Ms Stephanie Manila v Goodna Services Club Inc

[2016] FWC 4723

[2016] FWC 4723

FAIR WORK COMMISSION

DECISION

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

Ms Stephanie Manila
v
Goodna Services Club Inc
(U2016/2200)

COMMISSIONER HUNT BRISBANE, 2 AUGUST 2016

Application for relief from unfair dismissal – extension of time – representative error – extension granted.

[1] On 10 May 2016, Ms Stephanie Manila filed an application pursuant to subsection 394(1) of the Fair Work Act 2009 (the Act) claiming she was unfairly dismissed by Goodna Services Club Inc (Goodna Services Club).

[2] Goodna Services Club has objected to the Fair Work Commission (the Commission) exercising its jurisdiction to deal with the application because it was lodged more than 21 days after the dismissal took effect. A further jurisdictional objection has been made by Goodna Services Club, alleging that Ms Manila resigned her employment, and there had been no dismissal at the initiative of the employer.

[3] The matter was initially allocated to Senior Deputy President Drake. Her Honour wrote to Ms Manila requesting that she provide a written statement addressing why the time for filing the application ought to be extended.

[4] Ms Manila’s representative filed an outline of written submissions in relation to the granting by the Commission of an extension of time. Goodna Services Club’s representative filed written material in reply, opposing an extension of time being granted.

[5] The matter was allocated to me to determine whether an extension of time should be granted. My Associate wrote to the parties requesting they advise whether they wish to be heard in the matter or if it could be dealt with ‘on the papers’. Both parties consented to the matter being dealt with on the papers.

[6] This decision is in relation only to the application having been filed out of time.

Relevant facts and submissions

[7] Ms Manila submits that she resigned her employment on 12 April 2016 and contends that she was constructively dismissed.

[8] Ms Manila’s resignation letter was sent to Goodna Services Club by email at 1:39pm on 12 April 2016 and was in the following terms:

“To Whom it May Concern,

I am putting in writing my formal resignation letter effective immediately. I will await your decision regarding policy.

I thank the club for the 4 yrs (sic) of service and the opportunity that it has provided myself and my family.

I have gained opportunities outside of work which will be able to fit better into my personal life.

Regards

Stephanie Manila”

[9] Ms Manila sent a further email at 2:40pm on the same day, that email was in the following terms:

“To whom it may concern

I apologise for my wording. I was a little emotional. I meant to say that as per requirement I give my 4 weeks notice starting today.

I will honour my 4 weeks and will be there tonight to do my shift.

I apologise for the miscommunication

Regards

Stephanie Manila”

[10] In response to the resignation emails, Ms Manila received an email response from Goodna Services Club on 12 April 2016 accepting her resignation and advising her that her resignation would be effective immediately.

[11] On 13 April 2016 Ms Manila sent the response from Goodna Services Club to her representative, Workplace Law Group. Ms Sarah Lock of Workplace Law Group submits on behalf of Ms Manila that the email was sent to a generic email address and went into a ‘spam folder’ of her administration assistant as Ms Manila was a new client.

[12] Ms Lock further contends that her administration assistant had failed to inform Ms Manila that only the administration assistant attended to the generic email address, and was overseas at the time the email was sent by Ms Manila. Ms Manila was not made aware that she should send email correspondence directly to Ms Lock’s email address.

[13] Ms Lock submits that she had already been instructed to prepare the application on the basis that Ms Manila’s employment would end at the conclusion of the four week notice period, and on the assumption, had until 10 May 2016 to file the application.

[14] Ms Lock further submits that she did not sight the email correspondence that reveals that Ms Manila’s resignation was accepted with immediate effect. Ms Lock submits that as soon as she was alerted to the fact that there was a potential for the application to be out of time on account of the dismissal occurring on 12 April 2016, she finalised and lodged the application as soon as practicable.

[15] Ms Manila’s representative filed the application on her behalf on 10 May 2016.

[16] Goodna Services Club submits that Ms Manila has provided no explanation for the late filing of her application, nor identified any exceptional circumstances in favour of granting an extension.

[17] Goodna Services Club further contends that as Ms Manila freely resigned her position on 12 April 2016, she can be under no illusion that the termination took effect, and therefore the timeframe she had in which to file the application.

Relevant Statutory Provisions

[18] Section 394 relevantly provides as follows:

“394 Application for unfair dismissal remedy

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

(2) The application must be made:

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

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

(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.”

[19] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd¹ where the Full Bench said:

[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[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.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘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.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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. [Endnotes not reproduced]

[20] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.394(3) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

Consideration

[21] The 21 day period for lodgement is calculated on the basis that the first day of the period is the day after the date that the dismissal took effect.²  If the final day of the 21 day period falls on a weekend or a national public holiday (where the Commission is closed) the timeframe will be extended to the next business day.³

[22] I accept that Ms Manila resigned her employment on 12 April 2016, initially with immediate effect. I also accept that approximately one hour later Ms Manila rescinded the immediate effect of her resignation and advised Goodna Services Club that she wished to give four weeks’ notice of her resignation.

[23] Ms Manila then received a response from Goodna Services Club to her resignation emails on 12 April 2016, and was informed that her resignation was accepted and that she would not be required to serve the four week notice period that she had offered.

[24] I accept that Ms Manila received a response from Goodna Services Club accepting her resignation with immediate effect on 12 April 2016.

[25] I am satisfied that Ms Manila’s employment ceased on 12 April 2016. Accordingly, Ms Manila’s application is out of time by 7 days. It is necessary for me to determine if there are exceptional circumstances for the delay.

Paragraph 394(3)(a) - The reason for the delay

[26] The reason for the delay is claimed to be representative error.

[27] The Full Bench decision in M N Robinson v Interstate Transport Pty Ltd 4 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.

[28] 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 5 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 Case6 in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case7 found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act.8 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.””

[29] The Full Bench in D La Rosa v Motor One Group Pty Ltd 9 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.” 10

[30] A representative error, where the applicant was blameless, would constitute an exceptional circumstance. 11 When determining whether representative error constitutes an acceptable explanation for delay, the conduct of the applicant is a central consideration.12 The representative needs to have made an error through no fault of the applicant, and despite the applicant’s efforts to ensure that the claim is lodged.

[31] I accept that Ms Manila had instructed her representative to prepare her unfair dismissal application on the basis that she would serve a four week notice period.

[32] I accept that Ms Manila received an email from Goodna Services Club accepting her resignation with immediate effect and that Ms Manila forwarded that email to her representative with the expectation that her application would be properly made on her behalf.

[33] I accept that representative error has occurred in that due to a failure of the law firm to attend to the generic email account, Ms Lock was not in receipt of pertinent information that would have guided her to file the application within the required period of time.

[34] I am satisfied that the application was filed out of time due to representative error and that Ms Manila is not at fault for that error.

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

[35] Ms Manila resigned her employment on 12 April 2016, with four weeks’ notice and contends that she was constructively dismissed.

[36] Goodna Services Club accepted her resignation by email 12 April 2016, and advised her that it had immediate effect.

[37] Ms Manila forwarded a copy of the email sent to her on 12 April 2016 to her representative on 13 April 2016.

[38] I am satisfied that Ms Manila was aware that her dismissal had taken effect on 12 April 2016.

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

[39] Ms Manila forwarded a copy of the correspondence sent to her by Goodna Services Club to her legal representative the following day.

[40] I am satisfied that Ms Manila intended to take action to dispute her dismissal by forwarding the relevant correspondence relating to her dismissal promptly to her representative.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[41] Ms Manila submits that there has not been any prejudice to Goodna Services Club as they still have accurate records of the events.

[42] Ms Manila further submits that there are a few representatives that are no longer working for Goodna Services Club and have also chosen to resign.

[43] Goodna Services Club did not make submissions in relation to prejudice or prejudice caused by the delay.

[44] I consider prejudice to the employer to be a neutral consideration.

Paragraph 394(3)(e) - The merits of the application

[45] Ms Manila’s submissions are that her position became untenable over the course of her employment as a result of:

• Being stood down from her employment for no substantiated reason;



• Suffering humiliation for herself and her family on the defamation of her father and her family name;



• Being the subject of a disparaging remark about her character in a group email to the board; and



• Enduring intense fatigue she felt being required to work repeated night shifts and weekends despite other staff not being required to and the diminished time she spent with her family.

[46] Ms Manila contends that she felt like she had no alternative but to resign her position.

[47] Goodna Services Club contends that the application is without merit, and has no prospects of success, because Ms Manila was not dismissed at the initiative of the employer.

[48] Goodna Services Club submits that the Commission need not embark on a detailed consideration of the substance of the case to arrive at this conclusion, and should decline to an extension of time for the filing of the application as:

• There are a number of factual positions put by Goodna Services Club that are not disputed by Ms Manila; and



• The conduct of Goodna Services Club could not be said to have a probable result of leaving Ms Manila with no choice but to resign her employment.

[49] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission "should not embark on a detailed consideration of the substantive case"¹³ for the purpose of determining whether to grant an extension of time to an applicant to make their application.

[50] In the matter of Kornicki v Telstra-Network Technology Group¹⁴ the Commission considered the principles applicable to the extension of time discretion under subsection 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench 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.

[51] To require an applicant to establish more than that the substantive application was not without merit would, as noted by the Full Bench in Kyvelos v Champion Socks Pty Ltd¹⁵:

… serve as an encouragement to other applicants for late acceptance pursuant to subsection 170CE(8) to put the whole of their evidentiary case and seek to cross examine the respondent’s witnesses to reduce the possibility of an adverse finding on the merits. This would lead to unjustifiable delay and expense.

[52] I consider that, prima facie, Ms Manila has resigned her employment and would therefore be faced with the onus of demonstrating that she has been dismissed at the initiative of the employer (i.e. constructively dismissed). I am not satisfied that Ms Manila’s application is completely without merit.

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

[53] Ms Manila relies on Dean-Villalobos  16as support for the principle that fairness should be given as between Ms Manila and other persons in a similar position.

Conclusion

[54] I have considered the case authorities and made my findings in the matter.

[55] Having considered the matters in s.394(3) of the Act, Ms Manila has demonstrated that there are exceptional circumstances sufficient to warrant an extension of time. The reason for the delay in filing the application is representative error. Ms Manila had given instructions for her legal representative to commence proceedings, and I determine that she is not responsible for the failure of the application being filed outside of the required time limit.
[56] I exercise my discretion pursuant to s.394(3) of the Act to extend time for filing until 10 May 2016. I Order accordingly.

[57] The matter will be listed for determination of the substantive application with further directions to issue for the filing of further material.

COMMISSIONER

<Price code C, PR582793>

1 [2011] FWAFB 975

2 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’). This Act as in force on 25 June 2009 applies to the Fair Work Act (see Fair Work Act s.40A).

3 Ibid s.36(2); See Hemi v BMD Constructions Pty Ltd [2013] FWC 3593

 4   [2011] FWAFB 2728.

 5 (1997) 74 IR 413.

 6   Print Q0784.

 7   [2011] FWAFB 466.

 8 Ibid at [35].

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

 10   PR924583 at para 24.

 11   M N Robinson v Interstate Pty Ltd[2011] FWAFB 2728.

 12   Clarke’s Case (1997) 74 IR 413; Davidson’s Case Print Q0748; Alicia Atkinson v Vmoto Limited; Yi (Charles) Chen; Trevor Beazley [2012] FWA 9043.

13 Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [14]

14 Kornicki v Telstra Network Technology Group [Print 3168, 22 July 1997] at page 8

15 Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [15].

 16   Dean-Villalobosv QGC Limited T/A QGC[2013] FWC 1537

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