Reid Herbert v Ventura International Pty Limited
[2024] FWC 3094
•12 NOVEMBER 2024
| [2024] FWC 3094 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Reid Herbert
v
Ventura International Pty Limited
(U2024/10839)
| COMMISSIONER SLOAN | SYDNEY, 12 NOVEMBER 2024 |
Application for an unfair dismissal remedy
Reid Herbert was employed by Ventura International Pty Ltd (“Ventura”). On 19 August 2024, Ventura gave Mr Herbert a letter informing him that his employment was terminated on the ground of redundancy. The dismissal took effect that day.
Mr Herbert filed an unfair dismissal application with the Fair Work Commission.[1] Such an application must be made within 21 days of the dismissal, unless the Commission allows a further period.[2] The 21 day period expired on 9 September 2024, but Mr Herbert’s application was filed on 10 September 2024. As a result, Mr Herbert requires the Commission to allow him an extension of time to file the application. He applies for such an extension.
Ventura opposes Mr Herbert being granted an extension of time.[3]
What is the question to be answered?
The Commission may only allow Mr Herbert an extension of time if it is satisfied that there are “exceptional circumstances”, taking into account: [4]
a.the reason for the delay. The “delay” is the period between the end of the 21-day period and the filing of the application.[5] In this case, one day;
b.whether Mr Herbert first became aware of the dismissal after it had taken effect. This factor allows the Commission to have regard to whether there was a delay in Mr Herbert being informed of his dismissal, which may account for the delay in filing the application;
c.any action taken by Mr Herbert to dispute the dismissal. It will be relevant if an employee has taken action to dispute their dismissal, other than by applying under the Act. It will show, and put the employer on notice, that the employee actively challenges their dismissal. This may support an extension of time; [6]
d.prejudice to Ventura (including prejudice caused by the delay);
e.the merits of the unfair dismissal application. That is, the prospects of Mr Herbert succeeding on his claim; and
f.fairness as between Mr Herbert and other persons in a like position.
Circumstances will be “exceptional” if they are out of the ordinary course, or unusual, or special, or uncommon. They do not need to be unique, or unprecedented, or very rare.[7] Exceptional circumstances may include:
a.a single exceptional matter;
b.a combination of exceptional factors; or
c.a combination of ordinary factors which, when taken together, are seen as exceptional.[8]
The test of “exceptional circumstances” establishes a high hurdle for a person seeking an extension.[9] Mr Herbert has to demonstrate that exceptional circumstances exist.[10]
But a finding that exceptional circumstances exist is not the end of the matter. The Commission still has a discretion whether or not to allow an extension of time.[11]
Therefore, I need to answer two questions:
a.Do exceptional circumstances exist in this matter, taking into account the criteria at [4] above?
b.If so, should I exercise my discretion to allow Mr Herbert an extension of time?
For the following reasons, the answer to both of those questions is yes.
Why I have found the circumstances to be exceptional
I will explain my decision by reference to the criteria at [4] above.
There was an acceptable explanation for the delay
Mr Herbert does not have to show that the reason for the delay is itself exceptional. It is just one of the factors to be taken into account. But a credible explanation for the entirety of the delay will usually assist an applicant. On the other hand, the absence of an explanation for the delay (or part of it) will generally count against them.[12]
Mr Herbert submitted that the delay was the result of representative error.
These are the relevant facts:
a.On 4 September 2024, Mr Herbert sent an email to Jahan Kalantar and Kayla Brander of Executive Law Group regarding the possibility of making an unfair dismissal claim against Ventura.
b.On 6 September 2024, Ms Brander sent an email to Mr Herbert, advising him that he had until 10 September 2024 to file an unfair dismissal claim.
c.At 5.39pm on 9 September 2024, Mr Herbert sent an email to Ms Brander, instructing her file an unfair dismissal application.
d.Ms Brander filed the unfair dismissal application the next day.
The principles that guide the Commission when considering representative error in the context of an application to extend time are well known.[13] Representative error may be a sufficient reason to grant an extension of time. But it is necessary to consider the conduct of the applicant. The Commission will view an applicant who provides clear and timely instructions to a representative, so to enable an application to be filed within time, differently to one who does not.
However, it is not necessary for an applicant to show that they were “blameless” for the delay, beyond establishing that they gave appropriate instructions to their representative in a timely fashion.[14] At the same time, having instructed their representative, an applicant cannot then sit on their hands for an extended period while the prescribed time for filing the application passes by.[15]
Further, error by an applicant’s representative is only one of a number of factors that must be considered by the Commission in deciding whether or not to allow an extension of time.
Ms Brander submitted that fault for the delay rested with her. She stated that she had miscalculated the date by which the application needed to be filed and had consequently provided incorrect advice to Mr Herbert. She stated that Mr Herbert relied on her advice. She expressed the opinion that Mr Herbert did not contribute to the delay and that he was blameless in that regard.
Ventura disagreed with that submission. It relied on two facts in particular. First, Mr Herbert’s first contact with Employment Law Group was 16 days after his dismissal. Second, he did not instruct his solicitors to make the application until the evening before it was due to be filed (according to the advice Ms Brander had provided to him). Ventura submitted, in effect, that had Mr Herbert acted more promptly, his solicitors would not have had to wait until what they believed to be the last day to file his application.
I accept that Mr Herbert might have acted more diligently to instruct Employment Law Group. But I think it can be presumed that the timing of his email to Ms Brander on 9 September 2024 was informed by the advice she had provided regarding the limitation period. And Ms Brander was still able to file the application within that period.
I am satisfied that Mr Herbert has provided an acceptable explanation for the delay.
Herbert was not informed of his dismissal after it took effect
Mr Herbert was notified of the dismissal on the day it took effect. This factor is not relevant.
Herbert took no action to dispute his dismissal
There is no evidence that Mr Herbert took any action to dispute his dismissal prior to making his unfair dismissal application. This does not support a finding of exceptional circumstances.
No evidence of prejudice to Ventura
Ventura made no submissions that it would suffer prejudice were I to grant Mr Herbert an extension of time. I might be able to infer some prejudice, in that Ventura would be denied the benefit of the limitation period.[16] But even were I to find no prejudice, that would not be a factor which of itself would support a finding that exceptional circumstances exist.[17]
I do not consider this factor to be of any significance in this case.
The merits of the unfair dismissal application
For present purposes, it is sufficient for Mr Herbert to show that his unfair dismissal claim has some merit. The greater the merit, the more weight will be given to this factor.[18] However, the Commission should not embark on a detailed consideration of the substantive case in an extension of time application.[19]
Ventura led evidence as to the circumstances of Mr Herbert’s dismissal. It submitted that the evidence showed that it had complied with the Small Business Fair Dismissal Code and that the dismissal was a case of genuine redundancy.[20] It argued that it followed that the application lacked merit.
Mr Herbert did not lead evidence regarding the merits of the case. He relied on the contents of his unfair dismissal application. In that document, he disputed that his dismissal was due to genuine redundancy or that Ventura had complied with the Small Business Fair Dismissal Code.
The weight of the evidence is in Ventura’s favour, but I do not consider that I can conclude that the application is wholly lacking in merit. Yet this is not a factor that greatly supports Mr Herbert’s extension application.
Fairness as between Herbert and other persons in a similar position
This consideration is concerned with the importance of the Commission applying consistent principles in cases of this kind, so as to ensure fairness as between an applicant and other persons in a similar position. That consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[21]
Mr Herbert provided me with no basis on which to find that fairness between himself and other persons in a similar position favours the granting of an extension of time. I am not aware of any other cases before the Commission that might be relevant.
I do not consider this factor to be of any significance in this case.
Conclusions
Having regard to the matters discussed above, I am satisfied on balance that exceptional circumstances exist. The circumstances of this case are out of the ordinary course, unusual, and special because an applicant can reasonably expect that if they engage a solicitor to act on their behalf, their solicitor will know how to determine, and comply with, the 21-day time period.
The representative error offers an acceptable explanation for the delay. Coupled with the shortness of the delay and the lack of real prejudice to Ventura, that explanation outweighs the other considerations which might argue against the Commission granting an extension of time. Further, in the circumstances of this case it is in the interests of justice that Mr Herbert be permitted to pursue his unfair dismissal claim.
These matters lead me to conclude that it is appropriate that I exercise my discretion to allow the extension.
Order
I order that the time for Mr Herbert to make his unfair dismissal application be extended to 10 September 2024.
COMMISSIONER
Appearances:
Kayla Brander, for the Applicant
Mikhail Ushakoff, for the Respondent
Hearing details:
2024
Sydney (by video)
29 October 2024
[1] The application was made under Part 3-2 of the Fair Work Act 2009 (“Act”). (All legislative provisions referred to in this decision are references to provisions of the Act.)
[2] Section 394(2)
[3] Ventura raised additional objections to the unfair dismissal application. These were that the dismissal was a case of genuine redundancy and that Ventura, being a small business employer, had complied with the Small Business Fair Dismissal Code. These proceedings concerned only the out of time objection.
[4] Section 394(3). The requirement to take these matters into account means that each of them must be treated as significant to the decision-making process and given appropriate weight: see for example Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [19] and [39]
[5] Long v Keolis Downer t/a Yarra Trams[2018] FWCFB 5109 at [40]
[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300
[7] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]. In this case, the Ful Bench considered the meaning of “exceptional circumstances” in the context of s 394(3), which is relevantly analogous to s 774(2).
[8] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]
[9] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[10] Romic v Blacktown City Council[2020] FWC 2533 at [8], citing Wemyss v Mission Australia Employment Services[2010] FWA 1798.
[11] Halls v McCardle and Ors [2017] FCCA 316, cited in Nikhil Challa v Australia and New Zealand Banking Group Limited t/as ANZ Bank[2017] FWCFB 436 at [16]
[12] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [39]
[13] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-419. That case was decided in the context of s 170CE(8) of the Workplace Relations Act 1996, which was in significantly different terms to those of s 394(3). However, the Full Bench has confirmed that Clark provides appropriate guidance for the purposes of the Fair Work Act: Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728 at [24]
[14] Qantas Ground Services Pty Ltd t/a QGS v Simon Rogers[2019] FWCFB 2759 at [17]
[15] Long v Keolis Downer t/a Yarra Trams[2018] FWCFB 5109 at [60]
[16] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 544 (Dawson J)
[17] Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [38], quoted with approval in Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890 at [21]
[18] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [71]
[19] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [72]
[20] See footnote 3
[21] James Morphett v Pearcedale Egg Farm[2015] FWC 8885 at [29]
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