Ms Liat Sippel v People Care Pty Ltd T/A Earle Haven Retirement Village
[2017] FWC 5405
•23 OCTOBER 2017
| [2017] FWC 5405 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Liat Sippel
v
People Care Pty Ltd T/A Earle Haven Retirement Village
(U2017/7187)
COMMISSIONER RIORDAN | BRISBANE, 23 OCTOBER 2017 |
Application for an unfair dismissal remedy - extension of time.
[1] Ms Sippel was employed by People Care Pty Ltd as its Nursing Manager on 7 March 2016. Ms Sippel was dismissed on 13 June 2017. An application for an unfair dismissal remedy was made on behalf of Ms Sippel by the Queensland Nurses and Midwives Union (QNMU) on 5 July 2017.
[2] Ms Sippel’s application was lodged 1 day outside of the statutory timeframe.
[3] Leave was granted to allow People Care to be represented by Ms C. Houghton from Steindls Lawyers and Notary. Ms Sippel was represented by Ms T. Chase form the QNMU.
[4] The Fair Work Act 2009 (the Act) provides that an application for an unfair dismissal remedy made pursuant to section 394 of the Act must be lodged within 21 days after the dismissal took effect.1 The Fair Work Commission (the Commission) can extend the time for the lodgement of an unfair dismissal application if it is satisfied that there are exceptional circumstances.
[5] In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.394(3) of the Act. Section 394(3) provides:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[6] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group2 where the Full Bench said:
“[13] 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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 3
Reason for the delay – s.394(3)(a)
[7] Ms Chase submitted that representative error was the reason for Ms Sippel’s application being filed one day late. Ms Chase provided documentation which showed the process of Ms Sippel’s application within the QNMU from 15 June 2017 up to 4 July 2017. The internal email train (attachments 1, 2, 3, 4, 5, 6, 7 and 8 of the QNMU’s submissions) clearly identifies Ms Sippel’s intention to lodge an objection to her termination as well as an understanding by Ms Chase that Ms Sippel’s application must be lodged by 4 July 2017. Unfortunately, whilst on her day off but undertaking some work from home on 4 July 2017, Ms Chase sent an email to her Administrative Assistant advising:
“Please find attached draft Unfair Dismissal (Form F2) for Liat Sippel, due for filing tomorrow.” (attachment 7).
[8] Whilst Ms Houghton accepted that the reason why Ms Sippel’s application was filed 1 day late was due to the error of Ms Chase, Ms Houghton submitted that People Care should not be disadvantaged as a result of this error. Ms Houghton argued that Ms Sippel may have an action against the QNMU for their incompetence instead.
[9] In Clark v Ringwood Private Hospital a Full Bench of the Australian Industrial Relations Commission established the principles to be applied in relation to matters involving representative error, where they held:
“In our view the following general propositions should be taken into account in deciding whether or not representative error constitutes an acceptable explanation for delay:
1. 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…
In Comcare v A’Hearn a Full Court of the Federal Court held that delays by a solicitor need not be visited upon a client and inexcusable delay on the part of a solicitor may amount to an acceptable explanation for the delay in making an application…
2. 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…
3. 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.
4. 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 pursuant to s.170CE(8).” 4
[10] Ms Sippel provided the necessary information to the QNMU well before the due date of her application. There was no suggestion that Ms Sippel was to blame, in any way, for her late application.
[11] I find that Ms Sippel’s application was filed one day out of time due to the error of the QNMU.
[12] I have taken this into account.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
[13] It is not in dispute that Ms Sippel became aware of her termination on 13 June 2017 which was the day that she was dismissed.
[14] I have taken this into account.
Any action taken by the person to dispute the dismissal – s.394(3)(c)
[15] Ms Sippel sought legal advice on the day after she was dismissed.
[16] I have taken this into account.
Prejudice to the employer – s.394(3)(d)
[17] Ms Houghton submitted that People Care have been prejudiced, by incurring additional legal expenses, on the basis that the QNMU did not provide all of the documents explaining the reason for the delay prior to the conciliation. I advised Ms Houghton that I did not accept this proposition unless People Care were now prepared to withdraw their jurisdictional objection. Otherwise, the time that they received the documentation is irrelevant because the extension of time issue was always going to be required to be determined by the Commission at a hearing.
[18] I find that People Care have not suffered any prejudice as a result of Ms Sippel’s late application.
[19] I have taken this into account.
The merits of the application – s.394(3)(e)
[20] In the matter of Kornicki v Telstra-Network Technology Group 5the Commission considered the principles applicable to the extension of time discretion under s.170CE(8) of the former Workplace Relations Act 1996 (Cth). In Kornicki the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 6
[21] For the purpose of determining whether to grant an extension of time the Commission “should not embark on a detailed consideration of the substantive case.” 7
[22] I have taken this into account.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
[23] I am satisfied that the issue of fairness as between Ms Sippel and other persons in a similar position is not a relevant consideration in this manner.
[24] I have taken this into account.
Conclusion
[25] I have taken into account all of the submissions of the parties.
[26] It is difficult to understand why an applicant and/or their representatives leave the filing of their applications to the last day of the statutory timeframe. Too often, simple mistakes are made or circumstances occur which result in applications being filed late. Such scenarios provide undue pressure and possible disappointment.
[27] The evidence clearly shows that the QNMU was at fault in filing Ms Sippel’s application one day late. Ms Chase has admitted that the delay was solely her fault. Ms Houghton agreed. No blame could be attributed to Ms Sippel.
[28] Applying the obiter in Clark, I find that Ms Sippel should not be penalised due to the error of her representative.
[29] I grant Ms Sippel an extension of one day to file her application.
[30] I so Order.
COMMISSIONER
1 Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
2 [2011] 203 IR 1
3 Above note at [13]-[14].
4 Clark v Ringwood Private Hospital 1159/97 S Print P5279 (1997) 74 IR 413
5 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
6 Ibid.
7 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
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