Robert Whiley v SJB Drainage and Excavation

[2017] FWC 1550

[2017] FWC 1550

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Robert Whiley
v
SJB Drainage and Excavation
(C2017/833)

DEPUTY PRESIDENT DEAN SYDNEY, 23 MARCH 2017

Application to deal with contraventions involving dismissal – extension of time.

[1] On 15 February 2017, Mr Robert Whiley (the Applicant) made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by SJB Drainage and Excavation (the Respondent) in contravention of the general protections provisions of the Act.

[2] The Applicant states in his application that he commenced employment with the Respondent on 28 May 2016 and his employment was terminated on 24 January 2017. The Applicant’s general protections application lodged on 15 February 2017 was therefore made one day outside the 21 day period prescribed by the Act and cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission).

[3] The matter was listed for hearing by telephone on 17 March 2017 to consider the extension of time issue. At the hearing, the Applicant was granted permission to be represented by Ms Sarah Lock, a lawyer. Mr S Burn (owner of the business) appeared for the Respondent.

[4] The Commission may allow a further period for a general protection application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.366(2) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time.

[5] Section 366 of the Act provides:

366 Time for application

(1) An application under section 365 must be made:

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

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[6] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd¹ where the Full Bench said:

“[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.”

[7] I now deal with each of the provisions of s.366(2) of the Act.

Reason for the delay

[8] The Applicant relied on representative error as the sole reason for the delay.

[9] The Commission’s approach to representative error as an explanation to the late lodgement was summarised by the Full Bench in Robinson v Interstate Transport Pty Ltd 2:

“[24]The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.

[25]The approach in Clark’s Case was summarised in Davidson’s Case as follows:

In Clark the Commission decided that the following general propositions 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. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(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.”

(citations omitted)

[10] The Full Bench went on to say:

“[30]Mr Robinson arranged legal advice three days after the termination of his employment. At that time Mr Robinson requested that Mr Tayler prepare a client agreement for his consideration and upon receiving the agreement, he executed the agreement on 13 May 2010, within a week of its receipt. On the day he executed the agreement, Mr Robinson instructed Mr Tayler to file a general protections application on his behalf. It is unsurprising that Mr Robinson, having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative’s requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of providing clear instructions to Mr Tayler to lodge his application.

[31]As noted by a Full Bench in D La Rosa v Motor One Group Pty Ltd, in the context of s.170CE of the WR Act:

As is evident from Clarke, little might be required to satisfy the Commission that the applicant was blameless in the delay. In the context of a relatively short delay, it may simply be a matter of establishing that the applicant gave instructions to lodge [in this case] a Notice of Election and thereafter left matters in the handsof his or her representative.”

(citations omitted)

[11] In this case, it was submitted that the Applicant’s representative, Ms Lock, was changing firms during the relevant period and had encountered numerous technical computer issues following the transfer. She was finally able to send the application at 3am on 15 February 2017 which resulted in the application being filed one day out of time. Ms Lock submitted that the delay was due to the failure of her computer system and as soon as the system was rectified she acted promptly to lodge the application. Ms Lock submitted that the Applicant was blameless for the delay caused by the IT and technical issues that his representative experienced.

[12] The Applicant gave evidence that he contacted Shine Lawyers at approximately 2pm on 14 February 2017 and after a 30 minute consultation, he instructed Ms Lock to file the general protections application. He said he relied on her to act upon this instruction.

[13] The Applicant was cross-examined by the Respondent as to why it took him until the 21st day (being 14 February 2017) to seek legal advice. The Applicant explained that his partner was not in good health and that he has a lot of problems at home. The Applicant also said that he only decided to seek advice after finding out that the Respondent had not made any payment to his superannuation fund.

[14] Having considered the evidence before me, I am not satisfied that the Applicant has made out an acceptable explanation of the reason for the delay in lodging the application. While I accept that in most circumstances an applicant would be entitled to rely upon his legal representative to act on his instruction and file an application, he was not completely blameless for the delay. The evidence in this case is clear that he only sought advice on the afternoon of the day his application was due to be filed.

[15] This weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

[16] There is no evidence that the Applicant took any steps to contest the termination until the filing of this application. The Applicant said that he felt it would have been fruitless to try to contact the Respondent.

[17] I find this weighs against a finding that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

[18] The Company does not claim that it would suffer any prejudice if the application to extend time is granted. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

The merits of the application

[19] The employment relationship ended following heated telephone conversations between the Applicant and Mr Burns on 24 January 2017. The Applicant said he was upset about the language that Mr Burns used and at the end had to hang up on him. When Mr Burns did not show up at his residence the following day to give him a lift to work as he would normally do, and the wages for the days he worked that week were paid into his account, the Applicant then realised that he had been dismissed.

[20] The Applicant submits that he was dismissed because he made a number of complaints to the Respondent about various matters which mainly involved workplace safety issues. The Applicant contends that the Respondent has breached the general protection provisions and his workplace rights have been adversely affected by the acts of the Respondent.

[21] The Respondent denies the allegations and contends that the Applicant has not been terminated.

[22] I am not able to make a final determination of the merits in this matter as there are factual disputes between the parties. I therefore consider the merits to be a neutral consideration.

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

[23] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 3 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’4

[24] The Applicant’s submissions relied on another decision of the Fair Work Commission 5 which found the existence of ‘exceptional circumstances’ in situations where representative error was the reason for the delay.

[25] A decision to extend time for the filing of a general protections application is discretionary. I am not satisfied that the criteria of fairness as between the Applicant and other persons in a similar position weighs strongly in favour of either party, and I therefore find it to be a neutral consideration.

Conclusion

[26] I have considered all of the matters to which my attention is directed by the Act.

[27] I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[28] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

S Lock for the Applicant.

S Burns for the Respondent.

Hearing details:

2017.

Sydney and Melbourne (by telephone):

March 17.

1 [2011] FWAFB 975.

 2   [2011] FWAFB 2728.

 3   [2015] FWC 8885.

 4 Ibid at [29].

 5   Dean-Villabos v QGC Limited T/A QGCI,[2013] FWC 1537.

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