Ms Betty Blythe v Moreton Bay Regional Practice Network Limited T/A Moreton Bay General Practice Network inc

[2011] FWA 733

[2011] FWA 733

FAIR WORK AUSTRALIA

DECISION

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

Ms Betty Blythe
v
Moreton Bay Regional Practice Network Limited T/A Moreton Bay General Practice Network inc.
(U2010/13894)

COMMISSIONER ROE MELBOURNE, 3 FEBRUARY 2011

Unfair dismissal - extension of time for lodging application.

[1] This is an application for an extension of time within which to file an application for an unfair dismissal remedy. The Application is made by Ms Betty Blythe (the Applicant) in respect of dismissal by the Moreton Bay Regional Practice Network Limited T/A Moreton Bay General Practice Network Inc. (the Respondent). At the conclusion of the hearing of this matter I advised the parties that I had decided to grant the extension of time and was therefore allowing the Application for unfair dismissal remedy to proceed to be heard by a member of the Tribunal for reasons which I now publish.

[2] Leave was granted for the Applicant to be represented by Mr D Pratt and for the Respondent to be represented by Ms T Love.

[3] Section 394(2) of the Fair Work Act 2009 (FW Act) provides:

“(2) [Standard time limit] The application must be made:

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

(b) within such further period as FWA allows under subsection (3).”

[4] Subsection 394(3) provides:

“(3) [Extended time limit] 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.”

[5] The Applicant says she was employed on 4 February 1999 and dismissed on 21 October 2010 which was the same date as she was advised by the Respondent that she was being dismissed. The Respondent advised the Applicant that she was being dismissed because:

“Changes in operational requirements, including the outsourcing of financial administration, the current fiscal situation, and the economic climate of health reform funders the position of Quality Manager is no longer needed.”

[6] The Applicant contends that the dismissal was not a case of genuine redundancy in that redeployment was both possible and reasonable. The Applicant noted that the Respondent did not pay her redundancy pay entitlements. The Respondent contends that the dismissal was a case of genuine redundancy and that as the Respondent is a small business employer it is not obligated to make any further redundancy payments to the Applicant.

[7] The Applicant signed and dated her unfair dismissal remedy application on 4 November 2010. The Application was received by Fair Work Australia at 10.30am on 5 November 2010. 4 November is 14 days after the dismissal. The Applicant argues that the Application was therefore late but less than one day late. The Respondent accepts that the Application was made one day late. The fact that an application is only one day late does not in itself amount to exceptional circumstances. However, the shortness of the delay may be a relevant consideration.

[8] The Applicant’s solicitor Natalia Nabokova gave sworn evidence that the Applicant sought legal advice in respect to her rights concerning the dismissal on 27 October 2010 following the dismissal on 21 October 2010. She further met with her lawyers on 29 October 2010 and received advice from Ms Nabokova. On 1 November 2010 Ms Nabokova briefed counsel to provide advice on the prospects of an unfair dismissal claim for the Applicant. On 3 November the Applicant attended a conference with Mr Dan Pratt of counsel. On 3 November 2010 the Applicant instructed the lawyers to lodge her claim for unfair dismissal remedy with Fair Work Australia. Ms Nabokova drew up and engrossed the relevant application form. On 4 November Ms Nabokova drew a cheque for the Application fee and instructed town agents to file the Application that day. A copy of the directions was provided to the Tribunal. The town agent collected the Application at approximately 10.30am on 4 November 2010 for lodgement with Fair Work Australia. Ms Nabokova contacted the town agent the following morning and was informed that the Application was being lodged at the time she made the inquiry rather than the day before as instructed. Ms Nabokova gave evidence that at no stage had the town agent advised that the application could not be filed on 4 November 2010.

[9] The Respondent submitted that the Applicant’s solicitor should have followed up to check that the Application had in fact been filed by the town agent in the afternoon of 4 November 2010. The Respondent also submitted that the written instructions from the Applicant’s solicitor to the town agent do not specify that the delivery must be on 4 November 2010. I do not regard this as significant in that the Applicant’s solicitor gave unchallenged evidence that the instruction to the agents was for same day delivery.

[10] The parties argued and I accept that the principles set out in Brodie-Hanns v MTV Publishing Ltd 1 are the relevant principles. These principles are reflected in Section 394(3) of the Act.

[11] The threshold requirement is that there are “exceptional circumstances” and I adopt the approach to this matter which is set out I adopt the approach to exceptional circumstances set out by Vice President Lawler in Mr Christopher Johnson v Joy Manufacturing Co Pty Ltd t/a Joy Mining Machinery. 2

[12] The Applicant says that the reasons why an extension of time of one day should be granted is that the Applicant acted swiftly to determine her rights. At all times the Applicant was attempting to advance her Application. The Applicant made reasonable efforts and expected that her legal advisers would ensure that the Application was made in accordance with the Act. The Applicant gave instructions to her legal advisers in reasonable time and if it were not for the error of her legal advisers in failing to ensure that the town agent they used filed the Application on time, the Application would have been on time.

[13] I turn to consider the particular factors specified in s. 394(3) of the FW Act.

s. 394(3)(a)

[14] The reason for delay proffered by the Applicant is an acceptable explanation which makes it equitable to extend the time. The reason is one which is not normal or usual. The Applicant made all reasonable efforts to ensure her Application was made in accordance with the Act. The error in this case was a representative error. That said I am satisfied that the legal advisers did make reasonable efforts to ensure that the Application was filed on 4 November 2010 but that their agents failed to deliver as instructed and failed to advise that they would be unable to deliver as instructed. This is not an error of the sort where an Applicant or their advisor sends an Application by post and fails to allow for reasonable postage time. 3 In this case unlike the Varcoe matter the Applicant did offer an explanation of the delay, the Applicant did not simply leave the application to the whims of the postal system and delivery could reasonably have been expected within the time allocated.

[15] I take into account that the Application is only a short period of time late. It has clearly been established that an application being only one day late does not in itself constitute an exceptional circumstance. 4 However, in my view it is a relevant consideration when combined with the issue of representative error.

[16] Representative error has been found to be a basis for an extension of time in unfair dismissal cases on many previous occasions. 5

[17] With regard to representative error, a Full Bench of the AIRC in Davidson v Aborignial & Islander Child Care Agency 6 summarised a number of propositions flowing from an earlier Full Bench decision in Clarke v Ringwood Private Hospital7 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 carryout 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.”

[18] This approach was endorsed by a Full Bench in Cruz v Australian Postal Corporation. 8

[19] A recent Full Bench 9 has again endorsed the validity of the approach taken as summarised above. In this decision the majority found that representative error had not been established and that if representative error was considered that the conduct of the Applicant in that case was such as to ensure that representative error could not form the basis for a decision to grant an extension of time. Vice President Lawler dissented from the decision of the majority and found that there was representative error and that in the circumstances of the case this formed a proper basis for the granting of an extension of time.

[20] In this case the Applicant was blameless in respect to the delay occasioned by the failure of the agent to submit the Application on the day intended. The Applicant was not sitting on her hands and had been reasonably active during the fourteen days following the dismissal to ascertain and then act on her rights in respect to unfair dismissal.

[21] For the reasons outlined by Vice President Lawler in Joy Manufacturing the changes in the present Act when compared to the earlier legislation are not so significant as to exclude the continuing relevance of previous decisions in respect to extension of time. I accept that representative error can be a basis for finding that exceptional circumstances exist to justify an extension of time. I am satisfied that in the circumstances of this case representative error combined with the blameless conduct of the Applicant and the shortness of the delay do constitute reasons for delay which can be described as exceptional circumstances which justify the granting of an extension of time.

s. 394(3)(b)

[22] The Applicant was clearly advised of the dismissal on the day of the dismissal which was 21 October 2010. She was not aware at an earlier date.

s. 394(3)(c)

[23] I am satisfied that the Applicant actively took steps to challenge the dismissal within a reasonable time frame. The Applicant did not idly let time slip by. The Respondent submitted that the failure of the Applicant to dispute the dismissal with the Respondent directly or with the Fair Work Ombudsman should be taken into account. The Respondent also argued that there is no evidence of active pursuit of her claim in the first few days after the dismissal. In my view it is sufficient that the Applicant took all reasonable steps to get advice and submit her Application within a time frame that was consistent with achieving a proper Application within the 14 day time period allowed.

s. 394(3)(d)

[24] I am satisfied that the fact that the delay in making the Application was a single day is a relevant consideration in respect to the prejudice to the Respondent including the prejudice caused by delay. Witness recollections will not have faded. The notice to the Respondent that the Applicant was contesting the dismissal by an Application to Fair Work Australia was only one day later than would have otherwise occurred. I am not satisfied that there is any prejudice to the Respondent caused by the delay in this case. I am not satisfied that there is any other prejudice to the Respondent other than the usual prejudice that accompanies any grant of an extension of time.

s. 394(3)(e)

[25] Whether or not this was a genuine redundancy and whether or not there were other redeployment opportunities for the Applicant are matters which will be strongly contested should the matter proceed to be heard. If the contentions of the Applicant were able to be proven then there would be evidence that the Applicant could reasonably have been redeployed and that there were other motives for the respondent not considering the Applicant for redeployment. The Respondent has not been required to provide its contentions concerning the merits in detail at this stage and hence it would be inappropriate for me to make any definitive findings about the merits of the case. However, I am satisfied that this is not one of those cases where I should be concerned that the substantive application lacks merit. I cannot conclude that the application is without merit.

s. 394(3)(f)

[26] I do not consider that the factor in s. 394(3)(f) is relevant in the present case. There are no other employees affected and the situation is sufficiently unusual as to not give rise to concerns about equitable treatment between cases.

Exceptional Circumstances

[27] I find that exceptional circumstances do exist in this case which are sufficient to justify the granting of an extension of time for the making of the Application of one day.

[28] The Application for an extension of time is granted. The Section 394 Application for unfair dismissal remedy will now proceed to be determined by a member of the Tribunal.

COMMISSIONER

Appearances:

Mr D Pratt and Ms N Nabokova for the Applicant.

Ms T Love for the Respondent.

Hearing details:

2011
Brisbane
2 February 2011

 1 [1995] 67 IR 298.

 2   [2010] FWA 1394, 25 February 2010 at paragraphs 22-28.

 3   Varcoe v Leo Fardell Pty Ltd[2010] FWA 6025 12 August 2010.

 4   Wood v Woolworths Limited T/A Woolworths Supermarkets[2010] FWA 9463 10 December 2010.

 5   See for example Commissioner Gooley in Dr Gary Berryman v Dr Kosky trading as Nagambie Medical Centre [2010] FWA 9691.

 6   Print Q0784, 12 May 1998.

 7 74 IR 413, 22 September 1997.

 8   [2008] AIRCFB 452 VP Lawler, SDP Richards, Cmr Redmond, 30 May 2008.

 9   [2011] FWAFB 466 at paragraph 35.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR506468>