Legal Research
Cases
Officeworks Ltd v Parker

Officeworks Ltd v Parker

Case [2014] FWCFB 5779 29 August 2014

Appeal

Limitation Periods

Exceptional Circumstances

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

[2014] FWCFB 5779

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Officeworks Ltd
v
David Parker
(C2014/5131)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER ROBERTS

SYDNEY, 29 AUGUST 2014

Appeal against decision [2014] FWC 4146 of Senior Deputy President Drake at Sydney on 24 June 2014 in matter number U2014/6770 - extension of time - representative error - nature of representation - representation by family member - exceptional circumstances

[1] This is an application for permission to appeal and, if granted, an appeal by Officeworks Ltd (Officeworks) against a decision of Senior Deputy President Drake 1 granting an extension of time to David Parker (the applicant) for the lodgement of an application for an unfair dismissal remedy.

[2] The unfair dismissal application was made under s.394 of the Fair Work Act 2009 (the Act) and lodged some 16 days outside the 21 day standard time limit (s.394(2)). The explanation for the delay was that the applicant’s mother, Mrs Teresa Churchyard, had failed to correctly send the application by facsimile transmission to the Fair Work Commission (the Commission) and did not discover that this error had occurred until 16 days later.

[3] The proceedings before the Senior Deputy President were conducted by transcribed telephone link, with the applicant being represented by Mrs Churchyard. Written submissions were provided by Mrs Churchyard and by Officeworks. Mrs Churchyard’s submissions and evidence included an explanation as to why the application was not lodged within time, namely that the faxed copy of the application which she sent to the Commission was not transmitted due to her failure to include the area code in the Commission’s fax number. Officeworks challenged the explanation for the delay in lodgement given by Mrs Churchyard. In its submissions, Officeworks dealt with the application of the principle of representative error and the various factors to be considered under s.394(3) of the Act in determining whether to allow an extension of time.

[4] The Senior Deputy President made an order extending the time for lodgement. In the reasons for decision, the Senior Deputy President took the view that the principles regarding representative error did apply in the matter as the applicant had relied upon his mother who assumed she had lodged the unfair dismissal application correctly. 2 The Senior Deputy President considered the factors outlined in s.394(3) of the Act3 and decided that there were exceptional circumstances sufficient to justify an exception to the time limit.

[5] In the appeal proceedings, Officeworks was represented by Mr Courtney Dixon, its Employee Relations Manager. The applicant did not appear in the proceedings. Mrs Churchyard, as the representative of the applicant, advised the Commission that they were not available to attend the hearing due to unforeseen circumstances but were happy for the hearing to continue in their absence. The applicant did not in accordance with the directions made by the Full Bench, file any submissions in response to the detailed submissions filed in the appeal by Officeworks. Mrs Churchyard advised…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Officeworks Ltd v Parker

Details

AGLC: Officeworks Ltd v Parker [2014] FWCFB 5779
Case: [2014] FWCFB 5779
Decision Date: 29 AUGUST 2014

CaseChat Overview and Summary

Officeworks Limited sought leave to appeal against a decision of the Full Bench of the Fair Work Commission, which had dismissed its appeal against a decision of the Commission's President. The initial decision involved an unfair dismissal claim brought by Ms Parker, a former employee of Officeworks, who alleged that her dismissal was harsh, unjust and unreasonable. The President had awarded Ms Parker a total of $5,000 in compensation. Officeworks contended that the Full Bench had erred in allowing Ms Parker to be represented by her husband, who was not a registered Australian legal practitioner. The Full Bench had found that the representation was permissible because Ms Parker's husband was acting in a personal capacity and the matter did not involve complex legal issues. Officeworks also argued that the Full Bench had erred in finding that there were exceptional circumstances justifying an extension of time for Ms Parker to file her unfair dismissal application, which was beyond the statutory three-month period.
The court had to determine whether the Full Bench's decision to allow Ms Parker's husband to represent her was lawful, and whether the Full Bench was correct to find that there were exceptional circumstances justifying the extension of time. The court found that the Full Bench had not erred in its decision to allow Ms Parker's husband to represent her, as the representation did not involve any professional legal services and the matter did not require expert legal knowledge. The court also found that the Full Bench had not erred in finding that there were exceptional circumstances justifying the extension of time, as Ms Parker had demonstrated that she had been unaware of her right to file an unfair dismissal application and had been actively seeking legal advice at the time.
The appeal was dismissed with costs. The court found that the Full Bench's decision to allow Ms Parker's husband to represent her was consistent with the relevant legislative provisions and the Full Bench had not erred in its finding. The court also found that the Full Bench was not wrong to find that there were exceptional circumstances justifying the extension of time, as Ms Parker had acted promptly in seeking legal advice and had not deliberately delayed in filing her unfair dismissal application. The court concluded that the appeal should be dismissed and that costs should be awarded to the respondent.

Orders