Ms Terrianne Moore v St John's Park Bowling Club Ltd T/A Tuncurry Bowling Club
[2011] FWA 8898
•16 DECEMBER 2011
[2011] FWA 8898 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Terrianne Moore
v
St John's Park Bowling Club Ltd T/A Tuncurry Bowling Club
(U2011/11105)
DEPUTY PRESIDENT HARRISON | NEWCASTLE, 16 DECEMBER 2011 |
Hearing re extension of time
[1] These proceedings concern an application pursuant to section 394(3) of the Fair Work Act (“FW Act”) to extend time for an application for relief from unfair dismissal.
[2] The applicant, Ms Terrianne Moore, was employed by the respondent, St Johns Park Bowling Club trading as Tuncurry Bowling Club, as an executive chef from 18 August 2008 to the termination of her employment in August 2011.
[3] The matter was heard in Newcastle on 13 December 2011. Ms Doust of counsel appeared on behalf of the applicant instructed by Ms Gabrielle Watts, Solicitor of Stacks Lawyers.
[4] Ms Doust brought evidence from the applicant; Ms Watts: and Ms Brenda Archer, a legal secretary employed by Stacks.
[5] Mr Murray, Solicitor of Eastern Commercial Lawyers, appeared for the respondent and brought evidence from Ms Kylie Podger, Assistant Manager of the respondent.
[6] An allegation of racial abuse was made against the applicant by an apprentice chef employed by the respondent. The allegation was subject to investigation and discussion with the applicant on 22 July 2011, 27 July 2011 and 2 August 2011.
[7] The applicant conceded that she had used the term “black slut” in referring to the apprentice, putting that it was a term he used to refer to himself and that she was unaware that on changing his lifestyle he now found the term offensive. The applicant apologised for its use. The applicant’s evidence is that she strongly denies using the term “coon” as she is aware of the offensive nature of this term and would not use it.
[8] The evidence is that the respondent has written statements supporting the allegation which were shown to the applicant during the course of the meetings with her, but she was not given a copy or an opportunity to respond to them or to meet directly with the complainant or authors of the statements.
[9] Ms Watts attended the meeting of 2 August 2011, with the applicant, as her representative. The applicant was advised at that meeting that her employment was terminated. This was confirmed in correspondence dated 5 August 2011 (Exhibit 1).
[10] The respondent was made aware in the meeting of 2 August 2011 that the termination of employment would be contested.
[11] The applicant met with Ms Watts again on 4 August 2011 and confirmed her intention to lodge an application. Ms Watts referred to the 14 day time limit and undertook to draft the application for approval and signature forthwith.
[12] The application was prepared and posted to the applicant for signature, received by her on 9 August 2011. The applicant signed the application and retuned it to Stacks on 10 August 2011 with some amendments and her personal cheque for the fee for representation up to conciliation.
[13] The applicant’s evidence is that she understood that Ms Watts would sign the application on her behalf once the amendments were made and that Stacks would complete the administrative arrangements to file the application in time.
[14] The completed application then languished in the Stacks’ office until it was sent by post, arriving at Fair Work Australia’s Sydney Registry on 26 August 2011.
[15] Ms Archer’s evidence is that she typed the draft application on 5 August and posted it to the applicant.
[16] The applicant did not receive the draft application until 9 August 2011 as she had changed her residence and mail was being re-directed from her old address to her new address.
[17] Ms Archer’s evidence is that the amended application was completed on 10 August 2011 but could not be sent until the cheque from the applicant had cleared to allow Stacks to draw a cheque from their trust fund for the filing fee. Ms Archer deposed that the cheque had not cleared by close of business on Friday, 12 August 2011 and the matter was left in her “in tray” to be dealt with on Monday, 15 August 2011.
[18] Ms Archer became ill over the weekend of 13-14 August 2011 and was unable to return to work until Monday 22 August 2011.
[19] On her return to work Ms Archer discovered her in tray full with work which had accumulated in her absence, and the applicant’s application at the bottom.
[20] Ms Archer deposed that she questioned other secretaries as to whether they had checked her in tray for urgent work in her absence and was advised that no-one had thought of it.
[21] Ms Archer verified that the applicant’s cheque had cleared, arranged for a cheque for the application fee to be drawn, and gave the application to Ms Watts for signature the following day, 23 August 2011.
[22] Ms Watts realised the application was now out of time and ensured that it was sent that day 23, August 2011.
[23] There is room for some criticism that the application was not attended to by others in Ms Archer’s absence; by Ms Archer and Ms Watts on 22 August when it was discovered in Ms Archer’s in tray; and that it was sent by post (rather than lodged by facsimile or e-filing) which added a further three days to the filing time.
[24] These, however, are not issues attributable to the applicant and are circumstances which, while falling into the category of representative error, also have the character of exceptional and unusual circumstances.
[25] Section 394(3) permits an exercise of discretion to admit an application out of time only where 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.
[26] In consideration of these elements I find in respect to (a), the reason for the delay is representative error. This is helpfully discussed by the Full Bench in M N Robinson v Interstate Transport Pty Ltd 1where the Bench said:
“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 applicant 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.
... ...
(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 carryout those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.”
[27] The evidence is that the applicant did everything she was reasonably required to do to have the application lodged in time and was only thwarted by the consequences of Ms Archer’s illness and the failure of other staff within Stacks to be alert to urgent matters in Ms Archer’s absence.
[28] The evidence of Ms Archer is that in the two years she has been employed by Stacks such an unusual combination of circumstances has never before occurred.
[29] I am satisfied that the representative error is in itself an exceptional and unusual circumstance.
[30] Whilst it is said against the applicant that she made no enquiry of her solicitor after return of the draft application and her cheque; nor took any other action to ensure that the application was properly lodged in time, I am persuaded that, as a result of the conversation between herself and Ms Watts in which she was made aware of the 14 day time limit, the applicant was entitled to the position that her representative was alert to the time issue and was acting accordingly.
[31] I find the applicant to be blameless in respect to the delay.
[32] It is also necessary to consider:
(b) whether the person first become aware of the dismissal after it had taken effect;
[33] The evidence is that the applicant was aware of the termination of employment from 2 August 2001, three days prior to the formal termination. Accordingly, this consideration is not applicable in this case.
(c) any other action taken by the person to dispute the dismissal;
[34] The evidence is that the applicant actively disputed the dismissal from the time she first became aware of it which mitigates in favour of an exercise of discretion.
(d) prejudice to the employer ( including prejudice caused by the delay);
[35] The respondent submits that prejudice arises on the basis that it has employed an executive chef to replace the applicant, that the racial abuse has caused compensable illness to the victim; the respondent will have to allocate resources to defend its decision to terminate the applicant’s employment when it should be able to arrange its affairs and utilise its resources on the basis that a claim out of time can no longer be made against it.
[36] This submission denies statutory discretion to admit an application out of time, which is within jurisdiction subject to the finding of exceptional circumstances.
[37] The nature of the prejudice pleaded is no more than the usual consideration in defending a claim made in time and accordingly, in my view, does not mitigate against admission of the application.
(e) the merits of the case;
[38] The substantive issues in the matter which remain contested are of significant gravity and, while the issues are unresolved the evidence is that the applicant has not been given the statements of complaint or had the opportunity to confront her accusers, which gives rise to consideration of a denial of natural justice.
[39] On the available evidence a consideration of the merits mitigates in favour of allowing an extension of time.
(f) fairness as between the person and other persons in a similar position.
[40] This consideration does not arise in the circumstances of this matter.
[41] I am satisfied that the representative error and consideration of other factors set out above leads to the conclusion that an exercise of discretion to admit this application out of time is appropriate.
[42] I so determine.
DEPUTY PRESIDENT
Appearances:
Ms L Doust of Counsel for the applicant
Mr J Murray, Solicitor for the respondent
Hearing details:
2011
Newcastle
December 13
1 [2011] FWAFB 2728, paras 24, 25
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