with the email you sent on Wednesday.

As explained to you over the phone, while it seems like an unfair dismissal, we can only advise you about your options once we have seen the paperwork. Please resend me the termination letter.

We will organise a terms of engagement for you to sign and return as well.”

[20] It is to be noted that this email indicates that Mr Batemberski had not entered into any formal retainer with the first firm as at 1 August 2013. The email does refer to “terms of engagement” being prepared. It is not in evidence that this ever occurred. The email does not make reference to any possible timeframes that may apply to the application, although it does identify unfair dismissal proceedings as a possible avenue open to Mr Batemberski. It was not put to Mr Batemberski during cross-examination that his evidence in this regard was untruthful.

[21] The Commission put to Mr Batemsberski that in the material before the Commission it was not in evidence that he did clearly instruct any of the firms to file an application in relation to unfair dismissal. Mr Batemberski responded:

“Well, in the body of that email it says, "In your opinion, has Richard been unfairly dismissed and, if so, do we have a good case? How long could this take to run its course? How much could it cost us?" et cetera. The proposition I'm putting to you is that what I can see is a lot of questions about whether you should take the case or not, but nowhere do I see any instruction to say, "File a claim for me." Do you want to respond to that?---I thought by getting a legal representative, that they would sort all that out for me, otherwise if I knew what I know now, I would have actually done it myself; but I didn't know any of the proceedings or how it - I've never had anything to do with any of this.” 7

[22] And further:

“And is it your evidence that of all these lawyers that you spoke to, nobody said to you that you have to make an unfair dismissal claim in the Fair Work Commission and you've got 21 days to make it from the date you were dismissed?

---[the final firm] did.

And when did he say that?---On the same day that I was talking to him and he informed me of the money involved. He gave me a time limit. I think it was the day before and he said, "If I haven't heard from you by 10 o'clock the next morning and the money is in the bank, forget about it." I just thought, well, I don't have a job. I can't afford it.” 8

[23] In my view, it is out of the ordinary course, unusual, special or uncommon for four separate law firms to have failed to advise or inform a person seeking advice in relation to dismissal of the time limit applicable to unfair dismissal applications, or to have taken some step to lodge an unfair dismissal application.

[24] It is also unusual for law firms to take the amount of time that was taken in this case to provide simple responses to the effect that an unfair dismissal application could be made. Further it is unusual for a person seeking advice to be requested to make an approximately 800km roundtrip to consult a law firm, only to have that firm advise that this was not an area of law within which that firm practiced and that specialist advice should be sought. I cannot see why that information could not have been provided over the telephone when Mr Batemberski sought advice about an area of law the firm did not practice in.

[25] I also note that the correspondence from the firm does say “I briefly outlined to you in our discussions the type of proceedings...in relation to wrongful dismissal cases”. However, there is no mention of any timeframe that may apply in relation to the “type of proceedings”. This is again an unfortunate response from a firm of lawyers.

[26] I am satisfied that the series of unfortunate responses from law firms, each of which who appear to have fobbed Mr Batemberski off without referring to or considering any timeframe that may apply to an application, amounts to an acceptable reason for the delay. I am also satisfied that Mr Batemberski has not contributed to the delay. There is no evidence that any of the firms did not provide advice because they were waiting for Mr Batemberski to provide further information. The evidence demonstrates that Mr Batemberski was actively pursuing advice and provided any documents or correspondence in a timely manner.

[27] It is also the case that on the day that Mr Batemberski obtained representation this application was filed.

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

[28] While there was some confusion about whether the dismissal took effect on 24 or 25 July 2013, Mr Batemberski conceded at Hearing that he was aware of the dismissal on 24 July 2014.

Any action taken by Mr Batemberski to dispute the dismissal

[29] The chronology of events recounted above evidences that Mr Batemberski has been proactive in seeking advice following his termination. He has taken steps in an attempt to dispute the dismissal. There is no period of time in which Mr Batemberski was not doing anything, albeit that he was waiting for contact from law firms from which he had sought assistance. This is not a case where an Applicant has sat on his hands, and passively left the matter in the hands of others.

[30] In response to questioning from the Commission, Mr Batemberski confirmed that he did not search the Commission’s website because, right up until the day of the filing of his application, none of the representatives advised him that an unfair dismissal application could be made to the Fair Work Commission. While Mr Batemberski conceded that he was aware of the term “unfair dismissal” he did not search for this term but rather relied upon legal assistance in this regard.

Prejudice to the employer (including prejudice caused by the delay)

[31] The Respondent has submitted that another employee involved, who Mr Batemberski has submitted at this preliminary stage gave him authority to take the actions which lead to his dismissal, is no longer in the employment of the Respondent. The Respondent’s submission is that this witness may not be willing to provide evidence to the Commission.

[32] I do not accept this submission. If Mr Batemberski’s evidence is correct, that the evidence of this witness will be that he gave authority for Mr Batemberski to take the action that he did, then that is surely an evidentiary matter that may operate to the prejudice of Mr Batemberski, not the Respondent. In any event, the witness could be compelled to give evidence by order of the Commission, an order that can issue on the application of either party or on the Commission’s own initiative. I note that Mr Batemberski also relies upon the evidence of a foreman, as authorising the actions. The Respondent has not submitted that this employee is unavailable to provide evidence in relation to the matter.

[33] The Respondent submitted that the delay would also put the Respondent to “additional cost and time” in contacting the additional witness. I do not accept that a delay of nine days could significantly impact upon the costs involved in defending the matter, or increase those costs from the level they would be if the application was made within the required time.

The merits of the application

[34] Mr Batemberski was terminated for allegedly stealing the Respondent’s property. Mr Batemberski submitted that he had authority to remove the property. It is conceded by Mr Batemberski that he didn’t complete the form that was required by the Respondent from employees when they were removing property for personal use. Mr Batemberski also conceded that he had completed this process on 8 previous occasions; however Mr Batemberski has stated that it was his intention to complete the form but that he was terminated prior to being able to do this. I note that the Respondent has submitted that there was approximately 12 months between when Mr Batemberski alleges he received authorisation to remove the property and when he did remove the property and was terminated, having still not completed the appropriate form.

[35] Notwithstanding this, I am unable to conclude on the material that the application is entirely without merit.

Fairness as between Mr Batemberski and persons in a similar position

[36] Representative error is a factor which has been accepted as an exceptional circumstance triggering the discretion to extend time, in circumstances where the applicant is blameless in the delay. In such cases no issue can arise with respect to fairness as between an applicant and other persons who have made application outside of the required time, for other reasons.

[37] There is no evidence that there are any other matters particular to this case that are relevant to this consideration.

CONCLUSION

[38] The application was filed in the FWC Registry in Queensland on 23 August 2013. It was required to be filed by 5.00pm on 14 August 2013. The application is nine days late.

[39] Notwithstanding this, I am satisfied that the reasons given by Mr Batemberski for the failure to make his application within the required time constitute exceptional circumstances. Mr Batemberski sought assistance from a series of law firms and received inadequate responses. It is the inadequacy of those responses that occasions the delay, rather than any failure on the part of Mr Batemberski to give instructions to make the application. As soon as a firm responded to him, he gave instructions to file the application on the same day that he first was advised of the timeframes in making an application.

[40] While no evidence has been called from the relevant law firms, the documentary evidence before me does indicate failing, on the part of each of the advisors that Mr Batemberski consulted.

[41] In all of the circumstances I am satisfied that it would be fair and equitable to extend the time for filing the application by nine days. An extension of time to 23 August 2013, the date on which the application was filed, is granted.

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   [2011] FWAFB 2728.

 4 Ibid at [25].

 5   Clark v Ringwood Private Hospital (1997) 74 IR 413,

 6   Statement of Mr Richard Batemberski at paragraph 3.

 7   PN177.

 8   PN184 to PN185.

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