Paul Ellis v Linfox Pty Ltd

[2015] FWC 6392

[2015] FWC 6392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Ellis
v
Linfox Pty Ltd
(U2015/10760)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] Mr Paul Ellis alleged that the termination of his employment by Linfox Pty Ltd on 13 July 2015 was unfair.

[2] His unfair dismissal application lodged on 5 August 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

[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." [Endnotes not reproduced]

the reason for the delay;

[5] Mr Ellis gave evidence that Mr David Whitaker, who was an organizer with the TWU, stated at the termination meeting that he was going to make an unfair dismissal application on his behalf. There is a dispute about whether Mr Whitaker said this during the meeting but it is not disputed that Mr Ellis left that meeting with the understanding that Mr Whitaker would lodge his unfair dismissal application. Mr Ellis said that he was not aware of the 21 day time limit but he assumed there was some urgency to sort the matter out as soon as possible so in the week following his dismissal he rang Mr Whitaker to make sure he had lodged the application and Mr Whitaker told him that he was attending to the matter. He then called Mr Whitaker about three times in the next two weeks to check if he had lodged the claim. Mr Whitaker did not return his calls. It was his evidence that he was relying on the TWU to deal with his application in a professional and timely manner. After Mr Ellis was advised by the Fair Work Commission that his application had been lodged late, he rang Mr Whitaker who told him he had neglected to lodge his application in time.

[6] Mr Ellis relies on representational error to explain the delay in lodging his application. Mr George Katsifolis for Linfox submitted that there was no evidence called by Mr Ellis from Mr Whitaker to explain the reasons for the failure to lodge the application. This submission misunderstands the matter to be determined. It is the conduct of Mr Ellis that the Commission is concerned with.

[7] In Robinson v Interstate Transport Pty Ltd, the Full Bench distilled the principles to be considered when dealing with representational error. 2

“[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."”

[8] In this case I consider that Mr Ellis has a reasonable explanation for the delay. He was entitled to rely upon his representative to lodge his application. He did not sit on his hands but followed up with his representative and it was his uncontested evidence that he was assured the matter was in hand. Whatever reasons Mr Whitaker had for not lodging the application Mr Ellis was blameless. This weighs in favour of a finding that there are exceptional circumstances.

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

[9] Mr Ellis was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

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

[10] There is a dispute about what was said by Mr Whitaker after he and Mr Ellis were advised of Mr Ellis’ dismissal. Mr Ellis said that Mr Whitaker said that they would be filing an unfair dismissal claim. Mr Daniel Franchina, a HR advisor, and Mr Melchior De Beer, the transport manager, denied this was said. Mr Franchina said Mr Whitaker said that they would consider their options. Mr De Beer agreed with Mr Ellis’ evidence that someone from Linfox said “you do what you have to do.” It is clear from that statement that Linfox knew on the date the dismissal occurred that Mr Ellis was not simply going to accept the dismissal. However apart from lodging the application Mr Ellis did not take any other steps to dispute his dismissal because he relied upon Mr Whitaker.

[11] I consider that this criterion is a neutral consideration in assessing whether there are exceptional circumstances.

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

[12] No submissions or evidence was called that any prejudice would be caused by the delay. Linfox were critical of the failure of the TWU to make contact with them prior to lodging the application as is their normal practice as this had enabled the parties in the past to determine if the matter could be resolved without the need to lodge an application. I accept this concern but the failure of the TWU to contact Linfox was not due to any fault of Mr Ellis. The lack of prejudice to the employer weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[13] Mr Ellis was dismissed for misconduct. Linfox did not submit any evidence about the merits of the dismissal choosing to make submissions as to why the dismissal was fair. I am not able to make any assessment of the merits as there is a dispute between the parties about whether the conduct was a serious safety breach. In those circumstances I find that Mr Ellis has an arguable case that his dismissal was unfair. This weighs in favour of a finding that there are exceptional circumstances.

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

[14] Linfox submitted that if Mr Ellis was given an extension of time he would be treated differently to other former employees’ applications made out of time that have not been granted.

[15] No evidence was called to support this submission. Mr Ellis submitted that there were no other employees of Linfox who were in a similar position to Mr Ellis.

[16] I consider that this criterion is neutral.

Conclusion

[17] I consider that there are exceptional circumstances. Mr Ellis has a reasonable explanation for the delay in lodging his application. His claim that his dismissal was unfair is not unarguable and while he had the full 21 days to lodge his application he took reasonable steps to ensure it was lodged. There is no prejudice to the employer and the other criteria are neutral. Having found that there are exceptional circumstances I have decided to exercise my discretion to grant Mr Ellis an extension of time. The delay was short and Mr Ellis should not be precluded from having his claim dealt with due to the error of his representative.

[18] I therefore extend the time for Mr Ellis to lodge his application to 5 August 2015. Mr Ellis’ unfair dismissal application will now be referred to conciliation.

DEPUTY PRESIDENT

Appearances:

A. Dzieciol for the Applicant.

G. Katsifolis for the Respondent.

Hearing details:

2015.

Melbourne and Perth (by telephone link):

September 14.

 1   [2011] FWAFB 975

 2   [2011] FWAFB 2728

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