Mrs Robyn Teese v Andrew Gleeson Plumbing Pty Ltd as trustee for the Gleeson Family Trust

[2013] FWC 6314

[2013] FWC 6314

FAIR WORK COMMISSION

DECISION

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

Mrs Robyn Teese
v
Andrew Gleeson Plumbing Pty Ltd as trustee for the Gleeson Family Trust
(U2013/481)

DEPUTY PRESIDENT ASBURY BRISBANE, 30 AUGUST 2013

Application for unfair dismissal remedy - Jurisdiction - Extension of time.

BACKGROUND

[1] Mrs Robyn Teese applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her dismissal by Andrew Gleeson Plumbing Pty Ltd as trustee for the Gleeson Family Trust. Mrs Teese’s dismissal took effect on 29 January 2013 and the application was made on 20 February 2013, one day outside the time allowed in s.394(2) of the Act. The application was not signed. The Commission corresponded with Mrs Teese’s legal representative on 20 February 2013 indicating that the application should be signed and returned, and this request was attended to on that date.

[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. Witness statements in support of the extension of time application were made by Mrs Teese and by Ms Claire Harrison, a Solicitor with McCarthy Durie Lawyers, Mrs Teese’s legal representative. A statement in opposition to the extension of time was provided Mr Andrew Gleeson, a Director of Gleeson Plumbing Pty Ltd.

[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. No advice was received and the matter is determined on the basis of material on the file.

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 FWA 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 Mrs Teese for the delay is administrative error on the part of her legal representative, on the basis that the legal representative failed to lodge the application within the required time. 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] On 29 January 2013, the day her dismissal took effect, Mrs Teese consulted McCarthy Durie Lawyers, and met with Ms Harrison of that firm on 31 January 2013 to discuss the matter. Correspondence was forwarded to Mr Gleeson on 4 February 2013, disputing the calculation of termination entitlements undertaken by the Company and raising the possibility of claims for other statutory entitlements. The letter concludes by stating that Mrs Teese is aware of her entitlement to commence unfair dismissal proceedings in the Commission and is considering her position, and reserves her rights in this regard.

[12] A further letter was sent to Mr Gleeson on 4 February 2013 setting out an offer of settlement on behalf of Mrs Teese, and requesting a response by close of business on 7 February 2013. Mrs Teese and Ms Harrison state that this deadline was set to ensure that there was sufficient time to file an unfair dismissal application if necessary.

[13] On 7 February 2013 Ms Elliot of McKays Solicitors, responded on behalf of Mr Gleeson advising that instructions were being taken from Mr Gleeson and that a further response would be provided sometime early in the following week.

[14] On 13 February 2013, Ms Harrison sent an email to McKays Solicitors advising that, notwithstanding the fact Mrs Teese had not consented to an extension of the 7 February deadline, as no response had been received, the firm would confer with Mrs Teese about any additional steps to be taken in regard to her dismissal, leave entitlements and final pay.

[15] On 13 February 2013 McKays Solicitors sent a letter by email to McCarthy Durie Solicitors, which was received at 6.07 pm, setting out a response to earlier correspondence. That letter raised what Mrs Teese said were new matters in relation to her dismissal, including a threatened counter-claim against her for damages for failure to take due care in respect of a claim for unpaid entitlements, on the basis that if there was an underpayment of any entitlements, Mrs Teese had been responsible for maintaining her own records. The letter also foreshadowed that Gleeson Plumbing was considering involving the police in relation to Mrs Teese’s leave entitlements. Ms Harrison said that she received this letter on the morning of 14 February 2013 and sent it to Mrs Teese.

[16] Mrs Teese emailed information to Ms Harrison in response to that letter at 4.45 pm on Friday 15 February 2013 and requested that Ms Harrison telephone her. On Monday 18 February 2013 Mrs Teese had a discussion with Ms Harrison about her concerns at the prospect of lengthy and costly proceedings if Gleeson Plumbing made a counter-claim against her. At the conclusion of those discussions, Mrs Teese gave Ms Harrison instructions to prepare an unfair dismissal application.

[17] Ms Harrison had other matters to attend to on 19 February and on 20 February at 12.06 am sent a copy of a draft unfair dismissal application to Mrs Teese for review. After discussing some minor amendments with Mrs Teese, Ms Harrison filed the application at 1.05 pm on 20 February 2013. Ms Harrison said that in hindsight, she should have reprioritised her workload and planned better to ensure that the application was lodged within the required time, and that it is her error that resulted in the application being made one day late.

[18] Mrs Teese submits that the application is four business hours late and that in addition to representative error, a significant reason for the delay was the failure of Gleeson Plumbing to respond to the letter sent on 4 February 2013, because a response was not sent until 6.07 pm on 13 February 2013, resulting in the response not being received until the morning of 14 February 2013.

[19] Gleeson Plumbing submits that it has not been established that Mrs Teese’s application was lodged at 1.09 pm on 20 February 2013, because Mrs Teese has not provided evidence of any electronic acknowledgement from the Commission of the application being filed. Gleeson Plumbing also disputes the assertion that representative error is the principle reason for the delay, and points to Mrs Teese’s evidence that she struggled to decide whether to make an application after receiving the response from Gleeson Plumbing to her earlier correspondence.

[20] It is further submitted that because Mrs Teese did not provide instructions to her representative to make the application until 18 February 2013, that she has contributed to the delay and that an adverse inference should be drawn because there is no evidence about whether a deadline was provided to Mrs Teese by her legal representative, for her to provide instructions.

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

[21] Mrs Teese states that she was dismissed on 29 January 2013 and that the dismissal took effect immediately. There is no question as to when Mrs Teese first became aware of the dismissal.

Any action taken by Mrs Teese to dispute the dismissal

[22] Mrs Teese took almost immediate action to dispute the dismissal, by contacting a firm of solicitors, meeting with a solicitor and causing a number of letters to be written to Mr Gleeson and to the Company’s legal representative disputing her dismissal and other matters. There is also evidence that Mrs Teese’s legal representative followed the matter up when no response was received to the initial correspondence by the date until which the offer remained open.

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

[23] Mr Gleeson said that the response to Mrs Teese sent on 13 February 2013 notified her that the Company was considering investigating further instances of possible misconduct and whether it had a counter claim against her. Mr Gleeson also said that the response provided clarification of relevant events which he believed that Mrs Teese did not recall, and he thought that the information provided in the response would cause Mrs Teese to refrain from lodging an unfair dismissal application.

[24] Mr Gleeson also said that as a result of the delay in making the application, he had assumed that it would be dismissed on the basis that it was out of time. Due to this uncertainty, Gleeson Plumbing refrained from spending time and resources on conducting further investigations into potential incidents of misconduct by Mrs Teese. Should the Commission grant an extension, it is contended that Gleeson Plumbing will have less time to gather evidence to make its case against Mrs Teese in relation to subsequently discovered misconduct.

[25] In particular, Mr Gleeson said that Gleeson Plumbing maintains an external email exchange company to host and store emails and documents are only archived and stored for 12 months. With every day that passes, emails are removed from the archive, causing prejudice to the investigation of potential misconduct on the part of Mrs Teese. Mr Gleeson also said that he has found the extended uncertainty about the application to be mentally and emotionally draining.

The merits of the application

[26] Mrs Teese said that on 29 January 2013, she arrived at work and was told that her employment was to be terminated. Mr Gleeson offered her two cheques, including one for an amount comprising an additional five weeks wages said to be redundancy pay, if she signed a deed of settlement.

[27] Mrs Teese submits that she has had 7 years unblemished service and has made a significant contribution to Gleeson Plumbing including by advancing loans from her own funds of various amounts totalling $115,000.00 to enable the Company to continue to operate. Mrs Teese further submits that she was given no notification of the meeting that resulted in her dismissal and did not have an opportunity to respond to allegations, because Mr Gleeson had already made up his mind to dismiss her as evidenced by the fact that he had prepared two cheques prior to the meeting and told her that she could have a cheque for a higher amount if she signed a deed of release. Mrs Teese also states that she is 62 years of age and will have great difficulty in obtaining other employment.

[28] Mr Gleeson refers to the Employer’s response to the application filed by Gleeson Plumbing which makes various allegations about Mrs Teese’s conduct with respect to failing to lodge tax returns resulting in Gleeson Plumbing incurring fines which Mrs Teese is alleged to have concealed, and misrepresentation by Mrs Teese of her leave entitlements.

[29] It is clear that there are factual disputes between the parties, and I am unable to conclude that the application is without merit.

Fairness as between Mrs Teese and persons in a similar position

[30] 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.

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

CONCLUSION

[32] The application was filed in the FWC Registry in Queensland on 20 February 2013. It was required to be filed by 5.00pm on 19 February 2013. The application is one day late. There is no basis for arguing that it is four “business hours” late.

[33] Notwithstanding this, I am satisfied that the reasons given by Mrs Teese for the failure to make her application within the required time constitute exceptional circumstances. Mrs Teese gave instructions to her legal representative to file the application on the day before it was required to be filed.

[34] Ms Harrison concedes that she should have prioritised her work load so that the application could have been filed within the required time, and this is not a matter that should be laid at the feet of Mrs Teese. I am also of the view that there is no inappropriate delay on the part of Mrs Teese. Faced with a letter threatening her with police action and a possible counter claim, it is understandable that she would have cause for concern and to think carefully about her next step. That was exactly the purpose of the correspondence, and Gleeson Plumbing cannot complain that it had that effect, particularly in circumstances when Mrs Teese reached her decision about proceeding and instructed her legal representative accordingly, within the time required for the application to be filed.

[35] Mr Gleeson can have been in no doubt that Mrs Teese was contesting her dismissal. The delay of one day does not prejudice Gleeson Plumbing to the extent that it should outweigh other factors. Other prejudice outlined by Mr Gleeson is ordinarily associated with defending an unfair dismissal application. Further, it is not suggested in the evidence that documents in the electronic archive utilised by Gleeson Plumbing are permanently deleted after 12 months, but rather the suggestion is that they are simply removed from the archive.

[36] Given the Company was foreshadowing police action and a counter claim on 13 February 2013, it would be surprising if documents essential to such proceedings were permanently deleted.

[37] For the reasons set out above, the application is not without merit, and I am of the view that Mrs Teese should not be prevented from proceeding with it because of representative error for which she is blameless.

[38] In all of the circumstances I am satisfied that it would be fair and equitable to extend the time for filing the application by one day. An extension of time to 20 February 2013, the date on which the application was filed, is granted. Conciliation has not occurred pending the determination of the extension of time matter. The file will be referred for conciliation.

DEPUTY PRESIDENT

Final written submissions:

23 July 2013.

 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,

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