Paul Johnston v East Gippsland Real Estate Pty Ltd T/A LJ Hooker Lakes Entrance

[2019] FWC 5483

[2019] FWC 5483

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Johnston
v
East Gippsland Real Estate Pty Ltd T/A LJ Hooker Lakes Entrance
(U2019/3969)

COMMISSIONER YILMAZ MELBOURNE, 9 AUGUST 2019

Application for an unfair dismissal remedy – application lodged out of time – exceptional circumstances- agent filed Notice of Discontinuance of claim lodged on time – application granted.

Introduction and background

[1] This decision concerns a jurisdictional objection raised by East Gippsland Real Estate Pty Ltd T/A LJ Hooker Lakes Entrance (Respondent) to an application by Mr Paul Johnston (Applicant) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] The Applicant was employed by the Respondent as a Sales Consultant on 1 October 2013 until his dismissal on 23 January 2019. He claims that his dismissal was unfair, and the reason given of redundancy was not genuine. Further, the Applicant argues that there was not a valid reason for dismissal.

[3] In early February 2019, the Applicant engaged Unfair Dismissals Australia as his representative and on 13 February 2019, Unfair Dismissals Australia lodged an unfair dismissal claim on the Applicant’s behalf (first application), which was on time. On 29 March 2019, Unfair Dismissals Australia filed a Form F50 - Notice of Discontinuance (Form F50) in relation to the first application. The Applicant alleges that Unfair Dismissals Australia filed the Form F50 without his express instructions or knowledge.

[4] On 3 April 2019, the Applicant instructed McDonald Murholme Solicitors (McDonald Murholme) to file a F53 – Notice of Representative Commencing to Act (Form F53) and a further unfair dismissal application was subsequently lodged on 8 April 2019 (second application). The Applicant is seeking an extension of time for the lodgement of his second application.

[5] The Respondent raises two jurisdictional points: that the application is lodged more than 21 days after the dismissal took effect and that the termination is a genuine redundancy.

The Applicant’s submissions

[6] The Applicant was dismissed on 23 January 2019, and on 24 January 2019, the Applicant received an email confirming the termination. The letter attached to the email stated that the reason for the termination was redundancy. 1 The Applicant, however, contends that the reason was not a genuine redundancy and “it was the first time the redundancy of the Applicant’s position had been mentioned to him”2.

[7] The first application was filed on 13 February 2019 by Unfair Dismissals Australia on behalf of the Applicant, and the parties attended a conciliation conference on 26 March 2019. The matter was not resolved at conference.

[8] It is submitted by the Applicant that following the unsuccessful resolution of the matter at the conciliation conference, Ms Beth of Unfair Dismissals Australia requested that the Applicant inform her if he intended to accept the Respondent’s offer to settle by Friday 29 March 2019. 3

[9] The Applicant submits he was dissatisfied by the representation of Unfair Dismissals Australia and on 28 March 2019, he approached McDonald Murholme to be his legal representative in the matter against the Respondent. 4

[10] On the morning of 29 March 2019, the Applicant sent an email to Unfair Dismissals Australia informing them “I am not going to proceed any further with Unfair Dismissals Australia regarding the matter against LJ Hooker. You are welcome to phone me” 5.

[11] It is submitted that Unfair Dismissals Australia did not make any contact with the Applicant in relation to the claim prior to or after filing the Form F50.

[12] On 3 April 2019, when McDonald Murholme filed a Form F53 with the Commission in relation to the first application, it was informed that Unfair Dismissals Australia had discontinued the Applicant’s claim on 29 March 2019. A copy of the email and Form F50 filed by Unfair Dismissals Australia signed by Mr Daniel Kozijevic was submitted with the Applicant’s outline of submissions. 6

[13] The Applicant submits that he was unaware that Unfair Dismissals Australia had discontinued his matter and he first learned of the discontinuance through his new representative McDonald Murholme on 3 April 2019. He asserts that he did not instruct Unfair Dismissals Australia to discontinue his claim.

[14] McDonald Murholme filed the second application on 8 April 2019, and it is alleged that the Notice of Discontinuance of the first application could not be overturned. 7

[15] The Applicant argues that Unfair Dismissals Australia may have mistakenly interpreted the Applicant’s email advising them that he no longer intends that he is represented by them. Accordingly, the Applicant argues that the discontinuance of the first application was representative error.

[16] The Applicant submits that had Unfair Dismissals Australia not filed a Form F50, the first application would be on foot and there would be no reason for the extension of time matter.

The Respondent’s submissions

[17] The Respondent submits that the first claim was filed on time and ended with the filing of the Form F50 dated 29 March 2019. The Respondent asserts that the current claim was filed 54 days out of time.

[18] The Respondent argues that the Applicant did not seek to set aside or withdraw the Notice of Discontinuance, 8 nor present evidence from Unfair Dismissals Australia relating to their understanding of the Applicant’s instructions or the nature of their retainer to the extent that it addresses whether the discontinuance of the matter was within the scope of their authorisation.9 The Respondent contends that the filing of the Form F50 could not be construed as representative error based on the Applicant’s email and failure to call evidence from the former representative.

[19] The Respondent further advances that even if there was representative error in the filing of the Form F50, it was not representative error in the filing of the second claim. 10 The Respondent argues that in considering the extension of time issue, the Commission’s focus should be on the late filing of the second application and not the discontinuance of the first application.

Consideration

[20] On 14 June 2019, I convened a hearing to determine whether to allow an extension of time for the lodgement of the application for unfair dismissal.

[21] It was not contested that the Applicant was dismissed from his employment on 23 January 2019; that the first claim was filed on time on 13 February 2019; a Notice of Discontinuance was filed by Unfair Dismissals Australia on 29 March 2019 and the second claim was filed on 8 April 2019.

[22] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3).

[23] The second application was filed 54 days out of time.

[24] However, s.394(3) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

[25] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 11 (Nulty) where it was held that:

“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 regular occurrence, even though it can be a on 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.” 12

[26] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.394(3).

The reason for the delay

[27] The Applicant argues that the only reason for the delay in filing this application is that the former representative made an error by filing a Form F50 without authorisation in relation to the first application. The Applicant distinguishes the facts from Harland v Holcim (Australia) Pty Ltd 13, where it was held that there was insufficient evidence to demonstrate that the Applicant’s former legal representatives acted in error when filing a notice of discontinuance on the first application. The Applicant submits that in this case, the Applicant’s former representative filed a Form F50 on the day it received the email from the Applicant stating that “I am not going to proceed any further with Unfair Dismissals Australia regarding the matter against LJ Hooker”14.

[28] In this matter the Applicant presented witness evidence of his intentions regarding his email, the wording in the email was expressed differently from Harland v Holcim (Australia) Pty Ltd and his appointment with McDonald Murholme on 3 April 2019 demonstrated his intention not to discontinue proceedings. Further, the Applicant’s new representative filed a new application within three business days of learning that the former representative discontinued the first application.

[29] The Respondent submits the delay is not due to representative error and if the Applicant has a dispute with the former representative there are other avenues for the Applicant to pursue, rather than for the Commission to determine an extension of time application. The Respondent further claims that even if such an error arose, it did not cause any delay in the lodgement of the second application, instead it caused the earlier application to come to an end.

[30] The approach taken by the Commission in matters relating to representative error is to distinguish the conduct of the Applicant from the representative. 15 In this matter the Applicant did not conduct himself in any way that the blame for the delay can be attributed. In my view, the Applicant’s email makes it clear that he did not wish to proceed with Unfair Dismissals Australia as his representative. The email in my opinion cannot be interpreted as the Applicant intending to not proceed with his application against the Respondent.

[31] The principles referred to by the Full Bench in Davidson v Aboriginal and Islander Child Care Agency 16, 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.

(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.” 17

[32] I have formed the view that the Applicant acted swiftly to address his concerns regarding the representation in his matter, and on becoming aware of the Form F50 filed by his former representative, instructed his new representative to file a new application.

[33] Unfair Dismissals Australia is familiar with the unfair dismissals jurisdiction and holds itself as a paid agent competent to represent in such matters. The inference that the former representative filed a Form F50 on the assumption they may have interpreted the email as such is immaterial. The Commission has over time granted an extension of time and deemed it exceptional circumstances, where a lawyer or paid agent as a representative has erred.

[34] The Applicant obtained and relied on the advice of his former representative in filing the application and at the conciliation conference, but was not satisfied with the conduct of his representative at the conference. Unfair Dismissals Australia promotes itself as a team of industrial relations specialists that practice in the area of unfair dismissals and achieve results for applicants.

[35] I consider it a failure by Unfair Dismissals Australia to file the Form F50 based on the email it received without first confirming the intentions of the Applicant had it misconstrued the instructions to discontinue.

[36] The Applicant gave sworn witness evidence that Unfair Dismissals Australia were instructed that he intended to pursue his application to finality, and forewarned his representative that he was sending through an email advising that he no longer wished to be represented by them and would be seeking a representative. 18 While he did not file his Terms of Engagement with Unfair Dismissals Australia, I do not consider it of such weight and I have no reason to not accept his witness evidence. Further, I have accepted the email evidence from the Applicant to the first representative.

[37] Having considered the evidence before me and adopting the above approach, I am satisfied that the Applicant has made out an acceptable explanation of the reason for the delay in lodging the application and the delay in the filing of the second application cannot be attributed to him.

[38] This weighs in favour of a finding that there are exceptional circumstances.

[39] Nevertheless, all factors in s.394 must be taken into account in determining whether there are exceptional circumstances.

Whether the person first became aware of the dismissal after it has taken effect

[40] The Applicant was aware of his dismissal when it took effect and consequently, filed an unfair dismissal claim within the prescribed period. The issue pertaining to the extension relates to the period since which includes:

•  A period relating to a conciliation conference where the parties did not settle

•  Filing of a Notice of Representative Commencing to Act

•  Receiving information from the Commission that Unfair Dismissals Australia had discontinued the matter, and

•  Filing of a fresh application three business days later (five calendar days)

[41] This consideration is under the circumstances neutral.

Action taken to dispute the dismissal

[42] The Applicant acted to dispute the dismissal and the Respondent was aware of the Applicant’s dispute as it had responded to the first application, and attended the conciliation conference.

[43] The Respondent submits the first application was abandoned and the second application is an attempt to dispute the dismissal a second time.

[44] The Respondent engaged in the conciliation conference with an offer to settle the application, and it appears from the Applicant’s evidence that the offer was on the table post conference. It is unusual and unexpected that negotiations would end abruptly with a Notice of Discontinuance.

[45] The manner in which the first application was discontinued in my opinion constitutes exceptional circumstances and this consideration weighs in favour of an extension of time.

Prejudice to the employer

[46] While I accept the submissions of the Respondent that extension of time proceedings are an inconvenience and expense, it is also an added inconvenience and expense to the Applicant.

[47] On the evidence, while both parties are inconvenienced and have been subject to the expense relating to extension of time proceedings, greater prejudice is to the Applicant where he is denied natural justice in disputing his dismissal due to the actions of his first representative.

[48] The delay in dealing with the dispute over the Applicant’s dismissal is not all attributable to the filing of the second application.

[49] During the hearing the Applicant’s representative offered to do away with a second conciliation conference to address the inconvenience and cost incurred by both parties. 19

[50] I consider this consideration to weigh in favour of the Applicant.

Merits of the application

[51] While materials were filed relating to the merits of the application, the materials were not tested.

[52] It is alleged by the Respondent that the Applicant was made redundant. The Applicant disputes the reason as the role of sales consultant is still required and it is submitted that the Respondent employed additional consultants. There may be a further jurisdictional argument concerning redundancy.

[53] It is disputed between the parties whether the Applicant was informed of the reason prior to dismissal or an opportunity to respond to the reason given for the dismissal.

[54] There may be a reasonable case should the evidence of the Applicant support his submissions.

[55] I consider the merits of the case are at least arguable and therefore weigh in favour of the Applicant.

Fairness as between the person and other persons in a similar position

[56] The Applicant submits that the situation is uncommon and has not affected any other employee of the Respondent. Further the Applicant did not draw my attention to any other case that would be relevant to the circumstances before me.

[57] The Respondent submits compliance with the 21 day limit applies to all employees and to grant an extension would encourage potential applications. 20

[58] As neither party could draw my attention to any other persons or cases similar, I consider this consideration to be a neutral factor.

Conclusion

[59] The Respondent submits that the new application is a second go at the same alleged unfair dismissal. Further the Respondent submits the Applicant failed to take action to reinstate the first application.

[60] Firstly, it is relevant that the Applicant’s representative filed the first application and pursuant to s.588 could discontinue the matter. No agreement was reached at the conference, nor was the matter considered and determined, therefore I consider that this application is not a case of double dipping or a “second go at the cherry” 21 as described by the Respondent.

[61] Secondly, the question arises whether the Applicant should have pursued an application to revoke the Notice of Discontinuance. The Full Bench in Narayan v MW Engineers Pty Ltd 22 considered the powers of the Commission to set aside a Notice of Discontinuance and distinguished earlier powers. The Bench concluded that s.586 does not empower the Commission to determine an application to set aside a Notice of Discontinuance.23 Further, consistent with the Full Bench decision the application for an extension of time is properly before the Commission.

[62] Thirdly, I consider it relevant whether the Applicant’s representative acted on authority. I am persuaded by the Applicant’s witness evidence that Unfair Dismissals Australia knew he was dissatisfied with their representation, that he intended to pursue his claim, and that he also intended to obtain new representation. What is not clear is whether the first representative acted in error or deliberately, either way the action of the representative caused an error in the discontinuation of the first application.

[63] In consideration of the time limit of 21 days as prescribed by the Act, the limit is applicable and should be complied with. However, the Act recognises that there may be exceptional circumstances warranting an extension of time.

[64] In this instance I need to be satisfied that there are exceptional circumstances to warrant a further period pursuant to s.394(3). To extend the statutory time frame is a strict test and rests on the circumstances of the case.

[65] In this case, the circumstances are unusual and extraordinary. While the Respondent submits that the second application is just out of time, it is out of time due to the actions of the first representative of the Applicant that filed a Form F50 without the express and clear instructions of the Applicant. There is no evidence of conduct by the Applicant which led to the delay in filing the second application, and further the Applicant is blameless in the filing of the discontinuance by Unfair Dismissals Australia.

[66] The Applicant should not be prejudiced due to the apparent carelessness of Unfair Dismissals Australia.

[67] Having considered the evidence and submissions against each of the considerations in s.394(3), I am satisfied that on balance there are exceptional circumstances for the extension of time to file the application for an unfair dismissal remedy.

[68] An order to this effect is issued separately in PR711095.

COMMISSIONER

Appearances:

Mr A Jewell for the Applicant

Mr R A Millar of Counsel for the Respondent

Hearing details:

2019

Melbourne (telephone hearing)

14 June.

Printed by authority of the Commonwealth Government Printer

PR711094

 1   Witness statement of Mr Paul Johnston at PJ-1.

 2 Applicant’s Outline of Submissions filed 29 May 2019 at [5].

 3 Witness statement of Mr Paul Johnston at [8].

 4 Ibid at [9].

 5   Ibid at [10]; PJ-2.

 6   Ibid at PJ-5.

 7   Applicant’s oral submissions.

 8   Respondent’s Outline of Submissions filed 5 June 2019 at [4]; Respondent’s oral submissions.

 9 Ibid at [5].

 10 Ibid at [7].

 11   [2011] FWAFB 975.

 12 Ibid at [13].

 13   [2017] FWC 5308.

 14   Witness statement of Mr Paul Johnston at [10]; PJ-2.

 15   McConnell v A & PM Fornataro (t/a Tony’s Plumbing Service)[2011] FWAFB 466 citing Davidson v Aboriginal and Islander Child Care Agency (AIRCFB, Ross VP, Watson SDP, Eames C, 12 May 1998) Print Q0784.

 16   Davidson v Aboriginal and Islander Child Care Agency (AIRCFB, Ross VP, Watson SDP, Eames C, 12 May 1998) Print Q0784.

 17   Ibid at pg 6.

 18   Examination in-chief and cross-examination of Mr Paul Johnston.

 19   Applicant’s oral submissions.

 20   Respondent’s oral submissions.

 21   Ibid.

 22   [2013] FWCFB 2530.

 23 Ibid at [30].