Ms Renae Weyland v Integrated Living Australia Ltd T/A Integrated Living
[2021] FWC 6183
•22 OCTOBER 2021
| [2021] FWC 6183 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Renae Weyland
v
Integrated Living Australia Ltd T/A Integrated Living
(U2021/8304)
DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 22 OCTOBER 2021 |
Unfair dismissal application filed out of time - circumstances exceptional - extension of the time for filing allowed
[1] This decision concerns an application by Ms Renae Weyland (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).
[2] The termination of the Applicant’s employment with Integratedliving Australia Limited (Respondent) took effect on 30 July 2021. The unfair dismissal application was lodged in the Fair Work Commission (Commission) on 14 September 2021.
[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 20 August 2021. The application was therefore filed 25 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.
[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may 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 can be considered exceptional.2
[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
Reason for the delay
[8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4
[9] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 5
[10] The Applicant contends that the delay in filing her unfair dismissal application was due to representative error on the part of her paid agents, Unfair Dismissals Australia.
[11] A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application for an extension of time. 6 In Clark v Ringwood Private Hospital,7 a Full Bench decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
● 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.
● 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.
● 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.
● 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.
[12] It is not necessary for an applicant to demonstrate that they were “blameless” for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion. 8 However, as the Full Bench explained in Long v Keolis Downer,9 “an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by”.
[13] Having regard to the evidence given by the Applicant and Ms Madeleine Beaumont, employee of Unfair Dismissals Australia, at the hearing of the extension of time application, by telephone, on 21 October 2021, I find, on the balance of probabilities, that the relevant sequence of events leading up to and following the Applicant’s dismissal was as follows. In the period between the Applicant’s dismissal on 30 July 2021 and 16 August 2021, the Applicant spent time researching a potential unfair dismissal case and considering whether to pursue such a case. On 16 August 2021, the Applicant telephoned Unfair Dismissals Australia and left a message for her call to be returned. Later that day, Ms Beaumont called the Applicant and spoke to her about potentially making an unfair dismissal claim against the Respondent. At 10:14am on 17 August 2021, the Applicant send an email to [email protected] in which she stated, “Yes I’d like to go ahead please and use the middle one which is $330 deposit”. The email to which the Applicant was responding was not put into evidence. Accordingly, there is no documentary trail as to what is meant by “the middle one”. Ms Beaumont was questioned about this by Mr Kopel, who appeared for the Respondent. Ms Beaumont gave evidence, which I accept, that the Applicant was given three options in terms of payment for services to be provided by Unfair Dismissals Australia, which provides a range of services to clients, not just in relation to unfair dismissal claims. Ms Beaumont explained that the “middle option” was for the Applicant to pay a fee of $330 as a deposit which would be used to reduce the amount of fees to be paid by the Applicant on a potential settlement of a claim by her. I accept the Applicant’s evidence that at about 1:30pm on 17 August 2021, she paid $330 to Unfair Dismissals Australia.
[14] At about 3pm on 17 August 2021, the Applicant spoke again to Ms Beaumont about making an unfair dismissal claim. Ms Beaumont explained that the Applicant was eligible to make an unfair dismissal claim. Ms Beaumont then obtained relevant information from the Applicant and completed an unfair dismissal application form for the Applicant. Although the Applicant was not provided with a copy of the draft unfair dismissal application form at this time, I accept the evidence given by Ms Beaumont and the Applicant that during their telephone discussion on 17 August 2021 Ms Beaumont went through the draft unfair dismissal application form she had prepared and asked the Applicant to confirm whether its contents were correct, which the Applicant did. There is a difference in the evidence given by the Applicant and Ms Beaumont as to what was said during their telephone conversation on 17 August 2021 concerning the process for filing the unfair dismissal application form. The Applicant gave evidence that Ms Beaumont told her that she would forward the unfair dismissal application form to her director and he would file it in the Commission; if they needed further information they would be in contact with the Applicant. Ms Beaumont gave evidence that she told the Applicant that she would forward the unfair dismissal application form to her director, who would send it to the Applicant to check before it was filed. I prefer the Applicant’s evidence over that given by Ms Beaumont in relation to this conversation. The Applicant came across as a very straightforward witness. She answered questions directly and readily acknowledged when she did not know the answer to a question asked of her. The Applicant’s evidence that she believed her unfair dismissal application would be lodged within time by Unfair Dismissals Australia was convincing. The Applicant was aware prior to communicating with Unfair Dismissals Australia that her unfair dismissal application form had to be filed in the Commission within 21 days of her dismissal. Although I accept that Ms Beaumont did her best to give truthful evidence, her evidence in relation to what she told the Applicant on 17 August 2021 would happen was somewhat inconsistent. At the commencement of her evidence, Ms Beaumont said that the Applicant gave instructions to Unfair Dismissals Australia to file her unfair dismissal claim in the Commission and she told the Applicant that they would file her unfair dismissal application in the Commission. Later in her evidence, Ms Beaumont gave evidence that she told the Applicant that she would forward the unfair dismissal application form to her director, who would send it to the Applicant to check before it was filed.
[15] I accept Ms Beaumont’s evidence, which is supported to some extent by exhibit A3, that at 3:44pm on 17 August 2021 she forwarded the unfair dismissal application she had prepared for the Applicant to her director at Unfair Dismissals Australia. Ms Beaumont is not aware of what happened after she provided the draft unfair dismissal application to her director or why it was not lodged on time. Indeed, no evidence was adduced to explain what happened to the unfair dismissal application after 3:44pm on 17 August 2020 and why it was not lodged in the Commission by midnight on 20 August 2021.
[16] At 11:11am on 14 September 2021, the Applicant sent an email in the following terms to [email protected]:
“Hi it’s Renae weyland here I’m just wondering how everything must be going forward with the claim where it may be at? Kind regards Renae weyland.”
[17] The Applicant gave evidence, which I accept, that she did not follow up on the lodgement of her unfair dismissal application at an earlier time than 14 September 2021 because she was told by Ms Beaumont on 17 August 2021 that it could be four to six weeks before they would be contacted by the Commission in relation to the application.
[18] At 11:18am on 14 September 2021, Unfair Dismissals Australia lodged the Applicant’s unfair dismissal application in the Commission by email. They gave “representative error” as the reason for not filing the application within 21 days of the dismissal.
[19] On 12 October 2021, the Applicant was directed by the Commission to explain why her request for an extension of time should be accepted. In response, she sent an email to the Commission at 10:09am on 14 October 2021 in the following terms:
“Hi,
I had employed unfair dismissals Australia to handle this matter with instructions to lodge prior to the 21 day cutoff. I have paid this company a fee and now find that I may have been made to believe this lawyer was actually following my instructions. Am not sure but waiting on a response from them in regards to whether the COVID situation had affected their failure to lodge in time. I have banking and email correspondence to show that I had organised this prior to the cutoff date.
Regards
Renae Weyland”
[20] In my view, it was a clear representative error on the part of Unfair Dismissals Australia not to file the Applicant’s unfair dismissal application by midnight on 20 August 2021. The Applicant sought assistance from Unfair Dismissals Australia on 16 August 2021, at which time there was plenty of time remaining to prepare and file an unfair dismissal application. Further, after speaking to Ms Beaumont on 16 August 2021, the Applicant paid a deposit to Unfair Dismissals Australia and provided Ms Beaumont with all the information she required to prepare the unfair dismissal application form. I do not accept the Respondent’s submission that the evidence does not establish that the Applicant gave clear instructions to file her unfair dismissal claim. Ms Beaumont gave evidence that the Applicant gave such instructions. Further, I have accepted the Applicant’s evidence that she was told by Ms Beaumont on 17 August 2021 that her unfair dismissal application would be filed in the Commission by the director of Unfair Dismissals Australia. Although it is not known how or why the internal processes at Unfair Dismissals Australia broke down, it is clear from the evidence that they were at fault for not filing the Applicant’s unfair dismissal application by midnight on 20 August 2021. The Applicant followed up on her claim on 14 September 2021, which is within the four to six week period she was told to expect prior to hearing back from the Commission.
[21] I consider that the Applicant does have an acceptable explanation for the delay in filing her application, namely, representative error on the part of Unfair Dismissals Australia in failing to lodge the application by midnight on 20 August 2021.
[22] In all the circumstances, I am satisfied that the delay in filing the application is to be attributed to the errors made by the Applicant’s paid agents. No part of the delay was occasioned by the conduct of the Applicant; I consider that she is blameless for the delay.
[23] For the reasons stated I consider the Applicant’s explanation for the delay in lodging her application to be an acceptable and reasonable explanation for the delay. This weighs in favour of a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[24] The Applicant says she was notified of the dismissal on the day it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal
[25] The Applicant did not take any action to dispute her dismissal, other than by filing her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
[26] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
[27] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.
[28] As to the allegations made against the Applicant and on which the Respondent relied in deciding to terminate her employment:
(a) the Applicant accepts that she honestly forgot to wear a mask on one occasion;
(b) the Applicant says that she wore a mask to attend to another client but moved the mask to below her nose while she was showering the client due to the steam and hot water; and
(c) in response to the serious allegation that the Applicant failed to attend a client appointment, falsified the Respondent’s sign-in and sign-out system and thereby defrauded the Respondent of wages, the Applicant says there was a mistake with clients in circumstances where she clocked on and off for work but attended a different client instead.
[29] The Applicant has an arguable case that her dismissal was harsh insofar as the mask wearing incidents are concerned. The allegation of fraud against the Applicant is a serious one. There is simply not enough material before the Commission at this time to make any meaningful assessment of the merits of the claim in connection with this issue. There would need to be documentary and oral evidence adduced at a final hearing before any proper assessment could be made of this issue.
[30] In all the circumstances, I consider the merits of the Applicant’s claim to be a neutral consideration in assessing her application for an extension of time.
Fairness as between the person and other persons in a similar position
[31] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
[32] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
[33] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant and Respondent, I am satisfied that there are exceptional circumstances. In making this evaluative assessment I have taken into account each of the factors in paragraphs 394(3)(a) to (f). The most persuasive factor in the circumstances of this case is the fact that the Applicant has provided an acceptable and reasonable explanation for the delay in lodging the application. In my view, it is unusual or uncommon for person to comply with all that is asked of them by their paid agents but to have their application filed late because of an error in the internal processes of the firm of paid agents they have engaged. I am also persuaded that it is appropriate in the circumstances of this case to exercise my discretion to extend the time for the Applicant’s application to be lodged. In my view, it is in the interests of justice that the Applicant, whose conduct did not contribute to the delay in lodging her application, be permitted to pursue her unfair dismissal case. I will therefore extend the time for the Applicant to lodge her unfair dismissal application to 14 September 2021. An order will be issued to that effect [PR735157].
DEPUTY PRESIDENT
Appearances:
Mr M Crossley, on behalf of the Applicant
Mr S Kopel, on behalf of the Respondent
Hearing details:
2021.
Newcastle (by telephone):
October 21.
Printed by authority of the Commonwealth Government Printer
<PR735160>
1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
2 Ibid
3 Long v Keolis Downer[2018] FWCFB 4109 at [40]
4 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
6 See, for example, C. Davidson, Print Q0784, 12 May 1998, (Ross VP, Watson SDP, Eames C); Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728; Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759; Melios v Qantas Airways Ltd[2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd[2011] FWA 2802; Long v Keolis Downer[2018] FWCFB 4109
7 (1997) 74 IR 413 at 418-9
8 Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759 at [17]; Long v Keolis Downer[2018] FWCFB 4109
9 [2018] FWCFB 4109 at [60]
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