Ms Janelle Harland v Holcim (Australia) Pty Ltd

[2017] FWC 5308

[2017] FWC 5308

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Janelle Harland
v
Holcim (Australia) Pty Ltd
(C2017/3760)

COMMISSIONER SPENCER BRISBANE, 13 OCTOBER 2017

Application to deal with contraventions involving dismissal – jurisdictional objection – filed out of time – representative error argued.

INTRODUCTION

[1] An application pursuant to s.365 of the Fair Work Act 2009 (the Act) was made by Ms Janelle Harland (the Applicant) alleging that the termination of her employment from Holcim (Australia) Pty Ltd T/A Holcim (the Respondent) was in contravention of the general protections provisions.

[2] The present application was filed on 7 July 2017 and was made in substantially similar terms to an application previously before another Member of the Fair Work Commission (the Commission) (referred to in this decision as the, “initial application”). The initial application was filed on 13 April 2017 and was made within the statutory time limit.

[3] The Respondent raised a jurisdictional objection, alleging that the present application was filed outside of the 21 day time limit. The Applicant had been dismissed on 24 March 2017 and accordingly, the application was filed 84 days out of time. 1

[4] At the hearing, the Applicant was represented by Ms Sarah Lock of Qld Law Group and the Respondent was represented by Mr John Dwyer of Counsel, instructed by Ms Elizabeth Perry of EMA Legal. Both parties were granted permission to appear pursuant to s.596 of the Act.

[5] The Applicant submitted that there were, “exceptional circumstances,” to warrant the Commission granting an extension of time. In particular, the Applicant’s current legal representative alleged representative error on the part of the Applicant’s previous legal representatives. The Applicant’s current legal representative, Ms Lock had been previously employed by the Applicant’s former legal representatives and had carriage of the file during that prior period.

[6] The matter was listed for a conciliation conference before another Member of the Commission however it was unable to be resolved. The matter was subsequently referred to the Commission as currently constituted. Directions had been previously set for the filing of material in the jurisdictional matter and the matter was listed for hearing in Brisbane, to deal with the extension of time.

[7] Whilst not all of the submissions and evidence are referred to in this decision, all of such have been considered.

BACKGROUND

[8] On 24 March 2017, the Applicant received the following letter from the Respondent:

“Dear Janelle

Termination of Employment

As explained to you, your performance in the role of Contracts Administrator has been monitored since you were initially issued a Performance Improvement Plan in October 2016. Throughout the performance improvement process was undertaken [sic] and your performance in some areas of your role has improved, there remained to be a continued gap between your performance and the expectations of the role.

As discussed, your gaps in performance were initially formally outlined to you in the Performance Improvement Plan that was issued to you in October 2016. In February 2017 it was determined that you had failed to deliver on the expectations on this plan. As a result, you were issued with a Final Warning and a further period to demonstrate your ability to meet the inherent requirements of the role.

Despite outlining the expectations of the role, and providing you the tools to address them, there remains to be continued gap in your performance. These gaps have been explained and documented to you previously during the performance period and we have demonstrated [sic] your failure to deliver on project related tasks. As discussed, these gaps in performance form the inherent requirements of your role.

As a result of your continued failure to meet the expectations of the role of Contracts Administrator, the company has decided to terminate your employment effective immediately. As per the agreement and your contract of employment, you will be paid in lieu of notice of one month.

Your final pay will be processed by Payroll, which will be paid directly into your bank account. Payroll will also forward on relevant information regarding superannuation. If you have any queries regarding your final pay, please contact the Pay Office on [redacted].

In the event you have personal issues that may be affecting your ability to satisfactorily carry out you job, once again I extend an offer to you for confidential employee assistance. The Holcim Employee Assistance Program is available to all employees and you can access this service on [redacted].

If you have any further enquiries regarding this matter, please contact me on [redacted].

Please sign and date this letter to acknowledge receipt and that you understand the contents.

Yours sincerely,

Paul Adams

Regional Sales Manager” 2

[9] As set out, the Applicant filed the initial application with the Commission on 13 April 2017. In summary terms, the substantive application contained allegations that the Respondent breached the general protections provisions in the Act and that, “there were a number of unresolved issues faced by the Applicant but the performance management reason was given to camouflage the real reason for the decision.” 3 The initial application was filed within the 21 day time limit.

[10] The Applicant submitted that the, “unresolved matters,” included allegations made against Mr Paul Adams, Regional Sales Manager of the Respondent, and Mr Greg Hockings, Project Manager of the Respondent. For example, the Applicant alleged that Messrs Adams and Hockings had engaged in conduct that, “singled out,” the Applicant and that Mr Adams, “had a personal vendetta against her and knew, from other staff, that he wanted to get rid of her.” 4

[11] The Respondent alleged that the allegations raised by the Applicant, “discloses no prima faci contravention by the Respondent,” and that, “the Application neither identifies nor actually alleges that the [Respondent] subjected the Applicant to adverse action by reason of the existence, exercise or proposed exercise of a workplace right.” 5 Further, the Respondent submitted that, “[t]he Applicant was dismissed as a result of poor performance following a formal Performance Improvement Process commenced on 16 October 2016 and as documented and attached to the Applicant’s Application. The Basis of the allegations of poor performance is comprehensively identified in the documents. That was the sole reason for the Respondent’s decision to dismiss her.”6

[12] With respect to the reasons for the delay, the Applicant’s representative stated that on 23 May 2017, the Applicant sent the following email to her then legal representatives:

“Hello Dannielle

Sorry I missed your call, but at this time I will not be proceeding with the matter.

Thank you” 7

[13] On 29 May 2017, the Applicant’s previous legal representatives on behalf of the Applicant filed a Form F50 – Notice of Discontinuance in relation to the initial application.

[14] On 7 July 2017, the Applicant’s current legal representative filed a second application with the Commission in substantially similar terms to the initial application. The application prepared by the current legal representative set out:

“The [initial application] was discontinued in error by the Applicant’s previous legal representatives… by a misunderstanding on an email sent by the Applicant saying she would not be proceeding with the matter. What the Applicant meant was she would not be proceeding with the matter with [the previous legal representatives] as she had now retained the services of Sarah Lock who is now employed with Qld Law Group to take over. The notice of discontinuance was filed by [the previous legal representatives] on 29 May 2017.

When Qld Law Group tried to file documents for the Applicant’s original matter on 2 June 2017, the FWC informed them that the matter had been discontinued. After discussions with the General Protections team, Ms Lock filed a Form 1 to try to have the matter reopened based on an error/mistake by the previous legal team…

The matter was set down for a mention with Commissioner McKinnon on 5 July 2017. The jurisdictional argument was about whether or not the notice of discontinuance that was filed in error could be set aside and the matter enlivened.

After Ms Lock spoke with the Applicant at the end of the mention, a decision was made by the Applicant that it would be less costly for both parties if the Applicant could rely on section 725 of the Fair Work act to put in a fresh application, obviously subject to the extension of time being granted by the FWC.

We are now filing this fresh application and applying for an extension of time for the matter to be heard based on exceptional circumstances.” 8

[15] The Applicant did not provide a statement of evidence in these jurisdictional proceedings and was not called to give evidence at the hearing.

[16] The application was allocated to Commission Simpson. The Commissioner set directions in the matter and conducted a conciliation conference, however the matter was unable to be resolved. The matter was reallocated to the Commission as currently constituted.

RELEVANT PROVISIONS

[17] Pursuant to s.365 of the Act:

“365 Application for the FWC to deal with a dismissal dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

[18] Further, s.366 of the Act relevantly provides:

366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

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

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

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

[19] The Respondent raised a jurisdictional objection to the present application, alleging that it was filed outside of the 21 day time limit and that no, “exceptional circumstances,” exist to warrant the Commission extending the time limit.

[20] The Applicant submitted representative error had occurred on the part of her previous legal representatives. It was submitted that the background to the application, “creates an Exceptional Circumstance that the Commission needs to consider before making its determination as to whether the Application can be heard. This is not a case of the Applicant merely changing her mind and wanting to reopen her matter.” 9

[21] The Applicant submitted that there would not be any prejudice to the Respondent by extending the time limit, as they held records of the correspondence in the initial application. 10 In considering the merits of an application, the Applicant submitted that, “the Commission may consider whether the employee has a sufficient case,” and, “[t]he Commission cannot make any findings on contested matters without hearing evidence.”11

[22] The Applicant submitted that, “the substantive merits of the case are strong however given the nature of the issues it is important that the evidence is tested thoroughly due to mixed decisions in case law.” 12

[23] Ms Lock, the Applicant’s present legal representative, gave evidence in these proceedings. Her evidence was that, “[the previous legal representatives] misinterpreted the Applicant’s instructions and on 29 May 2017, submitted a Form F50, effectively discontinuing the matter.” 13 Ms Lock stated that, after the hearing before Commissioner McKinnon, she agreed the Commission had no jurisdiction to set aside a Notice of Discontinuance and accordingly she stated, “I had a discussion with the Applicant as to her options moving forward. At which time a decision was made to not pursue the Form 1 Application and lodge a fresh Application for General Protections.”14

[24] It was submitted that the representative error alone, “was particularly significant enough to warrant the case exceptional based on the factor of representative error, mistake and misunderstanding.” 15

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

[25] The Respondent submitted that the Applicant bears the onus to satisfy the Commission that both exceptional circumstances exist and that the Commission should exercise its discretion. 16 In determining whether, “exceptional circumstances,” exist, the Respondent referred to the Explanatory Memorandum of the Fair Work Bill 2009, which relevantly states at [1480] that, “Subclause 366(2) provides an exhaustive list of the factors [the Commission] must take into account when determining if there are exceptional circumstances.”

[26] The Respondent submitted that the Full Bench of the Commission in Robinson v Interstate Transport Pty Ltd summarised the law with respect to representative error: 17

“...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…” 18

[27] During cross-examination, it was put to Ms Lock that she could not know or provide evidence as to what caused the previous legal representatives to file the Notice of Discontinuance and the following exchanged occurred:

Mr Dwyer: From the way I read your affidavit, this email is the central point of - the point of confusion? … This is where you say [the previous legal representatives] fell into error, so to speak?

Ms Lock: That’s correct.

Mr Dwyer: The only basis for your conclusion that there was some misunderstanding - I am just being clear in terms of what your evidence is - the only basis for your conclusion that there was some misunderstanding arising from this email is essentially your theory? You don’t know how this was received or by whom or how they reacted to it, do you?

Ms Lock: This is an email sent from my client, Ms Harland, to [a person from the previous legal representatives].

Mr Dwyer: That’s what the document - the document has on it that it’s sent - it says “From Janelle Harland”?

Ms Lock: Yes.

Mr Dwyer: And it’s to [a person from the previous legal representatives]?

Ms Lock: Correct.

Mr Dwyer: Beyond that, you don’t know who received it at [the previous legal representatives], do you?

Ms Lock: No.

Mr Dwyer: And you don’t know how they reacted to it?

Ms Lock: No.

Mr Dwyer: And you don’t know what decisions they made or did not make based on that email?

Ms Lock: They filed a Form 50.

Mr Dwyer: No, no, you don’t know the basis of that decision, do you?

Ms Lock: My client said she will not be proceeding with her matter. [The previous legal representatives] filed a Form 50 notice of discontinuance based on that email.

Mr Dwyer: No, those are two separate events. Your client - and we don’t know for certain because the author of this is not giving evidence - but there’s an email here that purports to be from your client purporting to give certain information to [the previous legal representatives]. That’s what that document is?

Ms Lock: Correct.

Mr Dwyer: That’s what it is. That's one thing?

Ms Lock: Right.

Mr Dwyer: A notice of discontinuance was filed six days after that email is dated?

Ms Lock: Correct.

Mr Dwyer: As to what informed the person who filed the notice of discontinuance, we have no information whatsoever, do we?

Ms Lock: No.

Mr Dwyer: This email and the notice of discontinuance are two separate events which are unconnected by any evidence in these proceedings other than your assumption?

Ms Lock: The email would be the basis for which a notice of discontinuance - - -

Mr Dwyer: That is your assumption?

Ms Lock: And it occurred.

Mr Dwyer: We know that it occurred, but it is your assumption as to why it occurred. You agree with that?

Ms Lock: I’m basing it on the email received.

Mr Dwyer: So that’s not knowledge, that's an assumption?

Ms Lock: It’s an assumption but it’s based on an email. 19

[28] Counsel of the Respondent then proceeded to question Ms Lock with respect to whether she had made enquiries with the Applicant’s former legal representatives, regarding the reasons for discontinuance:

Mr Dwyer: In terms of your case about representative error - just let me be sure if I’ve got this clear - your case is that [the previous legal representatives] mistakenly interpreted an email that you have attached at exhibit 1, but you have made no enquiries of [the previous legal representatives] as to what motivated their decision to file the notice of discontinuance to confirm your assumption?

Ms Lock; No, I spoke to my client.

Mr Dwyer: You haven’t spoken to [a person from the previous legal representatives] or anybody else at [the previous legal representatives]?

Ms Lock: I don’t want to speak to anybody at [the previous legal representatives]

…

Mr Dwyer: But if you wanted to, just to ensure that there’s no - you are not restrained by law or anything from contacting [the previous legal representatives], are you?

Ms Lock: No. 20

[29] The Respondent submitted that, “[t]here is no sworn evidence before the Commission to properly scrutinise the reason for the delay. There is no explanation about the Applicant’s actions and conduct in the 24 days following the expiry of the statutory period.” 21 It was submitted that, “[t]he forensic consequence of the deficiencies in the evidence rest with the Applicant – the Commission has an incomplete factual basis upon which to assess whether the reason for the delay was acceptable…”22

[30] It was further submitted that after becoming aware that a notice of discontinuance had been filed, the Applicant did not have the matter reopened for another 12 days. 23 The Respondent submitted that the Applicant had not provided reasons for the delay. Accordingly, it was submitted that, “on the information available it is not open to the Commission to conclude that the whole period of the delay was attributable to representative error. The Commission cannot therefore be satisfied that an acceptable reason exists for the delay.”24

[31] The Respondent submitted that, “the Applicant made a decision not to press her challenge to her dismissal given her communication to [the previous legal representatives] and failure to prosecute the Application by providing sufficient information. She subsequently changed her mind, resulting ultimately in the late filing of the Second Application.” 25 The Respondent conceded that there was no substantial prejudice arising from the delay in filing the present application.26

[32] In the alternative, the Respondent submitted that if the Commission did consider that there was a link in the email sent by the Applicant and the filing of the notice of discontinuance, the Applicant had, “contributed in a significant way to [the previous legal representatives]’ misunderstanding.” 27 It relation to the words used by the Applicant in the email, Counsel for the Respondent submitted that:

“They are not entirely ambiguous. I think the terminology, to be fair, “but at this time”, if I was the solicitor receiving that email, I might - in fact I certainly would - have made further enquiries, and we don’t know whether that happened or it didn’t happen because we haven’t heard from any of the relevant parties. If I was the solicitor getting that, I would take a different approach, but that's not to say that a more junior - and I don’t want to make any comments about the law firm in question but they do have a lot of junior people working there - a more junior practitioner or perhaps a less diligent practitioner, on seeing that email, might reasonably conclude that they were getting instructions to discontinue - might do.

…you can't avoid the conclusion, in my submission, that the applicant has brought about that error through her conduct by expressing her intentions, whatever they might have been, but in expressing an intention in this email, it was liable to mislead and confuse the practitioners who received it.” 28

[33] It was submitted that, in relation to the merits of the application, “the Applicant appears to rely on unparticularised and vague assertions of safety concerns, bullying and ‘adverse action’ alleged to have been taken in response.” 29 The Respondent submitted that the merits of the application weigh against the grant of an extension of time.

[34] The Respondent referred to the decision of Nulty v Blue Star Group Pty Ltd, 30 where the Full Bench of the Commission held that:

“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.” 31

[35] It was submitted that the facts of this case are not, “unusual, special or even particularly uncommon.” 32 The Respondent submitted that the Applicant was not able to demonstrate that exceptional circumstances exist to warrant granting an extension of time.

CONSIDERATION

[36] The Applicant in this case, on advice from her legal representative, filed a new application in substantially similar terms, given the difficulties with the revocation of the Notice of Discontinuance filed in the initial application.

[37] The Applicant’s email of 23 May 2017 stated simply, “at this time I will not be proceeding with the matter.” It was submitted that her previous legal representatives had allegedly discontinued the matter without proper instructions. It was also submitted that the intention of the Applicant’s email was to inform her previous legal representatives that the Applicant had finished her engagement of them, as her legal representatives.

[38] The Respondent submitted that it should have been clear to the Applicant that informing her legal representatives that she, “will not be proceeding with the matter,” would cause the matter to be discontinued. On the evidence before the Commission, it was argued that the Applicant’s email caused those previous legal representatives to file the Notice of Discontinuance. During cross-examination, Ms Lock conceded that an, “assumption,” could be drawn that the Notice of Discontinuance was filed based on the Applicant sending the email to her previous legal representatives. No evidence was called from the Applicant or from the initial legal representatives in this regard, to clarify the events that occurred relating to the email.

[39] Pursuant to the Directions, a witness statement was not provided by the Applicant. Accordingly, a Jones v Dunkel inference, 33 may be drawn, regarding the absence of that evidence. The rule arising from the Jones v Dunkel case applies, “where a party is required to explain or contradict something.”34 In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union,35Barker J adopted the summary of the rule (as per Cross on Evidence) and held that:

“47. It is often suggested that the finer points of the “rule” in Jones v Dunkel are not well understood. Cross on Evidence (8th Australian Ed, 2010) by JD Heydon says there are at least nine. I adopt the learned author’s convenient summary of four of those points (without reciting underlying authority) that are relevant to this proceeding:

• The unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case: Cross on Evidence at [1215], p 40.



• While the rule in Jones v Dunkel permits an inference that the untendered evidence would not have helped the party who failed to tender it, and entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken, and the more readily to draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or call evidence, the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference. Nor does the rule prevent any inference favourable to the party who has failed to call the witness being drawn: other evidence may justify the drawing of the inference: Cross on Evidence at [1215], p 42.



• The rule only applies where a party is required to explain or contradict something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings or by the course of evidence in the case. No inference can be drawn unless evidence is given of facts requiring an answer. If there is no issue between the parties on a matter, there is nothing to answer. If there is an issue between them but the party bearing the burden of proof has tendered no evidence of it, the opponent is not required to answer: Cross on Evidence at [1215], p 42.



• The most difficult aspect of the rule turns on the failure to call non-party witnesses. It is easy to apply the principle where it is the party who fails to give evidence. But the rule cannot be applied to the non-calling of the witness unless it would be natural for the party to call the witness or the party might reasonably be expected to call a witness, or a missing witness would be expected to be called by one party rather than another: Cross on Evidence at [1215], p 43 – 44.” 36

[40] The term, “exceptional circumstances,” has been dealt with in relation to s.394 (applications for relief from unfair dismissal) extension of time applications. These authorities are relevant to the current test in extension of times general protections matters. The approach taken in Parker v Department of Human Services, 37 is adopted (as followed in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)38 and is 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.” 39

[41] 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.” 40

[42] The Applicant’s conduct and activity during the 21 day period and beyond is assessed. It was established in the Full Bench Decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic: 41

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.” 42

[43] An error that is established, on the part of the Applicant’s legal representatives, may be grounds to warrant an extension being granted. In Clark v Ringwood Private Hospital, 43 the Full Bench of the Australian Industrial Relations Commission held that:

“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 his/her representative and took no steps to inquire as to the status of his/her claim. A different situation exists where an applicant gives clear instructions to his/her 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.” 44

[44] Accordingly, the conduct of the Applicant in forwarding the email as worded and her activity across the whole period is assessed.

[45] The Applicant has the onus of proof to establish that, “exceptional circumstances,” exist, by proving, “credible reasons,” for the entire 21 day period, not just the period that the application was delayed. 45

[46] In determining whether there are, “exceptional circumstances,” the Commission must take into account the matters in s.366(2) of the Act:

(a) the reason for the delay; and

[47] The initial application was made within time, however the matter was discontinued and the subsequent application was made out of time. The Applicant submitted that the main operative reason for the delay was the fact that the initial application was discontinued in error by the Applicant’s previous legal representatives.

[48] There was a further period of 35 days between the time that the matter was discontinued. The Applicant, however only became aware that the matter had been discontinued when her legal representatives attempted to file material on 2 June 2017. The Commission contacted the Applicant’s representative on 5 June 2017 and informed them that the matter had been discontinued. On 9 June 2017, the Applicant’s representative corresponded with the Commission requesting that the initial application be reopened. The Applicant’s representative was informed that she would be required to file a Form F1 – Application seeking to have the matter reopened. On 13 June 2017, the Applicant filed the Form F1 – Application. The matter was brought on for Mention on 5 July 2017 before another Member of the Commission, where the Applicant’s representative became aware of the difficulties with the revocation of the Notice of Discontinuance.

[49] There were several further delays during this period. The Applicant has not provided reasons for the delay between becoming aware that the matter had been discontinued and requesting to have the initial application reopened, and the further period of being informed that a Form F1 was required to be filed, and the filing of that form. The Commission is required to consider the entire period of the delay, including these outstanding days, in considering whether, “exceptional circumstances,” exist.

[50] In relation to the Applicant’s contention that representative error occurred, the Applicant bears the onus to satisfy that the Notice of Discontinuance was filed in error. This necessarily requires the Applicant to demonstrate the reasons that caused the Notice of Discontinuance to be filed, if any.

[51] In this regard, the Applicant’s representative submitted that the email sent by the Applicant did not constitute instructions to discontinue and that the application was discontinued on the basis of that email. There was no sworn evidence before the Commission from the Applicant, as to her intentions in sending the email. Therefore, the submission that the Applicant did not intend to discontinue the application on the basis of the email cannot be substantiated.

[52] Further, no evidence was adduced from the previous legal representatives to demonstrate any other circumstances for discontinuing the application, other than in response to the Applicant’s email. The Applicant’s representative conceded that she assumed that the application was discontinued based on the Applicant’s email.

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

[53] It was not in dispute that the Applicant took steps to dispute the dismissal, demonstrated by the fact that the initial application was filed within time.

[54] As stated, however there are a number of days unaccounted for in the period when the Applicant’s representative sought the reopening of the initial application.

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

[55] The Respondent was aware that the Applicant was pursuing the matter as the first application was filed within time. Accordingly, it is recognised that there is minimal prejudice to the Respondent.

(d) the merits of the application; and

[56] In relation to the merits of the application, they would require the assessment of sworn evidence to determine. Therefore, this criterion has been considered to be neutral.

(e) fairness as between the person and other persons in a like position.

[57] In terms of fairness, the Respondent was on notice of the application and that the Applicant was disputing such.

CONCLUSION

[58] There is insufficient evidence to support the Applicant’s submission that the matter was discontinued in error by her previous legal representatives. Evidence was not adduced from the previous legal representatives as to the reasons for filing the Notice of Discontinuance and accordingly, it is not possible to determine that it was filed in error. There was no evidence from the Applicant that the email was not intended to discontinue her application, nor that it did not constitute valid instructions to discontinue the matter. Therefore, representative error cannot be concluded, in regard to the filing of the Notice of Discontinuance. 46

[59] In assessing the delay for the entire period, the application was further delayed by 35 days after the Notice of Discontinuance was filed. The Applicant’s representative attempted to file documents and was advised that the application was discontinued. Accordingly, if the whole period of the delay was considered, there has not been timely activity across the period to remedy the matter after the Notice of Discontinuance was filed.

[60] A case of representative error has not been made out and therefore, the circumstances of the delay were not, “exceptional.” The discretion to extend the time limit pursuant to s.366(2) of the Act is, therefore not exercised to grant a further period to accept the application.

[61] The application pursuant to s.365 of the Act is therefore, dismissed.

[62] I Order accordingly.

COMMISSIONER

Appearances:

Ms Sarah Lock of Qld Law Group for the Applicant.

Mr John Dwyer of Counsel, instructed by Ms Elizabeth Perry of EMA Legal for the Respondent.

Hearing details:

2017.

Brisbane:

30 August.

 1   Respondent’s email to the Fair Work Commission dated 30 August 2017.

 2   Applicant’s Form F8 – General protections application involving dismissal dated 7 July 2017 at Annexure A.

 3   Ibid at Annexure B.

 4   Ibid.

 5   Respondent’s Form F8A – Response to general protections application dated 22 August 2017 at 5.1.Ibid.

 6   Ibid.

 7   Applicant’s Form F8 – General protections application involving dismissal dated 7 July 2017 at Annexure D (Attachment A).

 8   Ibid at 1.4.

 9 Applicant’s Outline of Submissions – Extension of Time Application dated 21 August 2017 at [31].

 10 Ibid at [44].

 11   Ibid at [46]; Kyvelos v Champion Socks Pty Ltd (unreported, AIRC, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 at [14].

 12 Applicant’s Outline of Submissions – Extension of Time Application dated 21 August 2017 at [47].

 13 Statement of Sarah Lock dated 21 August 2017 at [15].

 14 Ibid at [26].

 15 Applicant’s Outline of Submissions – Extension of Time Application dated 21 August 2017 at [54].

 16 Respondent’s Outline of Submissions dated 21 August 2017 at [10].

 17   [2011] FWAFB 2728.

 18 Ibid at [25].

 19   Transcript dated 30 August 2017 at PN127 – PN146.

 20   Ibid at PN159 – PN163.

 21 Respondent’s Outline of Submissions dated 21 August 2017 at [21].

 22 Ibid at [23].

 23 Ibid at [25].

 24 Ibid at [28].

 25 Ibid at [33].

 26 Ibid at [36].

 27   Transcript dated 30 August 2017 at PN238.

 28   Ibid at PN240 – PN241.

 29 Respondent’s Outline of Submissions dated 21 August 2017 at [45].

 30   [2011] FWAFB 975.

 31 Ibid at [9].

 32 Respondent’s Outline of Submissions dated 21 August 2017 at [51].

 33 (1959) 101 CLR 298.

 34   Qantas Airways Limited v Transport Workers’ Union of Australia (2011) FCA 470.

 35 (2010) 187 FCR 293.

 36 Ibid at [47].

 37   [2009] FWA 1638.

 38   [2010] FWA 1394.

 39   [2009] FWA 1638 at [30] – [31].

 40   [2010] FWAFB 7251 at [5].

 41   [2016] FWCFB 349.

 42   Ibid at [29] – [31].

 43 (1997) 74 IR 413.

 44   Ibid at 419 – 420.

 45   Francis v Holmesglen Institute [2017] FWC 3910; Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403.

 46   Clark v Ringwood Private Hospital (1997) 74 IR 413.

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