Mrs Wendy Wust v Act for Kids

[2013] FWC 2386

[2013] FWC 2386

FAIR WORK COMMISSION

DECISION

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

Mrs Wendy Wust
v
Act For Kids
(U2012/17148)

COMMISSIONER SPENCER BRISBANE, 7 MAY 2013

s.394 — Application for unfair dismissal remedy - application filed out of time - not exceptional circumstances

Introduction

[1] This decision relates to an application for an unfair dismissal remedy made by Wendy Wust, the Applicant, pursuant to s.394 of the Fair Work Act 2009 (the Act) on the grounds the termination of her employment by Act for Kids, the Respondent, was harsh, unjust or unreasonable.

[2] The Respondent raised a jurisdictional objection against the Applicant’s application on the basis it had not been filed within 14 days of the Applicant’s employment being terminated. The Applicant subsequently applied for an extension of time to lodge her application. The Respondent requested the jurisdictional objection be determined prior to conciliation of the substantive matter.

[3] Directions were set for the filing of evidence and submissions in relation to the jurisdictional objection. Both parties filed material, namely, each party filed an outline of submissions with attachments. The parties agreed to have the jurisdictional objection regarding the extension of time dealt with on the papers.

[4] This decision relates to the extension of time issue only.

[5] While all the material filed in this application has not been specifically referred to, all of such has been considered.

Background

[6] On 10 October 2012 the Respondent terminated the Applicant’s employment. On 21 December 2012 the Applicant lodged an application with Fair Work Australia, as the Fair Work Commission (the Commission) was then known, for an unfair dismissal remedy against the Respondent.

[7] As at 10 October 2012, the date the dismissal took effect, s.394(2)(a) of the Act required an application for an unfair dismissal remedy to be made within 14 days after the dismissal took effect. The application was lodged on 21 December 2012, some 72 days after the dismissal took effect, and 58 days after the lapse of the 14 day timeframe.

[8] The Applicant stated that on being dismissed she contacted the Together Union (the Union), of which she is a member. The Union provided information and correspondence to the Respondent on behalf of the Applicant, and followed this up with further statements on 15 October 2012. In the correspondence the Union asked the Respondent to reconsider its decision to terminate the Applicant’s employment. On 22 October 2012 the Respondent reaffirmed the termination of the Applicant’s employment. Taking into account this further date of confirmation, the Application was still 46 days late.

[9] The Applicant stated that the Union encouraged the Applicant to seek assistance from Kowanyama Shire Council, though, she stated, they did not provide her with information or advice about timeframes for lodging an unfair dismissal application. There is no evidence that the Applicant sought further assistance from the Union in contesting the dismissal. There is also no evidence that the Applicant made any enquiries to Fair Work Australia or the Fair Work Ombudsman about the situation.

[10] The Applicant’s contact with the Kowanyama Shire Council and the West Cape York Peninsular Traditional Land Owners appears to have been limited to requesting written supporting evidence to provide to the Respondent, in an attempt to resume her employment with them.

[11] The Applicant did not seek legal assistance until 17 December 2012 when she contacted the Aboriginal and Torres Strait Islander Legal Service (ATSILS) who, on realising she was being assisted by the Union, referred her back to the Union.

[12] On 19 December 2012, the Applicant again contacted ATSILS as she had not been able to contact the Union. ATSILS contacted the Respondent that day on behalf of the Applicant to request her job back — the Respondent refused. ATSILS then assisted the Applicant in lodging her application for an unfair dismissal remedy, on 21 December 2012.

Legislative scheme

[13] In deciding whether to exercise the discretion to grant the Applicant an extension of time to lodge her application for an unfair dismissal remedy, the Commission must have regard to matters listed in ss.394(2) and (3) of the Act, as follows:

“394 Application for unfair dismissal remedy

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

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

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

Applicant’s submissions

[14] The Applicant argued that a combination of representative error and communication difficulties associated with her remote location caused the delay in the application.

[15] Further to the introductory submissions recorded, the Applicant relied on the case of Cheyne Leanne Nulty v Blue Star Group Pty Ltd 1, where the Full Bench summarised various decisions which dealt with the meaning of “exceptional circumstances” as follows:

“In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[16] The Applicant submitted that the reason for the delay was due to her reliance on information from the Union and ATSILS. The Applicant also noted that Kowanyama, where she is located, is a small indigenous community where communication services can be problematic and where there is no support or legal advice service.

[17] The Applicant submitted that the Respondent would not be prejudiced as the Commission has previously considered that an employer who was said to have recorded files and actions in some way was unlikely to be prejudiced. 2 While not elaborated upon, this submission related to any prejudicial effect, the delay may have upon the Respondent, in appropriately defending the matter, if it were to proceed to arbitration.

[18] In terms of the merits of the application, the Applicant submitted that she was not supported in her role by the Respondent, she had worked in unsafe conditions, had to use her own car for work purposes as the work car was not fit for the purpose, had to attend work whilst on sick leave, and made a number of other claims regarding the Respondent’s alleged contravention of workplace laws.

Respondent’s submissions

[19] The Respondent submitted that the Applicant has failed to provide evidence to support the two main submissions, namely that: the Union failed to provide the Applicant with accurate or timely advice regarding her rights and obligations in relation to an unfair dismissal application; and, the issue that the Applicant permanently resides in a remote location without access to reliable communications.

[20] The Respondent submitted it was at a disadvantage in refuting those claims due to the lack of evidence, but further submitted that if accepted, the Applicant’s submissions still fall short of the ‘exceptional circumstances’ test.

[21] In relation to the issues regarding the Together Union and ATSILS, which the Respondent characterised as purported representative error, the Respondent argued there is no evidence to suggest those representatives were responsible for the delay in filing an unfair dismissal application. The Respondent submitted that the Together Union is a large and experienced union, experienced with processing unfair dismissal matters and in the absence of evidence, it would not be likely, for it to be the reason, for the delay in filing. Further, it is considered that if it was responsible for the delay, it would outline such a case of representative error on behalf of its member to the Commission.

[22] The Respondent also submitted the Applicant did not contact the Respondent or Fair Work Australia (as the Commission was then known) for advice.

[23] The Respondent submitted that even if representative error can be shown, the Applicant did not meet the requirements of a dutiful litigant in pursuing her claim. The Respondent relied upon Robinson v Interstate Transport, 3 where a Full Bench found that representative error was justified in the circumstances of the case because:

Mr Robinson arranged legal advice three days after the termination of his employment. At that time Mr Robinson requested that Mr Tayler prepare a client agreement for his consideration and upon receiving the agreement, he executed the agreement on 13 May 2010, within a week of its receipt. On the day he executed the agreement, Mr Robinson instructed Mr Tayler to file a general protections application on his behalf. It is unsurprising that Mr Robinson, having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative’s requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of providing clear instructions to Mr Tayler to lodge his application.

[24] The Respondent noted that in Robinson v Interstate Transport, Mr Robinson met with and gave clear instructions to a legal representative to whom he also provided signed documents. It was then the legal representative, who failed to take any further action. The Respondent stated that in this case, the Applicant communicated with a number of organisations, who the Respondent stated, had no experience or authority in relation to employment matters and that there was no information to confirm whether the Together Union, had directed the Applicant to make inquiries with other organisations or on what basis.

[25] The Respondent also refuted the Applicant’s submission, that a reason for the delay was her remote location, with problematic communication services. The Respondent submitted there has been no evidence provided about the unreliability or difficulty of communication services in Kowanyama. The Respondent submitted that the more than six week delay in lodging the application, cannot be explained by poor communication services of which there is no evidence of such being responsible for particular delays in relation to the communications associated with this matter.

[26] The Respondent submitted the merits of the Applicant’s application are poor, that an investigation was conducted by the Respondent, and that the process that led to the Applicant’s dismissal was “flawless”. The Respondent also submitted that a number of claims made by the Applicant had not been previously raised.

[27] The Respondent does not assert it would be unduly prejudiced by the delay.

[28] The Respondent’s submission, in summary, is that the Applicant has failed to provide sufficient evidence for her claims or evidence that supports the Applicant’s submissions that ‘exceptional circumstances’ were responsible for the delay.

Consideration

[29] 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. 4 In addressing the issue of “exceptional circumstances”, I adopt the approach taken by Whelan C in Parker v Department of Human Services5 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)6 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.” 7

[30] 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.” 8

[31] 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.

s.394(3)(a) the reason for the delay

[32] The Applicant argued that representative error and communication difficulties associated with her location, were the reasons for the delay. The Applicant argued that the Union delayed the application. However there is no evidence of clear instructions to this effect and no signed document or evidence of the Applicant checking on the progress of an application. The Applicant argued that the Union directed her to the Shire Council, and that the Applicant also made inquiries with the Respondent for the return of her position.

[33] There is no evidence of either of such matters related to an application. Nor is there any evidence of the unreliability of the communications channels in connection with her endeavours to lodge an application. Even if some latitude is allowed for the remote location, this does not provide an explanation of the length of the delay.

[34] The Respondent suggested that it was unlikely that the Union’s conduct in delaying the application was accurate but on that matter the Applicant’s conduct can be distinguished from the case law in that she was not a ‘dutiful litigant’, checking on the progress of an expected application.

s.394(3)(b) — whether the person first became aware of the dismissal after it had taken effect

[35] The Applicant was originally terminated on 10 October 2012 and became aware of such by letter dated the same date. The Union, on 15 October 2012, sought a review of the decision after response correspondence had gone astray. The decision was affirmed on 22 October 2012. Even if the date of 22 October 2012 is accepted as the date of dismissal or the date the Applicant became aware of the dismissal delay is approximately 6 weeks.

s.394(3)(c) — any action taken by the person to dispute the dismissal

[36] It is recognised that the Applicant made contact with the Union, external organisations, and the employer regarding reinstatement attempts. The final application however was lodged after a delay, the totality of which cannot be accounted for.

s.394(3)(d) — prejudice to the employer (including prejudice caused by the delay)

[37] The Respondent did not argue prejudice related to the delay.

s.394(3)(e) — the merits of the application

[38] Both parties provided brief summaries on the merits of the matter. The Applicant’s submissions on the merits have been considered and taken into account as a criteria in this determination. She clearly considered the dismissal was harsh, unjust and unreasonable.

[39] Briefly stated the Applicant has submitted material as to the strained nature of the relationship between her and the Respondent. The Respondent submitted that the Applicant’s prospects on the material are poor. The Respondent submitted that the process and reasons for termination are defensible.

[40] An assessment of sworn evidence is required to determine the merits of the matter, such could not be made on the current limited material.

s.394(3)(f) — fairness as between the person and other persons in a similar position

[41] This matter was not applicable to the current circumstances

Decision

[42] This was not a case of representative error. No direct meeting or instruction to the Union could be pointed to. Nor was there any direct evidence regarding how communication difficulties from the area prevented an application, or a timely application. It is recognised that the ATISLS acted promptly when contacted and when aware the application was required to be filed. However the aggregate of the action taken does not provide evidence that is commensurate with the period of the more than fifty day delay.

[43] Accordingly given that a finding of ‘exceptional circumstances’ cannot be made on the material presented, an extension of time cannot be granted pursuant to s.394(3) of the Act and the application must therefore be dismissed.

[44] I Order accordingly.

COMMISSIONER

 1   [2011] FWAFB 975.

 2   Mitchell v HWE Mining Pty Ltd[2012] FWA 2721.

 3   [2011] FWAFB 2728.

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

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

 6   Lawler VP, [2010] FWA 1394.

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

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

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