Nicole Paxman v Boorowa Council
[2012] FWA 7266
•23 AUGUST 2012
[2012] FWA 7266 |
|
DECISION |
Fair Work Act 2009
s.773—Termination of employment
Nicole Paxman
v
Boorowa Council
(C2012/4257)
COMMISSIONER DEEGAN | CANBERRA, 23 AUGUST 2012 |
Application for extension of time, exceptional circumstance, two applications, representative error, additional time allowed.
[1] This application was made by Ms Nicole Paxman (the applicant) alleging the unlawful termination of her employment under s.773 of the Fair Work Act 2009 (the Act) by Boorowa Council. Prior to making the current application, the applicant had made an application in relation to the termination of her employment under s.365 of the Act, which was lodged with Fair Work Australia (FWA) on 31 May 2012. The s.365 application was discontinued on 19 June 2012.
[2] On the same day as the s.365 application was discontinued, the s.773 application was made on behalf of the applicant. The applicant’s employment was terminated by Boorowa Council on 2 April 2012, therefore the s.773 application is 18 days outside the prescribed time limit for lodgement.
[3] A conference in the matter took place on 6 July 2012. This conference was unsuccessful. After the conference concluded and it became apparent that subsequent settlement negotiations had also been unsuccessful, the respondent raised a jurisdictional objection to the application on the basis that the application had been lodged out of time.
[4] The matter was listed for hearing to determine whether, pursuant to s.774 (2) of the Act, a further period of time would be allowed for the filing of the application.
The applicant’s case
[5] It was the applicant’s submission that the cause of the delay in filing the s.773 application was representative error. In support of this submission the applicant filed a witness statement and her representative, Mr Chris Lowe, filed an affidavit.
[6] In his affidavit Mr Lowe stated that in the response to the s.365 application the employer had raised a jurisdictional objection, claiming that there was no jurisdiction as the respondent was not a national system employer. According to Mr Lowe he had received the response on 12 June, had then reviewed the Act and discussed the matter with the applicant. On 19 June, he had, on the applicant’s behalf, discontinued the s.365 application and made the s.773 application that day.
[7] The applicant’s witness statement agreed with Mr Lowe’s version of events, adding that she had nothing more than a basic knowledge of the Fair Work Act, knew nothing about the time limits associated with applications and relied wholly on the advice of her legal representative in relation to the filing of the application.
[8] Mr Mahendra, for the applicant, noted that Fair Work Australia (FWA) may only allow a further extension of time if satisfied that there are exceptional circumstances, taking into account the relevant matters in s.774(2). He relied on the case of Przedpelski v Trustee of Czapp Pty Ltd trading as Airport Doors Pty Ltd 1for authority as to what constitutes exceptional circumstances.
[9] It was also submitted for the applicant that the circumstances for the delay in filing her application are similar to the circumstances in Trudgett v Training Aids Australia P/L 2(Trudgett). It was put that in that matter Commissioner Raffaelli found that the delay in the filing of the application was due to representative error and that the applicant bore no responsibility for the delay. It was submitted further that the applicant relied on the advice of her legal representative, took prompt action to dispute the termination and that extending the time would not prejudice the employer.
The respondent’s case
[10] The respondent tendered a chronology of events in relation to the application. The chronology largely confirmed the evidence of Mr Lowe as to the relevant dates, although there was disagreement as to whether the employer response was filed on 11 or 12 June.
[11] The respondent submitted that the reason for the delay given by the applicant was representational error. It was noted that upon receiving the jurisdictional objection to the s.365 application the applicant took a further eight days to file the s.773 application. It was put that the seeking of legal advice and ignorance of the legislation has been found in other cases not to warrant an exceptional circumstance 3.
[12] Further, it was submitted for the respondent that the applicant did not take any action to dispute the dismissal with the respondent directly and had filed the s.365 application 59 days after the termination took effect, discontinued that application and then filed the s.773 application. It was put that no other action appears to have been taken by the applicant to dispute the dismissal.
[13] It was argued that the respondent had been put to the expense of responding to both applications and that the applicant had little, or no, prospect of success in relation to the application given that she had not provided any evidence to the employer to suggest that the reason that she was late to work was because of illness or carer’s responsibilities. The respondent argued that neither reason could therefore have formed part of the decision to terminate the applicant’s employment.
[14] Finally, the respondent submitted that this matter could be distinguished from the facts in Trudgett on the basis that the legislative provisions at the time of the Trudgett decision were relatively new, whereas now they have been in existence for three years. In addition, the applicant in Trudgett had taken a range of steps to dispute her dismissal, which demonstrated her commitment to have the matter pursued, whereas the applicant in the current application did not lodge any application disputing her dismissal until 59 days after the dismissal took effect.
Consideration
[15] The relevant legislation is s.774 of the Fair Work Act 2009 (the Act), which provides:
774 Time for application
(1) An application under section 773 must be made:
(a) within 60 days after the employment was terminated; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the employee to dispute the termination; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[16] As the application in this matter was made 18 days after the period allowed under s.774(1)(a) of the Act I am required to decide whether a further period for the filing of the application should be allowed.
[17] I accept that the reason for the delay in this matter rests solely with the applicant’s representative who made the application under the wrong section of the Act. An application under s.365 of the Act, in very similar terms as the current application, was filed within the 60 day time limit. It was at the time the employer response to the s.365 application was filed (the correct date of filing was 12 June 2012) that the applicant’s representative was made aware that the employer was not a “national system employer” for the purposes of the Act.
[18] The applicant’s representative took further instructions from his client and, on 19 June, filed the s.773 application.
[19] The question to be determined is whether there are exceptional circumstances which would permit the tribunal to allow a further period for filing. I accept the submission put for the applicant that it is not necessary for there to be one “exceptional circumstance” but that a number of factors considered together, each one of which might not ordinarily be considered exceptional can, when taken together, amount to “exceptional circumstances” for the purposes of the provision.
[20] I am satisfied that exceptional circumstances exist in relation to this application given the following factors:
- The applicant relied on the advice of her legal representative when pursuing, in the first instance, a claim under s.365;
- An application under s.365, based on the same facts as the current application, was made within the 60 day time limit for lodgement;
- The s.365 application was not within the jurisdiction of Fair Work Australia by reason only that the employer was, along with a number of other named employers declared under a law of New South Wales, not a national system employer (with subsequent endorsement of the declaration made under the Act);
- A party would need to be aware of the existence of the declaration excluding the employer from the definition of “national system employer” in order to know that there was no jurisdiction for an application to be made under s.365.
[21] Not every occasion of representative error will amount to an exceptional circumstances for the purposes of s.774(2) such that additional time will be allowed for the filing of an application. In my view, in the particular circumstances of this case, the surrounding factors make the error such that the applicant should be permitted to pursue her application. The status of the employer as a non-national system employer was not so readily apparent that the jurisdictional bar was obvious. The employer was put on notice, within the time allowed under the Act, that the applicant was alleging that the termination of her employment was in breach of the Act. There was little additional delay between the jurisdictional bar being brought to the attention of the applicant’s representative and the withdrawal of the initial application and the lodgement of the application under s773. In this regard I note that the employer response to the first application was not filed within the 7 day period allowed under the rules of Fair Work Australia.
[22] I note that the applicant did not dispute her termination directly with her employer before lodging the applications. I do not consider this a particularly persuasive factor given that the applicant may well have required legal advice concerning her position. Although the employer claims prejudice caused by the delay, the overall delay was only 18 days, despite the need for a new application to be filed. The delay may have been shorter had the employer response been filed within time. I am not satisfied that the employer has suffered any real prejudice through the delay caused by representative error.
[23] So far as the merits of the application are concerned I am unable to conclude that the application is totally without merit. Neither party suggests that the criterion relating to fairness as between the applicant and others has any application.
[24] Taking all the circumstances of this matter into account I am satisfied that exceptional circumstances exist such that time should be extended for the filing of the application. I will extend the time for the filing of the application until 19 June 2012. An Order [PR528299] to this effect is issued separately.
[25] A certificate pursuant to s.777 of the Act will be issued.
COMMISSIONER
Appearances:
Mr D Mahendra, of Counsel, for the applicant.
Ms J Smith for the respondent.
Hearing details:
2012.
Canberra:
August, 6.
1 [2012] FWA 4966 at paragraph [23]
2 [2010] FWA 2235
3 Above n1 at paragraph [24]; Smith v Cook [2010] FWA 9835 at paragraph [35]
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