Ms Yasmin Hamad v Dixie Cummings Enterprises Pty Ltd

[2015] FWC 8838

[2015] FWC 8838

FAIR WORK COMMISSION

REASONS FOR EX TEMPORE DECISION

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

Ms Yasmin Hamad
v
Dixie Cummings Enterprises Pty Ltd
(U2015/15148)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 23 DECEMBER 2015

Application for relief from unfair dismissal; application made outside of the time prescribed; whether there are exceptional circumstances; whether discretion to extend should be exercised; representational error; extension of time granted.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 16 December 2015. Ms Hamad (Applicant) commenced employment with Dixie Enterprises Pty Ltd (Respondent) on or about 29 December 2009. She was employed in the position of a Manager of a department in the Respondent's business.  Her employment was terminated summarily by the Respondent with effect on 27 October 2015. The reason given by the Respondent for the decision to terminate the Applicant's employment was that she had accessed, without authorisation, an email to the Chief Operating Officer, had read the email and discussed the contents of the email with other staff members, and the email was said to be a confidential communication.

[2] The Applicant has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act), and that application was lodged on 18 November 2015 which was one day outside of the time prescribed by the Act. The Applicant therefore needs the time within which the application should be lodged to be extended. The Act sets out the circumstances in which a discretion to extend the time might be exercised. That discretion will only be exercised if I am first satisfied that there are exceptional circumstances having regard to the matters set out in s.394(3).

[3] Relevantly, I am required to take into account the reason for the delay, whether the Applicant first became aware of her dismissal after it had taken effect, any action taken to dispute the dismissal, prejudice to the employer, the merits of the application and fairness as between the Applicant and other persons in a similar position. As to the reason for the delay, on the evidence given in a witness statement by Mr Mulligan, who is a solicitor for the Applicant, it is apparent that the Applicant consulted Mr Mulligan on or about 6 November 2015.

[4] During the conference on or about 6 November 2015, the Applicant handed to Mr Mulligan a completed application form and gave him instructions to lodge the application form with the Fair Work Commission (Commission). Based on correspondence passing between the Applicant and her solicitor it is apparent that the Applicant's solicitor informed the Applicant that he would lodge the application the following week. Mr Mulligan ultimately did not lodge the application until 18 November 2015. His explanation for his failure to lodge within time was that he had miscalculated the timeframe within which the application could be made because he had forgotten that October has 31 days.

[5] Be that as it may, it seems to me that given the short period of time of the delay, coupled with the steps that the Applicant took to consult her solicitor, give clear instructions to file an application and complete the application herself, that the Applicant could not be expected to do any more during that time period to pursue her claim. She was entitled to rely upon the representations that were made by her solicitor in order to pursue her claim. In those circumstances, I am satisfied that there has been a representative error and I am also satisfied that the error is an acceptable explanation for the delay for the whole period of the delay. That is a matter weighs in favour of the Applicant.

[6] As to the question whether the Applicant first became aware of the dismissal after it took effect, it is clear on the material lodged by the Applicant and the Respondent that the Applicant became aware of her dismissal on the day it took effect. Given those circumstances, that is a matter that weighs in favour of the Respondent in this case. It is not apparent that the Applicant took any step to dispute her dismissal with the Respondent or elsewhere, other than lodging the application with her solicitor and giving him clear instructions to file that application. Given that there was a very short delay in those circumstances, I think that that consideration is a neutral one.

[7] As to prejudice to the Respondent, it would be a difficult argument to make for the Respondent to suggest that a one day delay would result in prejudice beyond the usual prejudice associated with defending applications of this kind and I take the absence of prejudice into account. As to the merits of the claim, it seems to me that the central issue in this matter will be whether or not the conduct of the Applicant justified summary dismissal.  A further issue will be whether or not the Applicant was denied procedural fairness in relation to the dismissal, and as I also apprehend on the materials a further issue will be whether there has been differential treatment of the employees who engaged in the same or similar conduct.

[8] Those are matters about which at an interlocutory stage it is difficult to make or form concluded views about. However, for present purposes I am satisfied on the material that there is at least an arguable case that the dismissal was unfair, and in those circumstances that is a matter that weighs in favour of the Applicant. As to fairness between the Applicant and other persons in a similar position, neither party in their written material drew my attention to any particular case that is similar factually to the present circumstances. That consideration is generally concerned with ensuring that the Commission consistently applies the principles relating to extension of time.

[9] However, it does appear to me that the circumstances in this case are similar to those that were considered by a Full Bench of Fair Work Australia in Robinson v Interstate Transport Pty Ltd [2011] 211 IR 347 where, like here, the applicant gave clear instructions to his solicitor in that case to lodge an application and the application was lodged three days outside of the time prescribed. The Full Bench in that case was of the view that, in those circumstances, the applicant could not have done any more given the short period of delay in order to prosecute his claim, and in so doing it overturned a single member decision refusing the application for an extension of time at first instance.

[10] Taking all of the matters into account, I am satisfied overall that there are exceptional circumstances. Further, given the short period of delay, the nature of the representative error, and the fact that the Applicant was blameless in the error I am satisfied that I should exercise my discretion to extend the period of time and I do so. I order that the period within which an application by the Applicant can be made be extended to 18 November 2015. The application has therefore been validly made.

[11] As a post script, immediately after delivering my ex tempore decision I conducted a conference between the parties the result of which was a settlement and discontinuance of the application.

DEPUTY PRESIDENT

Appearances:

Mr P Mulligan on behalf of the Applicant.

Mr Cummings on behalf of the Respondent.

Hearing details:

Melbourne.

2015.

December 16.

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