Peter Clark v The Trustee for Hillstone Golf Unit Trust

[2021] FWC 6220

[2021] FWC 6220

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Clark
v
The Trustee For Hillstone Golf Unit Trust
(U2021/8179)

DEPUTY PRESIDENT LAKE BRISBANE, 10 NOVEMBER 2021

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time granted

[1] Mr Peter Clark (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by the Trustee for Hillstone Gold Unit Trust (the Respondent).

[2] The Applicant’s employment with the Respondent was terminated on 17 August 2021, effective immediately. The applicant lodged the present application on 8 September 2021. It was conceded that was 22 days after the date of dismissal, being one day outside the statutory time limit prescribed by s.394(2) of the Act.

[3] The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. Unsurprisingly, the Respondent opposes the granting of an extension of time. Directions were issued and material filed by each party regarding the question of whether the Applicant should be granted the extension before a hearing was held before me via Microsoft Teams on 27 October 2021.

Should a further period be granted?

[4] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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 like position.”

[5] The test of ‘exceptional circumstances’ establishes a high barrier for an applicant. 1 In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),2 the Full Bench of Fair Work Australiastated that:

“[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.”

[6] Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).

[7] For the Applicant’s unfair dismissal application to proceed, it is necessary for him to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are “exceptional circumstances”, taking into account each of the matters in s.394(3) of the Act.

Applicant’s submissions

[8] The Applicant submits that he should be granted an extension of time because exceptional circumstances exist in his case. His evidence was that he was initially represented by Ms Vicki Crowe, the Human Resources Manager of PGA of Australia. That entity is a professional association from whom he sought professional advice in respect of his employment. The Applicant asserts that at the time he was comfortable with Ms Crowe’s expertise and relied on her advice. However, he understands that Ms Crowe has since left PGA Australia. Consequently, he is now being represented by David Barker from that organisation.

[9] He says that he had, on multiple occasions, given Ms Crowe instructions to assist him to lodge his claim and assist in the matter. Due to the COVID-19 lockdown in Melbourne, Ms Crowe was working in a limited capacity and, for whatever reason, she did not act on those instructions.

[10] The Applicant provided me several emails exchanged between himself and Ms Crowe, which demonstrated that on 18 August 2021, the Applicant contacted Mrs Crowe explaining that he was terminated and sought advice on his rights. On 23 August 2021, Mrs Crowe sent the Applicant a link to the Commission’s unfair dismissal application asking the Applicant to complete what he could and return it to her. On 24 August 2021, the Applicant returned the forms to Mrs Crowe. On 26 August 2021, Mrs Crowe thanked the Applicant and advised that she would be in touch early the following week. On 6 September 2021, Mrs Crowe apologised to the Applicant for not getting the draft back to him and advised that she needs to complete a report before looking at his application. On 8 September 2021, Mrs Crowe sent the Applicant the final draft of the application and advised that he send the application that night. He heeded that advice and lodged it with the Commission later that evening.

[11] The Applicant advised that Ms Crowe had told him that he had 21 business days to lodge the application, which he now understands is incorrect.

[12] The Applicant raises several issues in respect to the merits of the application and the “obvious failures” of the Respondent. In particular, the failure of the Respondent to provide notice or consultation prior to the Applicant’s dismissal relating to underperformance or offering the Applicant the chance to have a support person present when he received his termination letter.

Respondent’s submissions

[13] The Respondent submits that the application should not be granted an extension. The Respondent asserts that the application was lodged late which is another example of one of the reasons why the Applicant was dismissed.

Consideration

Reason for the delay (s.394(3)(a))

[14] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable 3 or a reasonable explanation.4 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”  5

[15] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 6

[16] I am satisfied that the primary reason for the Applicant’s delay was representative error. It was reasonable for the Applicant to have relied on his representatives to ensuring that the application be lodged to the Commission within the prescribed statutory timeframe. The email correspondence between the Applicant and Mrs Crowe demonstrates that the Applicant had heavily relied upon Mrs Crowe’s expertise, followed her advice and acted upon her directions in a quick and timely manner. He responded to her initial request the following day and then submitted the form within hours of receiving from her.

[17] Based on the findings of Graham Jones v Holcim Australia Pty Ltd, 7where it was held that the representatives error constituted exceptional circumstances for the granting of an extension, I find this factor weighs in favour for an extension of time.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

[18] The Applicant became aware of his dismissal on 17 August 2021. This consideration weighs neutrally.

Action taken to dispute the dismissal (s.394(3)(c))

[19] I accept that from 18 August 2021, being one day after the dismissal, the Applicant has taken steps to commence proceedings for an unfair dismissal application. This factor weighs in favour of an extension of time.

Prejudice to the employer (s.394(3)(d))

[20] The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time. 8 I consider this factor to be neutral.

Merits of the Application (s.394(3)(e))

[21] In Kornicki v Telstra-Network Technology Group, 9 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

[22] Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

[23] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. 10 The matter of Graham Jones v Holcim Australia involved a delay caused by a legal representative sending an application late. 11 It was determined that the failure of a representative to lodge an application in the statutory timeframe, notwithstanding the applicant contacting the representative in a timely manner, is not normally encountered and therefore satisfied exceptional circumstances.

Conclusion

[24] Having regard to all the matters set out above, I am satisfied that exceptional circumstances exist in this matter.

[25] I order that the application for an extension of time be granted. I will issue further directions in respect of the hearing of the merits.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR735299>

 1   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 [14].

 2   [2019] FWC 25.

 3   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 [9].

 4   Roberts v Greystances Disability Services; Community Living [2018] FWC 64 [16].

 5   [2018] FWCFB 901 [39].

 6   Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

 7   Graham Jones v Holcim Australia Pty Ltd[2010] FWA 3129 [40] and [41].

 8   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

 9   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 10   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 [31].

 11   Graham Jones v Holcim Australia Pty Ltd[2010] FWA 3129.