Neil Finlayson v Western Health T/A Western Hospital

[2014] FWC 6076

[2014] FWC 6076

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Neil Finlayson
v
Western Health T/A Western Hospital
(U2014/11294)

COMMISSIONER GREGORY MELBOURNE, 20 OCTOBER 2014

Application for extension of time.

Introduction

[1] Mr Neil Finlayson was employed by Western Health T/A Western Hospital (“Western Health”) as a security guard between 18 March 2002 and his dismissal on 7 July 2014. An unfair dismissal application was lodged on his behalf by his legal representatives, Nowicki Carbone Lawyers, on 29 July 2014, one day after the 21 day time limit set by s.394 of the Fair Work Act 2009 (Cth) (“the Act”).

[2] However, s.394(3) of the Act allows an extension of time to be granted if the Fair Work Commission (“the Commission”) believes there are “exceptional circumstances” to warrant the exercise of this discretion. It 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.” 1

The issue to be decided

[3] Are there “exceptional circumstances” existing under s.394(3) of the Act to warrant the Commission exercising its discretion to grant Mr Finlayson additional time in which to make his application?

The evidence and submissions

[4] This matter is somewhat unusual in that two separate submissions have been filed on behalf of Mr Finlayson. The first submission, together with a witness statement from Ms Alice Robinson, Mr Finlayson’s representative from Nowicki Carbone, submits the application was lodged out of time due to representative error. 2 However, the second submission argues Mr Finlayson’s application was actually received within time, and an extension of time is not required.3

[5] After receiving both submissions the Respondent’s representative, Tresscox Lawyers advised the Commission they did not intend to make submissions, and consented to the Applicant’s request that the matter be determined on the papers. On 3 September the Commission accordingly advised both parties the matter would be determined in this way.

The first submission

[6] The witness statement of Ms Robinson from Nowicki Carbone sets out the following series of events in regard to the reason for delay in lodging.  4

• On 14 July Mr Finlayson attended Nowicki Carbone and gave Ms Robinson instructions in relation to an unfair application.



• On 24 July Ms Robinson sent a draft of the F2 document to Mr Finlayson seeking his instructions as to the contents of the document.



• On 25 July Ms Robinson received instructions from Mr Finlayson and finalised the document for lodgement. She emailed him advising his suggested amendments had been incorporated and confirmed the document would be lodged on his behalf.



• Ms Robinson arranged for a cheque in payment of the filing fee. It was ready on 28 July 2014.



• On 28 July a copy of the application with the cheque was posted to the Commission. However, Ms Robinson said while it is her usual “practice” to both post and email a copy of the application to the Commission, in this case she omitted to send a copy by email. 5



• On 29 July she became aware she had not emailed a copy of the application to the Commission. She then arranged for an email to be sent. It was received on 29 July at 12:05pm and is the first receipt of the application by the Commission.

[7] Her statement concludes by indicating:

“As a result, and through my error as the Applicant’s representative, the application was lodged one day out of time.” 6

[8] The submission also refers to various decisions in support of the contention that where the Applicant is blameless, and the delay in lodging has occurred through no fault of his/her own, this can constitute the “exceptional circumstances” that warrant an exercise of the discretion to extend time to make application.

[9] In the Full Bench decision of M N Robinson v Interstate Transport 7 (“Robinson”) the application was lodged three days late due to what was submitted to be representative error. The Full Bench concluded (references omitted):

“[30]Mr Robinson arranged legal advice three days after the termination of his employment. At that time Mr Robinson requested that Mr Tayler prepare a client agreement for his consideration and upon receiving the agreement, he executed the agreement on 13 May 2010, within a week of its receipt. On the day he executed the agreement, Mr Robinson instructed Mr Tayler to file a general protections application on his behalf. It is unsurprising that Mr Robinson, having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative’s requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of providing clear instructions to Mr Tayler to lodge his application.

[31]As noted by a Full Bench in D La Rosa v Motor One Group Pty Ltd, 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 handsof his or her representative.’

[32]For these reasons we are satisfied that Commissioner Simpson erred in his approach to representative error and his findings as to Mr Robinson’s conduct in that regard. This error led to an ultimate conclusion which was unsupported by the facts and which resulted in a decision which was plainly unjust to Mr Robinson in circumstances where he had acted promptly to obtain legal representation and instructed his legal representative to file his application. We are satisfied that the Commissioner erred in the sense of House.” 8

[10] Mr Finlayson’s submissions also made reference to the matter of Clark v Ringwood Private Hospital 9 (“Clark”) in support of the contention that where an Applicant is blameless representative error can constitute “exceptional circumstances.”10

[11] The submission also made reference to the other matters in s.394(3)(b) - (f) of the Act that the Commission is required to take account of. In summary, it submits –

● Mr Finlayson was aware of his dismissal at the time it occurred.

● He took action to dispute his dismissal after it occurred and within the next seven days had sought legal advice and instructed his Solicitor to prepare and lodge an unfair dismissal application on his behalf.

● There is no particular prejudice to the employer in granting an extension of time, other than the usual obligation to respond to the application that would arise in the normal course of events.

● A neutral finding should be made about the respective merits of the matter.

● There are no relevant matters about fairness arising between Mr Finlayson and any other employees in a similar position.

The second submission

[12] The relevant parts of the second submission provided on behalf of Mr Finlayson state as follows:

“4. The Applicant submits that pursuant to the Unfair Dismissal Benchbook the 21 day period began the day after his termination took effect, being 8 July 2014. In so submitting, the Applicant refers the Commission to section 36(1) of the Acts Interpretation Act 1907 (Cth), which provides the legislative authority for the calculation of the 21 day period after his dismissal.

5. In light of the Acts Interpretation Act 1907 (Cth) and pursuant to section 394(2) of the Fair Work Act 2009 (the Act) the Applicant submits that the 21 day timeline in which to submit his Form F2 Unfair Dismissal Application (the application) began on 8 July 2014 and ended on 29 July 2014. Therefore, the last day for submitting the application was 29 July 2014.

6. The Applicant further submits that the application was lodged with the Fair Work Commission via email at 12.05 pm on 29 July 2014, thereby meaning it was lodged within the 21 day time period as prescribed by the Act.

7. In view of the foregoing, the Applicant respectfully submits that a granting of an extension of time is not required, as the application was lodged within time. Further and/or in the alternative, the Applicant notes that he has made submissions with respect to the delay of one day, in the event that the Commission finds that the 21 day time limit expired on 28 July 2014.” 11

Consideration

[13] I intend to deal, firstly, with the second submission received on behalf of Mr Finlayson. It contends that the 21 day period begins to be counted from the day after the termination takes effect. In Mr Finlayson’s case this would be 8 July. Therefore, the submission argues the 21 day time period concludes on 29 July.

[14] The submission places particular reliance upon the Unfair Dismissal Benchbook published by the Commission in July this year. At page 15 the Benchbook poses the question, “How is 21 days calculated?” It responds by indicating, “The 21 days for lodgement does not include the date that the dismissal took effect. This means that day one commences the day following the dismissal.” The submission interprets this to mean that the 21 days begins to be counted from the day after the dismissal, so that it is effectively day zero, and day 1 is the second day after the date of dismissal.

[15] I do not agree with this submission. While it is agreed that the day of dismissal is not included in the 21 days, the 21 day period does begin to be counted from that date. There is no contest about the fact that Mr Finlayson was dismissed by Western Health on 7 July. Therefore, the 21 day period begins to run from that date, and “day 1” is then the day after that date, being 8 July, and “day 21” is 28 July.

[16] As the application was filed on 29 July it was therefore filed one day after the requisite 21 day period. While I do not believe it is necessary to provide further explanation about what has been the long-standing practice in calculating the number of days, I note that a similar conclusion was reached by Senior Deputy President Richards in the matter of Hemi v BMS Constructions 12, after he also had regard to the requirements of the Acts Interpretation Act 1901.

[17] Therefore, I am satisfied Mr Finlayson’s unfair dismissal application was filed outside the requisite time period, if only by one day.

[18] I now turn to consider whether it is appropriate to exercise the discretion to grant Mr Finlayson additional time in which to make application. In considering this I must have regard to each of the considerations in s.394(3) of the Act. A number of decisions of this Tribunal and its predecessors have considered what is required to find exceptional circumstances exist to justify an extension of time being granted. I refer, for example, to the decision of the Full Bench in Nulty v Blue Star Group 13. It was made in the context of a general protections application, however, the principles established have been held to be of broader application. A relevant extract from the Full Bench decision is contained at [13] and [14] and states:

“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.

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.” 14

[19] I have had regard to these principles, and the various matters in s.394(3) I am required to take account of, in coming to a decision in this matter.

(a) the reason for the delay

[20] The Full Bench in Clark stated “The following general propositions should be taken into account in deciding whether or not representative error constitutes an acceptable explanation for delay. Those propositions are as follows:

“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.” 15

“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.” 16

“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 applicants 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).” 17

[21] The decision in Robinson v Interstate Transport Pty Ltd 18(“Robinson”) is also relied upon by Mr Finlayson. In that matter the Applicant gave a clear direction to his Solicitor to make application on his behalf, and the subsequent delay in lodging was due to the Solicitor overlooking a reminder on the case management system. This was despite the fact that after providing instructions to his Solicitor the Applicant did little from that point to enquire about progress of the matter. The application was dismissed at first instance and the decision appealed. The Full Bench, firstly, noted with approval the approach adopted in Clark. It continued to indicate:

“[29] We find that the Commissioner erred in diminishing the significance of the representative error on the basis that Mr Robinson was inactive between 13 May 2010 and 18 June 2010.” 19

[22] It continued to indicate in the next paragraph :

“[30] It is unsurprising that Mr Robinson, having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative’s requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of the providing clear instructions to Mr Taylor to lodge his application.” 20

[23] It continued:

“[36] We find that there was an acceptable explanation of the reason for the delay in lodgement of the application - representative error resulting from the oversight of Mr Robinson’s original representative of the electronic reminder whilst the filing of the application was within his care and responsibility. In circumstances where Mr Robinson had promptly sought legal advice following his termination, promptly executed a client agreement prepared on his instructions and, upon doing so, immediately instructed his original representative to lodge a general protections application, we find that he was entitled to rely upon his representative to act on his clear instructions to file an application and was blameless for the delay in lodgement of the application.” 21

[24] The Full Bench accordingly upheld the appeal concluding:

“In our view, the error by Mr Robinson’s original representative, in circumstances in which Mr Robinson is blameless for the delay, constitutes an exceptional circumstance in which the application should be accepted late.” 22

[25] I now turn to consider the present matter in light of these decisions and the submissions and evidence of the parties.

[26] I am satisfied the relevant authorities regarding the matter of “representative error” require that a “clear direction” has been given to the representative. This was the case in Robinson, where a clear and express direction was given by the client to the Solicitor to make application on his behalf. I am also satisfied that this is what occurred in the present matter, and having given that clear and express direction Mr Finlayson cannot be blamed for the fact his application was not lodged within the requisite time period. I am also satisfied the decisions referred to make clear that this situation can constitute the “exceptional circumstance” that warrant an extension of time being granted in which to make application.

[27] I am also required to take account of the remaining matters in s.394(3) and now deal with each in brief detail.

(b) whether the person first became aware of the dismissal after it had taken effect

[28] It is clear Mr Finlayson was aware of his dismissal after it had taken effect.

(c) any action taken by the person to dispute the dismissal

[29] Mr Finlayson clearly took action to dispute his dismissal by seeking legal advice within the 21 day timeframe, and by giving instructions for an unfair dismissal application to be lodged on his behalf. The evidence of Ms Robinson indicates that he sought legal advice within a week after his dismissal, and gave instructions at that time for an unfair dismissal application to be lodged on his behalf.

(d) prejudice to the employer (including prejudice caused by the delay)

[30] Western Health did not make submissions about this matter, and Mr Finlayson submits it will suffer no particular prejudice, other than what would ordinarily involved in dealing with an application of this kind. Given that Western Health is a large and well resourced employer, and the delay involves only one day, I am satisfied this is essentially a neutral consideration in all the circumstances of this matter.

(e) the merits of the application

[31] I am in no position to express any view about the respective merits of Mr Finlayson’s application based on the submissions in this matter. I also note that the relevance of the issue of “merit,” when determining an application for an extension of time, was considered by a Full Bench of the Australian Industrial Relations Commission in Kyvelos v. Champion Socks Pty Limited 23 (“Kyvelos”) when dealing with similar legislative provisions to those now contained in the Act. The The Full Bench held:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 24

[32] It continued:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 25

[33] As indicated, I have not formed a view about the respective merits of the matter, based on the submissions now before the Commission. However, the decision in Kyvelos indicates that I am not required to do so at this point. I am therefore satisfied this is also a neutral consideration.

(f) fairness as between the person and other persons in a similar position.

[34] I am again satisfied this is a neutral consideration.

Conclusion

[35] I have had regard to each of the considerations in s.394(3) in coming to a decision in this matter. As indicated, I am satisfied the reason for the delay, being representative error, is the most significant matter to be taken into account. I am also satisfied the reason for the delay was entirely due to Mr Finlayson’s representative. In these circumstances I am satisfied it is appropriate to exercise the discretion available to the Commission to grant additional time to Mr Finlayson in which to make application. The matter will now be listed again to deal with the substantive issues concerning his unfair dismissal application.

COMMISSIONER

Final written submissions:

The Applicant filed submissions in accordance with directions on 15 August 2014 and filed further submissions on 20 August 2014.

The Respondent declined to file submissions and advised the Commission of this on 26 August 2014.

 1   Fair Work Act 2009 (Cth) at s.394(3).

 2   Submissions with respect to extension of time submitted by the Applicant on 15 August 2014 at para 10.

 3   Further Submissions with respect to extension of time submitted by the Applicant on 20 August 2014 at para 7.

 4   Witness Statement of Alice Robinson dated 15 August 2014 .

 5   Ibid at para 12.

 6   Ibid at para 14.

 7   [2011] FWAFB 2728.

 8   Ibid at [30]-[32].

 9 (1997) 74 IR 413.

 10   Submissions with respect to extension of time submitted by the Applicant on 15 August 2014 at para 12.

 11   Further Submissions with respect to extension of time submitted by the Applicant on 20 August 2014 at para 4-7.

 12   [2013] FWC 3593.

 13   [2011] FWAFB 975.

 14   Ibid at [13]-[15].

 15   Above n.vi; PR5279 at page 7.

 16   Ibid.

 17   Ibid at page 8.

 18   [2011] FWAFB 2728.

 19 Ibid at [29].

 20 Ibid at [30].

 21 Ibid at [36].

 22 Ibid at [41].

 23   Dec 1294/00 M Print T2421.

 24 Ibid at [14].

 25   Ibid.

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