Raelene Polymiadis v The Carer's Phone Pty Ltd T/A Prompt Care

[2017] FWC 5229

[2017] FWC 5229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Raelene Polymiadis
v
The Carer’s Phone Pty Ltd T/A Prompt Care
(U2017/8845)

COMMISSIONER PLATT ADELAIDE, 10 OCTOBER 2017

Application for an unfair dismissal remedy – extension of time – application granted.

[1] Ms Raelene Polymiadis has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with The Carer’s Phone Pty Ltd T/A Prompt Care (Prompt Care) which her form F2 Unfair Dismissal Application advised took effect on 16 June 2017.

[2] The application was lodged on 16 August 2017.

[3] Ms Polymiadis’ application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:

“1.4.1. At the time of her dismissal the Applicant was represented by Manfield & Co Injury Lawyers with respect to a workers compensation claim.

1.4.2. The Applicant’s dismissal took effect on 16 June 2017.

1.4.3. By letter dated 19 June, but received on 22 June, the Applicant received written confirmation of her dismissal.

1.4.4. The Applicant’s then solicitors suggested that she lodge an Unfair Dismissal Application because her dismissal appeared to be unfair.

1.4.5. The Applicant immediately instructed her solicitors to prepare and lodge an Application on her behalf.

1.4.6. The Applicant travelled overseas (on pre-arranged travel organised some two and half years earlier) for all of July.

1.4.7. On her return from overseas, the Applicant suffered a brief bout of bronchitis.

1.4.8. Having not heard anything from her then solicitors for some time, the Applicant contacted them seeking an update with respect to the status of her Application in the first or second week of August.

1.4.9. The Applicant was advised that the solicitor with the primary conduct of her matter had left the employ of Manfield & Co and the Firm Principal would check the Applicant’s file and get back to her.

1.4.10. On or about Tuesday, 8 August 2017, the Firm Principal advised the Applicant that he had located a draft Application on her file and asked for some time to speak with the solicitor who previously had the conduct of her matter. The Firm Principal said he would then call the Applicant back.

1.4.11. Having heard nothing further, the Applicant followed up the Firm Principal on or about Thursday, 10 August 2017. The Firm Principal said that he was seeking advice as to the best way forward and that he expected to receive that advice by Monday, 14 August 2017.

1.4.12. Having heard nothing from Manfield & Co on 14 August, the Applicant followed up the Firm Principal on the morning of Tuesday, 15 August 2017. She was advised that he was in Court.

1.4.13. The Firm Principal returned the Applicant’s call on the afternoon of 15 August and referred her to Bourne Lawyers, her representatives for this Application.

1.4.14. The Applicant instructed Bourne Lawyers to obtain a copy of the draft application previously prepared by Manfield & Co and to immediately file an Application on her behalf.”

[4] On 24 August 2017, Prompt Care lodged a form F3 Employer Response which raised a jurisdictional objection on the basis that the application was lodged out of time.

[5] On 11 September 2017, my Associate corresponded with Ms Polymiadis and Prompt Care and advised that the extension of time issue would be considered at a telephone conference on 10 October 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Ms Polymiadis was directed to provide a statement concerning the extension of time and any documents to be relied upon by 20 September 2017. Prompt Care was invited to file any material in reply by 27 September 2017.

[6] Ms Polymiadis provided a written submission which is summarised as follows:

● Ms Polymiadis’ dismissal took effect on 16 June 2017 but she was not advised of this until 22 June 2017.
● On 23 June 2017, she sought legal advice from Manfield and Co, one day after receiving written notice of her termination, who had previously acted for her in respect of a workers compensation claim.
● Thirteen days after the dismissal had taken effect, she provided clear instructions to Manfield and Co to lodge an unfair dismissal application.
● She was advised that the application would be lodged on 30 June 2017 and that the matter would not be listed for conciliation for at least 4-6 weeks.
● She was overseas during 3 July 2017 to 31 July 2017 and therefore did not follow up her representative.
● Blame may be attributable to Ms Polymiadis for the period that she was overseas, however, she had provided her representative with clear instructions, was in locations with a time zone that was approximately six and a half hours behind Adelaide and often without internet or email connection. Furthermore, she limited the use of her phone whilst overseas to emergencies only.
● Upon returning from overseas, she actively followed up the representative.
● To the extent that she did not vigorously follow up her representative, this was as a result of the assurances from her representative.
● She received advice on 15 August 2017 that her application had not been lodged within time and that she would need to seek alternative representation.
● On 15 August 2017, she obtained alternative representation.
● A draft application was sent by her new representative at approximately 8.30pm 15 August 2017.
● At 11.05pm, Ms Polymiadis provided her new representative with instructions to file the application.
● The failure of her previous representative to lodge an application within time, and in accordance with her express instructions to do so, constitutes an exceptional circumstance and acceptable reason for the delay.
● Prejudice to Prompt Care should be considered as a neutral factor.
● The merits of the application weigh in favour of granting an extension of time as Ms Polymiadis was summarily dismissed without payment in lieu of notice, was not provided with a reason for the dismissal and was not given the opportunity to respond.
● Ms Polymiadis is in a similar position to those who have failed to file on time as a result of representative error and in circumstances where they are blameless for the delay. The Commission regularly allows extensions of time on this basis. 1

[7] Ms Polymiadis also provided a witness statement and supplementary statement which can be summarised as follows:

● On 15 June 2017 at 5.15pm she received a telephone call from Mr Matthew Purtell who advised that her employment had been terminated. No reason was provided at this time. Mr Purtell advised that an email and formal letter would be sent to her setting out the reasons.
● The letter of termination dated 19 June 2017 was received by her on 22 June 2017.
● At this stage she became aware that her employment had been terminated on 16 June 2017.
● On 23 June 2017, she emailed Manfield and Co to discuss her options in relation to her dismissal.
● She already had an appointment with Manfield and Co on 29 June 2017 in relation to her workers compensation claim. At that appointment she was advised that she should lodge an unfair dismissal application. She instructed her representative to lodge an application.
● Her representative knew that she was travelling overseas the following week and Ms Polymiadis knew that the representative was leaving the firm the following day.
● Ms Polymiadis was advised that the Firm Principal would take over the conduct of her file.
● Ms Polymiadis was advised that the application would be filed the next day and that it would likely be 4 to 6 weeks before she would be advised of the conciliation date.
● On 3 July 2017, she left Adelaide and travelled to Greece. She took her phone but only used it for emergencies. For example, she responded to a text message from her son who was checking whether they had been affected by an earthquake.
● During her time overseas she did not try and contact Manfield and Co as she had been reassured that the application would be lodged.
● She returned from overseas at 8.05pm 31 July 2017.
● She suffered from bronchitis and jet lag.
● On 3 August 2017, she emailed Manfield and Co following up the progress of her matter.
● On 7 August 2017, she received an email from Manfield and Co’s paralegal that an appointment would be arranged with Mr Manfield.
● On 8 August 2017, Mr Manfield telephoned her and advised that he had found a draft application and that he needed some time to speak to her previous representative. He advised that he would call her back.
● On 10 August 2017, having heard nothing, she telephoned Mr Manfield who said he was seeking advice about the best way forward which he expected to receive by 14 August 2017.
● Having heard nothing, she telephoned Mr Manfield on 15 August 2017. She was advised that he was in court. Mr Manfield returned her telephone call and referred her to Bourne Lawyers.
● Late in the afternoon on 15 August 2017, she spoke with Mr Simon Bourne of Bourne Lawyers. He advised her about the unfair dismissal application.
● At approximately 8.30pm on 15 August 2017, Mr Bourne emailed her the draft application.
● She replied to Mr Bourne at approximately 11.05pm on 15 August 2017 providing some additional information and instructing him to file.
● The application was lodged at 8.36am on 16 August 2017.
● In relation to the merits of the application, Ms Polymiadis contends that a meeting was held on 16 February 2017 to discuss a complaint about her. Another employee stated that she did not like hearing Ms Polymiadis swear at work, nothing else was raised. Another meeting was organised for early March 2017 where complaints made by a client and prospective employee were raised with Ms Polymiadis, however the meeting was not disciplinary in nature. As a result of the two meetings, she developed an illness and lodged a workers compensation claim. She was unfit for work from 10 March 2017. On 14 June 2017, she notified Mr Purtell that she would return to work on 16 June 2017. She was telephoned on 15 June 2017 and informed that she had been dismissed.

[8] Mr Michael Manfield, Firm Principal of Manfield and Co, provided a witness statement which is relevantly summarised as follows:

● Manfield and Co’s records show that a previous partner (the previous representative) who departed the firm on 30 June 2017 had, prior to April 2017, acted for Ms Polymiadis in relation to one prior matter.
● A file note dated 5 April 2017 indicates that Ms Polymiadis provided instructions to act in respect of a workers compensation matter on 4 April 2017.
● Manfield and Co received an email dated 23 June 2017 from Ms Polymiadis advising of her dismissal.
● A file note of a discussion between the previous representative and Ms Polymiadis on 23 June 2017 indicates that Ms Polymiadis had provided instructions to file an unfair dismissal application and it was recorded that she would be travelling overseas from 3 July 2017.
● An unfair dismissal application was created on 26 June 2017 and modified on 27 June 2017.
● A file note dated 30 June 2017 indicates that the previous representative met with Ms Polymiadis on 29 June 2017, the original termination letter was provided to the previous representative at this time.
● Mr Manfield took over the conduct of the previous representative’s files when she left the firm. File transfer instructions were completed by the previous representative. These were undertaken in the month of June 2017, however, he is unsure when Ms Polymiadis’ file transfer instructions were completed.
● He was not advised of an actual or potential unfair dismissal application.
● On 3 August 2017, Ms Polymiadis contacted Manfield and Co by email following up the progress of her unfair dismissal application.
● Mr Manfield was not aware of Ms Polymiadis’ issue with the unfair dismissal application until 4 August 2017.
● On 7 August 2017, a paralegal replied to Ms Polymiadis indicating that contact would be made shortly to arrange for a telephone appointment to discuss the matter.
● On 10 August 2017, Ms Polymiadis telephoned Mr Manfield, he advised that he would take some advice himself as to the best way to proceed and that he expected to receive this advice by 14 August 2017.
● On 15 August 2017, Ms Polymiadis telephoned Mr Manfield, he was in a meeting though.
● On the same day, Mr Manfiled telephoned Ms Polymiadis back and advised that it was inappropriate for the firm to continue acting. He referred Ms Polymiadis to Bourne Lawyers.

[9] Prompt Care did not provide written submissions.

[10] A hearing was conducted by way of telephone conference on 10 October 2017. A sound file record of the telephone conference was kept. Mr Simon Bourne of Bourne Lawyers represented Ms Polymiadis and Mr Matthew Purtell represented Prompt Care. Permission was granted to Mr Bourne for the purposes of this hearing pursuant to s.596(2)(a) of the Act.

[11] Mr Bourne on behalf of Ms Polymiadis relied on the material filed, and noted that no material had been filed by Prompt Care, nor was any dispute raised in relation to the material filed by Ms Polymiadis. Mr Bourne contended that the Commission should now find that prejudice was a factor in favour of Ms Polymiadis.

[12] Prompt Care did not respond to the submissions or make any comment on the material filed.

[13] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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 similar position.”

[14] This unfair dismissal application by Ms Polymiadis was made 40 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[15] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd² which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[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.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

[16] I have also considered the matter of Clark v Ringwood Private Hospital 3  which deals with representative error and sets out a number of principles as detailed below:

“In our view the following general propositions should be taken into account in deciding whether or not the representative error constitutes an acceptable explanation for delay:

(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. (original emphasis)

…

(2) 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.

…

(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(8).”

[17] I make the following findings.

● Ms Polymiadis was not aware of the dismissal until 22 June 2017.
● Ms Polymiadis promptly instructed her then representative to lodge an unfair dismissal application on 23 June 2017 and on 29 June 2017 prior to her departure on an overseas holiday.
● Representative error occurred where Ms Polymiadis’ then representative failed to promptly lodge an application and that error, and thus the delay, was compounded by the representative’s departure from the firm and as a result of failures in the file handover process, Ms Polymiadis’ matter ‘fell through the cracks’.
● Ms Polymiadis took appropriate steps on her return to Australia to follow up on the lodgement of the claim and took prompt action when it was established that the application had not been lodged in accordance with her instructions.

[18] The applicant needs to provide a credible explanation for the entire period of the delay, 4 and has done so.

[19] The delay in this matter is considerable, however there is no submission that the granting of an extension of time represents prejudice to Prompt Care.

[20] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.

[21] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[22] For the reasons I have set out above, I am satisfied that Ms Polymiadis’ circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and directions for the hearing of the application will be issued. An Order⁵ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr S.Bourne of counsel on behalf of the Applicant.

Mr M.Purtell on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

October 10.

 1   See Transport Workers Union of Australia v Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services [2010] FWA 9622, Finlayson v Western Health T/A Western Health[2014] FWC 6076, McDonald v Foamland [2014] FWC 5607, Santesso v Qantas Airways Limited[2015] FWC 3056.

2 [2011] FWAFB 975

 3 (1997) 74 IR 413

 4   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

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