Paula Cooper v Keppel Community Care Association Inc
[2010] FWA 7680
•4 OCTOBER 2010
[2010] FWA 7680 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Paula Cooper
v
Keppel Community Care Association Inc
(U2010/9037)
DEPUTY PRESIDENT SWAN | MACKAY, 4 OCTOBER 2010 |
[1] This application before the Tribunal is made pursuant to s. 394 of the Fair Work Act 2009 (the Act) by Ms Paula Cooper [the applicant] requesting an extension of time in which to lodge her unfair dismissal claim. Ms Cooper was represented by the Australian Workers’ Union of Employees [the Union].
[2] The application is opposed by Keppel Community Care Association Inc [the respondent], represented by the Queensland Chamber of Commerce and Industry.
[3] The applicant says that exceptional circumstances prevented her application from being received by Fair Work Australia (FWA) within the prescribed period of 14 days from the date of the termination of her employment by the respondent on 5 May 2010. The application was received by FWA on 21 May 2010.
THE LEGISLATION
SECTION 394 APPLICATION FOR UNFAIR DISMISSAL REMEDY
...
394(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
394(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
Re (a) ‘the reason for the delay’
[4] The applicant, who lives in Mackay, had signed her unfair dismissal application on 14 May 2010.
[5] On that date, her application was not sent directly to the Union’s Brisbane office, but posted to the Union’s district office in Townsville, as was the practice for this Union. It appears that the delay in the application being filed with FWA within the fourteen day time period occurred between the Townsville Union office receiving the application and forwarding the material on to its Brisbane office. The Townsville Union office sent the documents express post to its Brisbane office on 20 May 2010.
[6] On 21 May 2010, the documents were received by the Brisbane office of the Union and then by Fair Work Australia. At that time, the application was two days out of time.
[7] At some point, in the Brisbane Union office another application for unfair dismissal remedy, for the same applicant, was drafted as of 28 may 2010. This application did not proceed before FWA.
[8] The applicant says that the delay was caused during the progression of the application between the Townsville Union office and the Brisbane Union office.
[9] The applicant said the delay was most unusual for the Union as matters such as this were always dealt with expeditiously. However, an administrative error occurred and for this, the applicant should not be denied an opportunity to litigate her claim. The time period of fourteen days for lodgement of an unfair dismissal claim might be difficult for large organisations with offices situated throughout the State, however, the time limit must be respected unless exceptional circumstance dictate otherwise.
[10] The respondent claimed that because the applicant had not sought to challenge her unfair dismissal until nine days after the event, she had not allowed herself sufficient time in which to have all of her material lodged with Fair Work Australia. Because the applicant had been advised of the internal processes which had to be followed by the Union in progressing her application, the respondent says that she should have made her application earlier so as to allow sufficient time for the material to be progressed through normal postal services . 1
[11] The respondent claimed that there was no obligation on the applicant’s part to have her Union file her application – she could have done this herself. Further, the applicant did not proactively pursue the progression of the application.
[12] In my view, the question is whether the applicant should wear the consequences for this delay. This should be considered in conjunction with all of the criteria required to be considered by the Tribunal under s.394 of the Act.
Re (b) ‘whether the person first became aware of the dismissal after it had taken effect’
[13] There were no submissions made around this point .
Re (c) ‘any action taken by the person to dispute the dismissal’
[14] The only evidence is that the applicant signed her application for an unfair dismissal remedy nine days after her dismissal. There is no other evidence to show whether or not the respondent was aware of this action.
Re (d) ‘prejudice to the employer (including prejudice caused by the delay)’
[15] In his statement Mr Quinn stated that Keppel Community Care is almost entirely government funded. “As a result we have to be stringent with our funds and ensure that they are spent on the support of people with disabilities, and that the funds are spent for the very reason they were given to Keppel Community Care.” Mr Quinn was not cross examined.
Re (e) ‘the merits of the application’
[16] Fairness as between the applicant in this matter and other persons in a like position has been considered. ’Representative error’ has frequently been addressed by the Tribunal. Each case turns on its own facts and this is reflected in the various outcomes in a range of decisions determined by the Tribunal.
In D Clark v Ringwood Private Hospital, 2 the Full Bench stated that regard should be had to the principles in Kornicki and that the following considerations should be made where there is representative error:
1. 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.
2. A distinction should be drawn between delay properly apportioned to an applicantt representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
3. 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.
4. Error by an applicant’s representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted pursuant to s.170CE.
FINDINGS
[17] I have found that exceptional circumstances exist in this matter sufficient to grant the extension of time for the applicant to pursue her unfair dismissal remedy.
[18] That the applicant did not sign her application for unfair dismissal remedy until nine days after the termination of her employment should not prejudice her in eventually making an application to FWA. She was within the appropriate time frame in which to do that.
[19] The applicant put her application into the hands of her Union. Having done that within the time frame, there would have been nothing to alert her that all would not follow course – ie that the application would be lodged with the correct authorities within the appropriate time frame.
[20] The error lay with the Union and its progression of the application. In effect, it was a representative error. That error is not necessarily fatal to the application, but is a factor to be considered together with other criteria under this section of the Act. 3
In Renee Ackary and MPDG Investments Pty Ltd. 4the Full Bench stated: “In representative error cases the central consideration is the conduct of the applicant and in particular the extent to which the delay was occasioned by that conduct. In this case the focus in the proceedings was not on the conduct of the applicant but on the actions of the applicant’s representative. In our view, in extension of time applications, it matters not whether the delay in lodgement was caused by the incompetence, wilful deceit or dishonesty of the applicant’s representative. What matters is the extent to which (if at all) the applicant’s conduct contributed to the failure to file the notice of election within the prescribed time.”
[21] For the applicant, having done all that would reasonably be expected of her at the time, the delay was caused by circumstances beyond her control. To expect the applicant to follow the course of her application as she might do were she dependent solely upon her own actions, in these circumstances, is an unreasonable expectation. [Deputy President Richards in Attracta Gallagher v Kidz Biz Pty Ltd T/A Kidz Biz Pre-School & Long Day Care] 5
[22] I have taken into account the evidence given by the respondent witness, Mr Quinn where he says that his business would be disadvantaged because of its not-for-profit status were the application to proceed. In the circumstances of this case, a two day delay in lodging the application for unfair dismissal remedy would not, in my view, unduly prejudice the respondent.
[23] I have taken into consideration all of the criteria required to be considered under s.394 of the Act. On balance I have accepted that the application should succeed.
[24] I grant the extension of time application.
DEPUTY PRESIDENT
Appearances:
G. Hay for the Applicant.
K. Bowe for the Respondent.
Hearing details:
2010
Mackay
24 August
1 [Jason Varcoe and Leo Fardell Pty Ltd [2010] FWA 6025].
2 Print P5279, 22 September 1997,per Ross VP, Drake DP and Deegan C.
3 [Telstra-Network Technology Group v Koniki], Dec 858/97 S Print P3168.
4 [(U/2001/7834) PR924226].
5 [2010] FWA 4498
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