Ms Joanna Hooper v Mater Pathology Services T/A Mater Miscordiae Health Services Brisbane Limit

[2013] FWC 2013

[2013] FWC 2013

FAIR WORK COMMISSION

DECISION

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

Ms Joanna Hooper
v
Mater Pathology Services T/A Mater Miscordiae Health Services Brisbane Limit
(U2012/16889)

COMMISSIONER SPENCER BRISBANE, 9 APRIL 2013

Application for unfair dismissal remedy - jurisdictional objection - application filed out of time - s.394(3) extension of time - representative error - extension of time allowed.

[1] An application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy was filed by Ms Joanna Hooper (the Applicant) on 17 December 2012 on the grounds that the termination of her employment from Mater Pathology Services T/A Mater Miscordiae Health Services Brisbane Limit (the Respondent/the Employer) was harsh, unjust or unreasonable.

[2] This decision relates to the jurisdictional issue as to whether, an extension of time should be granted pursuant to s.394(3) of the Act, to allow the application, to be filed outside of the then 14 day statutory time frame.

Background

[3] A directions conference was held in this matter at which the parties provided written submissions related to the extension of time. The parties engaged in conciliation; however the Applicant sought also to resolve a matter previously before the Fair Work Ombudsman (the FWO) which impeded resolution. Accordingly the parties requested that the Commission determine the jurisdictional objection. Both parties confirmed, that the Commission should determine the extension of time, on the basis of the information provided at the conference without the need for a formal hearing.

[4] The Applicant’s employment with the Respondent commenced on 29 February 1996. Her employment was terminated for misconduct effective 16 November 2012, a letter of dismissal was forwarded to the Applicant’s address on 15 November 2012. The correspondence was returned to sender, accordingly the Respondent sent further correspondence regarding the dismissal, also by registered post, to the same address. The Applicant was therefore notified of dismissal effective 22 November 2012. Whilst there is some contention between the parties as to whether the Applicant was notified of the dismissal on 16 or 22 November, both parties agree that the Applicant was aware of her termination, as of the 22nd of November 2012. This date, of 22 November 2012, has therefore been taken as the date of dismissal for the purposes of this determination.

[5] The unfair dismissal application was received by the Fair Work Commission (FWC or the Commission) on 17 December 2012. The application was therefore received 11 days outside the 14 day statutory time frame (as it then was).

[6] While all of the material and evidence filed, has not been referred to in this decision, all of such has been considered.

Summary of submissions

[7] The Applicant’s predominant submission (seeking that the extension of time be granted) is that an application was filed in the wrong jurisdiction, on the basis of incorrect legal advice.

[8] The Respondent argued that the Applicant had been represented by industrial officers of the Together Union; that Union being a party to two of the Respondent’s federal Enterprise Agreements. Accordingly the Respondent submitted, the Union was aware the federal jurisdiction was the applicable jurisdiction. However the Applicant submitted, that she was not satisfied with the Union representation immediately preceding the dismissal and therefore, after the dismissal, sought legal advice.

[9] The Respondent contended that the Applicant had representation by Mr Donaghy from the Union on 6 December 2012 which demonstrated that given his knowledge of the correct jurisdiction and timeframe the application could have been made within time as at 6 December 2012. Further the Respondent emphasised that this advice provided by the Union was provided three days after the information provided by the Solicitor.

[10] The Applicant submitted that the legal advice received from Berrigan Doube Lawyers, advised that the application should be filed in the Queensland Industrial Relations Commission (QIRC) within 21 days. The submissions stated this advice was received on 30 November 2012, 8 days after notification of the dismissal on 22 November 2013. The written submission provided by Beaudesert Legal does not provide a reason for the 7 day period between the date of notification of the dismissal on 22 November 2012 and the advice being provided on the 30 November 2012. The application filed in the QIRC on 7 December 2012, was 15 days after the dismissal or 1 day out of time (in respect of the relevant FWC time frame).

[11] The Applicant was notified on 17 December 2012 by the QIRC, that the application had been filed in the wrong jurisdiction. On the same day an application was filed in the FWC, 11 days out of time.

Relevant Legislation Provisions

[12] Section 394 of the Act, as it was at the time of the dismissal, provided:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWA for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWA may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

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

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

(3) The FWA may allow a further period for the application to be made by a person under subsection (1) if the 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.”

[13] The Respondent attached copies of emails sent on 22 November 2012, by the Respondent’s Human Resources officer to the Industrial Officer of the Together Union. One email sets out that the Respondent had not received the returned registered post letter from the Applicant. A copy of the registered post receipt, and a copy of the termination letter signed by the Chief Executive Officer, Mater Health Services, (as sent to the Applicant) were attached to the email dated 22 November 2012.

[14] The Applicant stated that she sought legal advice after the termination. The Applicant provided a statutory declaration from Solicitor Rick Kerr from Berrigan Doube Lawyers. The statutory declaration, dated 17 January 2013, noted:

“1. On 30 November 2012 Ms Joanna Hooper (“Ms Hooper”) attended our office for a preliminary meeting regarding her Application for an Unfair Dismissal Remedy;

2. We informed Ms Hooper that an application with Fair Work Australia must be filed within 14 days of the date of her dismissal or if her employment is covered by the Industrial Relations Act 1999 (the “Act”), 21 days of the date of her dismissal;

3 On or about 3 December 2012, in accordance with the information and documents provided by Ms Hooper, we contacted the Industrial Relations Commission to enquire if Ms Hooper’s employment was covered under the Act. We were informed by the Commission that Ms Hooper’s employment was covered by the Act to which we subsequently informed Ms Hooper of same.

4. At no time were Berrigan Doube Lawyers engaged to act on behalf of Ms Hooper.”

[15] The Applicant signed the application filed in the QIRC. The application filed with the FWC was also signed by the Applicant.

s.394(3) - Consideration

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

[16] The Applicant primarily submitted that the reason for the delay was that she had relied on legal advice which erroneously indicated that she had 21 days to file the application in the QIRC. Further the advice was that the QIRC was the appropriate jurisdiction in relation to the applicant’s cause of action. The legal advice was received 8 days after the dismissal. After receiving the legal advice the application was filed in the QIRC 7 days after, on 17 December 2012, it was not within the statutory 21 day timeframe relevant to the QIRC. The application filed was, at the time of filing with the QIRC, 11 days overdue in the FWC.

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

[17] As set out earlier, the Applicant became aware of her dismissal on 22 November 2012 on receipt of the second registered post letter.

s.394(3)(c) - Any action taken by the person to dispute the dismissal

[18] The Applicant stated that she had made the Respondent aware that she disputed the termination by email and had also made a wages application to the FWO after the dismissal. She stated she had pursued this FWO matter with the Respondent without success. The Respondent refuted this and stated that they had promptly responded to her inquiries and had been advised by FWO that the Applicant’s complaint has been closed.

[19] The Applicant had made applications to WorkCover Queensland, WorkSafe Queensland, the Australian Human Rights Commission (subsequently withdrawn) and the FWO in addition to the application to the QIRC which was relied on in this jurisdictional matter.

s.394(3)(d) - Prejudice to the employer

[20] There were no submissions of substance on this issue. The Respondent is a large employer. In addition the Respondent submitted that the extension of time should not be granted due to the post-dismissal behaviour exhibited by the Applicant.

s.394(3)(e) - Merits of the application

[21] The Respondent stated that the Applicant was dismissed for misconduct as a result of a serious breach of policy, regarding her sharing a phlebotomist trolley. The Applicant conceded to this. With the regards to an assessment of the merits of the application, the Respondent raised this as a serious performance issue. This performance matter militates against the granting of an extension of time and must be considered with the other criteria.

s.394(3)(f) - Fairness as between the person and other person in a similar position

[22] No submissions of substance were received on this issue.

Considerations

[23] It is agreed between the parties that the Applicant was notified of the dismissal by at least 22 November 2012. There is some contention in the submissions of the parties regarding the events related to the receipt of the written notification leading up to the dismissal. Further the Respondent alleged that there were difficulties in contacting the Applicant to arrange to meet with her to discuss the termination. However the Applicant was aware of her dismissal by 22 November 2012.

[24] In this matter a period of the delay can be attributed to legal representative error, that is the advice received by the Applicant regarding filing the application in the QIRC, was received within the 21 day time frame, required in that jurisdiction. Whilst the legal representative states that they did not receive instructions to act on behalf of the Applicant, they confirm the advice provided regarding the filing in the incorrect jurisdiction. At the time of receiving the information from the solicitors (on 30 November and or 3 December) an application would have been able to have been made with the timeframe stipulated by the Act. The advice regarding the incorrect jurisdiction for filing impeded the Applicant from filing with the FWC within the 14 day timeframe.

Representative error

[25] The Full Bench decision in M N Robinson v Interstate Transport Pty Ltd 1 considered representative error in terms of an extension of time for an application filed pursuant to s.365 of the Act. While that decision relates to s.366 of the Act it is relevant to a consideration pursuant to s.394(3) of the Act.

[26] In that decision the Full Bench stated:

“[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case 2 in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidsons’s Case3 in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case4 found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act.5 We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the application was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.

[25] The approach in Clark’s Case was summarised in Davidson’s Case 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 carry out 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.”” 6

[27] The Full Bench in D’La Rosa v Motor One Group Pty Ltd 7 noted the following extract in regard to representative error causing a short delay as per the current circumstances:

“[31]... in the context of s.170CE of the WR Act:

“As is evident from Clarke, little might be required to satisfy the Commission that the Applicant was blameless in the delay. In the context of a relatively short delay, it may simply be a matter of establishing that the Applicant gave instructions to lodge [in this case] a Notice of Election and thereafter left matters in the hands of his or her representative.” 8

Exceptional circumstances

[28] 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. 9 In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services10 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)11 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.” 12

[29] 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.” 13

Conclusion

[30] On the basis of the submissions and material received, legal representative error occurred, therefore delaying the filing of the application. The Applicant, once aware of the error, filed the application in the Commission that very same day.

[31] Accordingly in the circumstances I am satisfied that exceptional circumstances exist, based on error on the part of the legal representative (whilst not engaged to act on behalf of the Applicant), providing advice, even preliminary advice, on the material as put before them.

[32] Therefore pursuant to s.394(3) of the Act, I exercise the discretion to extend the legislative timeframe and accept the application. I Order accordingly.

[33] A further notice of listing will issue in this matter to progress the application.

COMMISSIONER

 1   [2011] FWAFB 2728.

 2 (1997) 74 IR 413.

 3   Print Q0784.

 4   [2011] FWAFB 466.

 5 Ibid at [35].

 6  [2011] FWAFB 2728 at [24]-[25]

 7   PR924583, decision of Watson SDP, Kaufman SDP and Foggo C, 12 November 2002.

 8   PR924583 at para 24.

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

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

 11   Lawler VP, [2010] FWA 1394.

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

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

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