Officeworks Ltd v Parker
[2014] FWCFB 5779
•29 AUGUST 2014
| [2014] FWCFB 5779 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
David Parker
(C2014/5131)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT | 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 that there was no other information to provide apart from the evidence previously provided to the Senior Deputy President.
Appeal Principles
[6] An appeal under s.604 of the Act involves an appeal by way of rehearing, with the powers of the Full Bench being exercisable only if there is error on the part of the primary decision- maker. 4
[7] The majority of the High Court explained in the following passage how error may be identified where a discretionary decision is involved:
“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process (See Norbis v Norbis (1986) 161 CLR 513 at 518-519). And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal.” 5
[8] The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King 6in these terms:
“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so”; 7
and
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion...” 8
[9] An appeal under s.604 of the Act may only be pursued with the permission of the Commission. Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so. However, there is a note following the subsection to the effect that this does not apply in relation to an application to appeal from an unfair dismissal decision. 9
[10] The effect of s.400 is twofold. Firstly, the Commission may only grant permission to appeal from an unfair dismissal decision where it considers it is in the public interest to do so (s.400(1)). 10 Secondly, an appeal of an unfair dismissal decision, to the extent that it is an appeal on a question of fact, may only be made on the ground that the decision involved a significant error of fact (s.400(2)).
Consideration
[11] We have considered the submissions of Officeworks and the applicant in the appeal and the evidence which was before the Senior Deputy President. We have come to the conclusion that permission to appeal should be granted in this matter and that the appeal should be allowed. We have reached these conclusions for the following reasons.
[12] There are 3 main issues raised by the appeal. These relate to the application of the principles of representative error, the evidence relating to the sending of the unfair dismissal application by facsimile transmission and the finding with regard to “exceptional circumstances” within the meaning of s.394(3) of the Act.
(a) Representative error
[13] The general approach of the Commission where representative error is relied upon to explain the late lodgement of an application was described by a Full Bench in Robinson v Interstate Transport Pty Ltd 11as follows:
“[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. 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.
[25] The approach in Clark’s Case was summarised in Davidson’s Case as follows:
“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i) 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.
(ii) 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.
(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 carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) 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.”
(references omitted)
[14] We consider that this is also the approach which should be adopted in relation to s.394(3) of the Act and the late lodgement of unfair dismissal applications. Representative error may be a sufficient reason to allow a further period for an application to be made. However all the factors in s.394(3) must be taken into account in determining whether there are exceptional circumstances that warrant extending the time limit.
[15] The approach which has been adopted by the Commission in relation to representative error applies principles which have been applied in the courts in relation to delays or negligence by solicitors in making applications or instituting proceedings within time limits.
[16] In the circumstances of the present matter we consider that, in deciding whether or not representative error will constitute an acceptable explanation for delay in the lodgement of the application, consideration should be given to a variety of factors including the extent to which the applicant’s own conduct contributed to the delay and the nature of the representation concerned.
[17] Under the Act, there is no general limitation as to whom a party might be represented by in proceedings before the Commission. 12 However a person may only be represented by a lawyer or paid agent in a matter before the Commission, including by making an application or submission on behalf of the person, with the permission of the Commission.13 In general, the legislative policy is that persons will act on their own behalf in making applications and submissions to the Commission. In so doing, the person may seek the advice or support of other persons. As the Senior Deputy President observed in relation to unfair dismissal matters in her reasons for decision:
“[11] Applicants are regularly represented before the Commission by a variety of persons who are not legally qualified or even experienced in industrial law. Solicitors do not have a right to appear in the Commission. Permission to appear must be specifically granted.
[12] Support persons who assist applicants to lodge their applications and appear before the Commission may be family members, friends and even sometimes social workers or Church support persons.”
[18] In circumstances where “representative error” is relied upon in Commission proceedings as an excuse or explanation for the failure to meet time limits, it is appropriate to have regard to the professional qualifications and expertise of the representative concerned. This will enable an assessment to be made as to the extent to which it was reasonable for a party to rely upon the skills and expertise of the representative in acting on their behalf. Clearly where the representative is a lawyer, an experienced industrial advocate, or an officer or employee of an organisation of employers or employees, it might more readily be concluded that representative error provides an acceptable explanation for the delay and such error should not be blamed upon the party concerned. However where the representative chosen has no experience or expertise in the area of legal and employment matters, there might be less justification for reliance on that person and the responsibility for delays or other errors might be attributed to the party concerned. 14
[19] In general, representative error may be more readily accepted as an explanation or excuse where the person relied upon has professional qualifications or expertise in dealing with legal and employment matters than where reliance is placed on a family member or friend.
[20] In the present case the applicant relied upon his mother to lodge his unfair dismissal application and in representing him in the proceedings before the Senior Deputy President. There was a suggestion that Mrs Churchyard had “some experience with human resource management” 15 but no evidence or advice as to the extent of her experience or expertise in relation to the conduct of matters in the Commission. Furthermore, there was no evidence provided in the proceedings before the Senior Deputy President as to any actions taken by the applicant on his own behalf in lodging the s.394 application or ensuring that it was properly lodged with the Commission.
[21] In these circumstances, we do not consider that representative error would provide an acceptable explanation for the late lodgement of the application. We consider that to the extent that the Senior Deputy President relied upon and focussed on the actions of Mrs Churchyard and did not consider the actions and conduct of the applicant there was a failure to consider all the relevant factors relating to the delay in the lodgement of the application.
(b) Evidence relating to the sending of the application
[22] There was limited evidence provided by Mrs Churchyard in the proceedings before the Senior Deputy President in relation to the late lodgement of the s.394 application. The evidence is set out in the Senior Deputy President’s reasons as follows:
“[7] Mrs Churchyard’s explanation for the initial failure of the lodgement of the application on 7 April 2014 is set out below:
‘Upon investigation of why the fax did not transit on 7th April I discovered that,
1. The fax number I dialled did not contain the area code (02)
2. I had copied the number directly from the website which did not contain the area code.
3. As the submission had appeared to have been sent, I assumed that it had.
4. The fax machine that was used in my husband’s business machine. I am including the fax reports regarding this matter.
5. It is noted that on the 7.04.2014 there is no phone number as to where the fax was directed.
6. All entries on the report relate to my husband’s business with the exception of an entry on the 18th March. This is where I have used the fax to schedule an appt at Concorde Hospital. The same error was made regarding the area code. I was unaware of this also until I contacted the Hospital to enquire as to why I had not received any correspondence. This can be verified on the following fax report of the 24th April.’”
[23] There was no evidence given in the proceedings by the applicant himself.
[24] In the proceedings before the Senior Deputy President, Officeworks challenged Mrs Churchyard’s explanation. In particular, it identified in written and oral submissions a number of facts relating to the fax machine’s Activity Report which meant that the 21:07 record on 7 April could not have been the facsimile activity that Mrs Churchyard claimed. These included that:
● no number had been entered into the fax machine at that time;
● no confirmation or error receipt was produced;
● the fax activity at 21:07 on 7 April was for a one page transmission and the unfair dismissal application sent on 23 April was five pages in length; and
● the “Auto RX” mode recorded on the fax activity report at 21:07 on 7 April relates to a fax activity received by the fax machine rather than a transmission sent.
[25] These matters raised considerable doubts to the explanation given by Mrs Churchyard for the failure to lodge the s.394 application within time. The Senior Deputy President did not refer to or deal with these matters in her reasons for decision. However it was concluded as follows:
“[18] Mr Parker’s explanation for delay is an error in lodgement occasioned by his mother’s faulty entry of a facsimile number. I have no reason to doubt the veracity of the explanation provided by Mrs Churchyard. I accept the explanation.”
[26] The Senior Deputy President also accepted that the applicant attempted to lodge a unfair dismissal application within time. 16
[27] We consider that it was not reasonably open on the evidence and material for such findings to be made. The failure to consider the submissions of Officeworks and the making of findings based on evidence in circumstances where the veracity of that evidence was persuasively challenged amounted to significant errors in the decision-making process.
(c) Exceptional circumstances
[28] The Commission is given a discretion under s.394(3) of the Act to extend the time period for making an unfair dismissal application if it is satisfied that there are exceptional circumstances.
[29] In Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers 17 a Full Bench considered the meaning to be given to “exceptional circumstances” in the context of the late lodgement of unfair dismissal applications:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[30] The Full Bench in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, in a decision involving similar language in s.366(2) of the Act, stated:
“[13] 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.
[14] 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.
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”
[31] In Ozsoy v Monstamac Industries 18 Gostencnik DP referred to the purpose of the time limits in s.394 of the Act and the need for “exceptional circumstances” before any consideration of discretion by the Commission:
“[29] The statutory time limitation applicable to the exercise of a person’s right to make an unfair dismissal remedy application that is in place, is an expression of Parliament’s intention that rights must be exercised promptly within a particular time so as to bring about certainty. Time limitations seek to balance one person’s right to bring an action, against another person’s right to know with certainty that questions about actions that they have taken will be agitated within a particular period, otherwise that right is lost.
[30] Applications seeking relief from unfair dismissal must be made within 21 days after the dismissal takes effect. Only in exceptional circumstances should the Commission consider allowing a further period.”
[32] In the present matter the Senior Deputy President found that the explanation for the delay of the applicant in lodging the unfair dismissal application was occasioned by his mother’s faulty entry of a facsimile number. Whilst all the factors in s.394(3) need to be considered in determining whether there are “exceptional circumstances”, we do not consider that incompetence in sending a facsimile transmission is of itself such an unusual or special occurrence as to support a conclusion that there were exceptional circumstances in the present matter.
Conclusion
[33] Having regard to the above matters, we consider that there are a number of errors of law and significant errors of fact in relation to the decision made to extend the time for the lodgement of the applicant’s unfair dismissal remedy. We have therefore decided to grant permission to appeal in this matter, to allow the appeal and to set aside the order made by the Senior Deputy President.
[34] We have also reached the conclusion, having regard to the evidence and submissions before the Commission and the considerations set out above, that an appropriate case for an extension of time for the lodgement of the unfair dismissal application has not been made out. Accordingly the application under s.394(3) is refused.
SENIOR DEPUTY PRESIDENT
Appearances:
C Dixon on behalf of the appellant.
There was no appearance by or on behalf of David Parker.
Hearing details:
2014
Sydney:
20 August
1 Parker v Officeworks Ltd[2014] FWC 4146.
2 Ibid at [10] - [13].
3 Ibid at [18] - [23].
4 See Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 205.
5 Ibid at [21].
6 (1936) 55 CLR 499
7 Ibid at 505.
8 Ibid at 504-505.
9 See s.400 of the Act.
10 The way in which the public interest requirement in s.400(1) may be attracted has been described as follows in GlaxoSmithKline Australia Pty Ltd v Colin Makin[2010] FWAFB 5343 at [27]:
“...the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”
11 (2011) 211 IR 347 at 351-352.
12 Cf. Section 42 of the Workplace Relations Act 1996 (Cth). Note that the provisions in the Fair Work Act 2009 relating to private conferences allow the Commission to restrict persons who might attend and participate in such conferences (see ss. 368, 374, 398, 592 and 776).
13 See s.596 of the Act and note the exception provided in s.596(4).
14 See Wilson v Allworks (WA) Pty Ltd[2013] FWC 4707 at [54] - [58] and Cliff v Allaro Homes[2013] FWC 1794 at [27].
15 Transcript of proceedings before Senior Deputy President Drake, 30 May 2014, PN35.
16 Parker v Officeworks Ltd[2014] FWC 4146 at [20].
17 [2010] FWAFB 7251.
18 [2014] FWC 479 at [29].
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