Rodney Cross, Karin Thompson and Denis Payne v Bananacoast Community Credit Union Ltd T/A Bcu

[2012] FWA 7681

Note: An appeal pursuant to s.604 (C2012/5608) was lodged against this decision - refer to Full Bench decision dated 4 December 2012 [[2012] FWAFB 10165] for result of appeal.

[2012] FWA 7681

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 394 - Applications for unfair dismissal remedy

Rodney Cross, Karin Thompson and Denis Payne
v
Bananacoast Community Credit Union Ltd T/A BCU
(U2012/1143, U2012/1134, U2012/1133)

DEPUTY PRESIDENT SAMS SYDNEY, 20 SEPTEMBER 2012

Unfair dismissals - whether genuine redundancies - information obtained after termination - applications made ‘out of time’ - ‘exceptional circumstances’ - representative error - no fault of employees - merits of case not hopeless - little prejudice to employer - ‘exceptional circumstances’ established - extensions of time granted.

[1] The three applicants in this matter, Ms Karin Thompson, Mr Rodney Cross and Mr Denis Payne (the ‘applicants’), were all made redundant by the Bananacoast Community Credit Union Ltd (the ‘respondent’) on 5 April 2012. The purported reasons for the redundancies were said to have been economically based and had resulted from a company restructure. At the time of their redundancies, none of the applicants disputed the purported reasons why the respondent found it necessary to make them redundant. However, their Union (the Finance Sector Union (‘FSU’)) disputes that the applicants were genuinely consulted about the restructure and their consequent redundancies and have now filed unfair dismissal applications on their behalf.

[2] There is no dispute that the applicants received redundancy payments in accordance with the terms of the relevant Modern Award, the Banking, Finance and Insurance Award 2010 [MA000019] (the ‘Award’). I set out below the applicants’ positions, their respective years of service and the payments made to each of them (including statutory entitlements) at the relevant time.

Name	Position	Years of Service	Payments
Karin Thompson	Portfolio Manager	13 ½ years	$37,071
Rodney Cross	Commercial Lending Manager	3 years	$19,730
Denis Payne	Portfolio Manager	12 years	$43,614

[3] I note that, to their credit, all three applicants have secured alternative employment since their dismissals.

[4] As I have just mentioned, the applicants have each filed unfair dismissal applications, pursuant to s 394 of the Fair Work Act 2009 (‘the Act’) - on 15 May 2012 in respect to Ms Thompson and Ms Payne and 16 May 2012 in respect to Mr Cross - alleging that information they obtained about a month after they were made redundant, had now convinced them that their terminations were not for reasons of genuine redundancy, and as a result, and on advice from their Union, their dismissals were unfair within the meaning of s 387 of the Act.

[5] As is obviously apparent, the unfair dismissal applications were filed well outside the statutory time limit set by s 394(2) of the Act, being within 14 days after ‘dismissal took effect’, i.e. by 27 and 28 days; although I note that the applicants’ last day of employment was the day before Easter 2012.

[6] The applicants seek to have Fair Work Australia (FWA) extend the time for filing their applications for remedies from unfair dismissal on the basis of ‘exceptional circumstances’, pursuant to the discretionary powers of FWA to do so under s 394(3) of the Act. Shortly stated, the ‘exceptional circumstances’ relied upon was the view that their redundancies were not genuine and had they known, at the time, what they know now, they would have challenged the fairness of their terminations of employment. Impliedly, such a view may involve serious criticism of the respondent’s actions and I shall come back to the evidence in this respect shortly.

[7] At this juncture, I would observe that the parties were unable to point to any authority of FWA as to a finding of ‘exceptional circumstances’ in a situation which was analogous or similar to the facts and circumstances of this case. Moreover, I also raised with the parties the notion of ‘representative error’ to explain the period between the applicants’ first contact with the Union and the filing of the applications, which undeniably was some 10-11 days. I shall also return to this matter later.

[8] At the hearing of the applications in Coffs Harbour on 28 August, 2012, I joined all three matters and determined that the evidence, in so far as relevant in each matter, shall be the evidence in the others.

[9] There does not appear to be any serious argument as to the facts leading up to, and subsequent to the applicants’ terminations of employment. Ultimately, the question for FWA to determine is what the Tribunal is able to draw from these facts in the context of its discretionary powers under s 394(3) of the Act to extend the time for filing the applications or dismiss the applications as beyond jurisdiction.

Factual Background

[10] The respondent employs around 250 employees who are engaged in financial services and provide advice to clients on the north coast of NSW. Following a review of its commercial banking operations on 2 April 2012, all staff received an internal memo from the Chief Executive, Lyndon Kingston in the following terms:

‘The present economic climate has seen many of our competitors, such as Westpac, ANZ, Suncorp, BoQ & BankWest, undergo a staffing re-assessment. Such moves have been necessary to ensure these banks remain stable and competitive, particularly given the adverse effects that the on-going European financial crisis is having on the Australian economy and industries.

Whilst bcu has maintained some growth during these tough times, the longevity of the financial downturn has forced bcu to closely review its business operations.

Reduced consumer and business confidence in the market place, high competition for deposits and lending, reduction in lending volumes, all lead to restriction of market activities.

It is evident the Commercial Banking sector has been most affected by these market activities, and continues today to struggle with a lack of business confidence. bcu has recognised that in order to remain competitive, the Commercial Banking team at bcu will need to be restructured, which unfortunately will result in some redundancies.

For the staff that will be affected by these restructure changes, your Executive Manager will consult with you over the next week.

We shall keep you updated as we work through this process, however if you have any concerns, please do not hesitate to raise them with your Executive Manager.’

[11] Each of the applicants (and others) attended meetings on 4 April 2012 with Mr David Traynor, Executive Manager and Ms Shelley Lantry, Human Resources Manager. They were informed their positions were to be made redundant, and that there were no redeployment opportunities available. They were presented with a statement of service and a calculation of redundancy entitlements and were not required to work their five weeks of notice. They left their employment the next day.

[12] As a result of information they subsequently received from various sources, the applicants suspected their redundancies were not genuine. They contacted the Union on 4 May 2012 and National Industrial Officer, Samantha Abeydeera, advised that unfair dismissal applications would need to be filed with FWA.

EVIDENCE

Other Evidence of the Applicants

[13] Ms Thompson said that on 4 May 2012 she visited her former colleagues Brett Kelly, Susan Jennings and Brian Leigh at the office. Mr Kelly, who was a senior manager, informed her that a Commercial Business Analyst had commenced employment with the respondent on 2 May 2012. She inquired if the person had received any training. Ms Jennings told her that the person was introduced to staff who were advised ‘to keep the appointment quiet’ (This was denied by the respondent). Mr Kelly also informed her that Mr Traynor was in Brisbane interviewing for a Commercial Banking Analyst position to be located in Brisbane. He advised her to contact the Union because the duties of this position were the same as for her previous role as a Portfolio Manager.

[14] In oral evidence, Ms Thompson said that she was initially shocked at her redundancy and with the speed it had occurred. There was no discussion at the meeting with Mr Traynor about redeployment opportunities and she had just accepted it.

[15] Ms Thompson said that when Mr Kelly had told her the new employee’s job title had changed, he had the new job description with him, but obviously could not give it to her. However, it was almost exactly the same as for the position she had held, but with more supervision. She believed she would have been fully competent for the job. Both Ms Jennings, who was an assistant to the Commercial Relationships Manager and Mr Leigh, Portfolio Manager, also knew about the duties of the position. Ms Thompson believed the proposed Brisbane position which had been previously advertised, was similar to her former role. Ms Thompson deposed that when she contacted the Union, immediately thereafter, she was requested to provide further information and she did so within a week.

[16] In cross examination, Ms Thompson accepted that the positions she had cited had been vacant before the restructure and that she did not raise them in her meeting with Mr Traynor. While she had spoken to another manager, Mr Mark Atwood about one of the positions, she had not applied for it.

[17] Ms Thomspon accepted her unfair dismissal application was filed 11 days after her suspicions were aroused. On advice from the Union, she had not spoken to the respondent, and had left the filing of her application to the Union.

[18] After Mr Denis Payne’s redundancy, he decided to go on a P&O cruise with his wife. They left Brisbane on 22 April 2012 and returned on 30 April. On 23 April, 2012, in the course of a chance conversation during the cruise, he had learnt from a fellow passenger that a friend of the passenger was to start work in Brisbane on the following Monday as a Commercial Lender for the respondent. On his return, Mr Payne called Mr Kelly on 4 May 2012, who told him to talk to Ms Thompson as ‘interesting things have been happening’. When he called Ms Thompson, she told him of both the new position in Coffs Harbour and the interviews in Brisbane. She advised him to contact the Union and he did so on the same day.

[19] In oral evidence, Mr Payne said that in his meeting with Mr Traynor on 4 April 2012, it was made very clear that there were no redeployment opportunities. It had all come as a bit of a shock and had happened very quickly. He had no time to advise his clients of his departure. He believed that other earlier redundancies had not progressed so rapidly.

[20] Mr Payne explained that when he got back to Coffs Harbour after the cruise he had immediately got in touch with the Union. He had no reason to disbelieve what Ms Thompson had told him, particularly as it appeared to confirm what he found out from the passenger on the cruise. Mr Payne deposed that immediately he was asked by the Union to provide further information, he did not relax and within a couple of days he had sent it.

[21] Mr Payne believed the new employee’s role was exactly the same as his former position. He was upset that after 13 years without ever being disciplined and having generated the second highest amount of business for the respondent, he had received no warning of his redundancy or an explanation for it. He actually believed his position was safe.

[22] In cross examination, Mr Payne conceded that he was aware of positions being advertised internally before the restructure, but he was not concerned because he was already in a job. However, the position filled in Coffs Harbour was never advertised and never discussed. He did not know if that position was available at the time he was made redundant. He said that he did not raise any redeployment opportunities with Mr Traynor, because Mr Traynor had been adamant that none existed, and if he said so, ‘that’s it’. Mr Payne said he was ‘ok’ about the Brisbane position, but was not happy with the filling of the Coffs Harbour position. He believed it was unfair. Mr Payne agreed he had made no complaint until he found out, on 4 May 2012, of the filled position. However, he believed it was exactly the same as his redundant position. It did not matter how he had found out, he would still have contested it.

[23] Mr Rodney Cross said that on 3 May 2012, he had coffee with Mr Leiper, a former colleague employed by the respondent, who informed him that on the day before, Mr Traynor introduced a new employee who was taking over the role of Commercial Lending Analyst. Mr Cross said he was shocked and amazed and asked who he was. Mr Leiper told him he was ‘a young fellow from the Bank of South Australia’.

[24] The next day Mr Cross received a phone call from another former colleague, Scott Lacy, who told him that someone was sitting in his chair as the new Commercial Assistant and looking after some of his (Mr Cross’) files. After contacting the Union on 4 May 2012, Mr Cross met with Ms Thompson and Mr Payne on 7 May to discuss what they had learnt and what to do. They agreed to pursue the matter through the Union.

[25] In oral evidence, Mr Cross said he was not particularly surprised by his redundancy because he felt that the Executive of the respondent was not favourably disposed towards keeping staff. He had not mentioned redeployment at the time because he thought it was a futile exercise. He had also previously told the respondent he was ‘mobile’ and would have considered the Brisbane vacancy. Mr Cross said he believed the information he required from Mr Leiper and Mr Lacy was credible because they had nothing to lose by telling him and, in fact, had a lot to lose if the respondent found out.

[26] In cross examination, Mr Cross accepted that the three positions he had mentioned had all been internally advertised before the restructure. He agreed he had not mentioned being able to move to Brisbane to undertake that vacancy. Mr Cross said that he had not taken any steps to dispute his redundancy because he believed he was persona non grata with the respondent. Certain people saw him as a ‘smart-arse’ and there was an organisational chart without his name on it.

[27] Mr Cross deposed that he was unaware of the 14 day time limit to file an unfair dismissal claim. However, as he did not know the process, he had left it to the Union. He also claimed to be suffering from a considerable amount of emotional and physical stress as a result of his dismissal. Mr Cross further deposed that having been asked by the Union for additional information, he had provided it within a week.

For the respondent

[28] Ms Shelley Lantry is the respondent’s Human Resources Manager. Her evidence dealt primarily with addressing the positions claimed by the applicants to have been available at the relevant time (early April 2012).

[29] Ms Lantry said the Commercial Banking Analyst role in Brisbane was initially advertised internally on 27 January 2012 and 3 February 2012. In fact, Ms Thompson had applied for the position, but was unsuccessful. The position was then put on hold until the restructure. However, a highly skilled individual in property (a skill set said to be rare in the region) came onto the market shortly after the restructure. The respondent decided to tailor a role to fit that person.

[30] Through Ms Lantry’s evidence, Mr Traynor identified the differences between a portfolio manager and analyst as:

‘A Portfolio Manager is expected to meet with clients where required (their business, in the office, etc), maximise sales opportunities, negotiate transactions, manage the sales process through from opportunity to settlement, and then manage the connection on an ongoing basis.

An Analyst is required to attend meetings (as requested by his line manager), take notes of the meeting, write the Credit paper for the manager to sign, and assist with the management of the portfolio.

That is, one is responsible for sales and portfolio performance and takes a kick from me if things go wrong. The other has the comfort of having a person between me and them.

Apart from the tertiary qualification Matt has experience in CBD Property - as I had been having trouble finding to somebody to support Shane he was a good fall back.’

[31] As to the Credit Risk Review Analyst position, Ms Lantry deposed that it was advertised internally and externally on 23 December 2011 and 6 June 2012 respectively. The position was filled externally before the restructure. As a result, Ms Thompson and Mr Paynes’ roles as Portfolio Managers and Mr Cross’s role as Commercial Lending Manager were made redundant.

[32] Ms Lantry said that the Senior Credit Risk Analyst position had been vacant from March 2011 and was advertised internally and externally in May 2011. An offer was made to an external candidate prior to the restructure which resulted in the Portfolio Manager and Commercial Lending Manager positions being made redundant.

SUBMISSIONS

For the Union

[33] In each case, Mr D Peddie submitted that the applicants had not been genuinely consulted in respect to the restructure of the business as required by the relevant provisions of the Award. He put that the delay in filing their applications for unfair dismissal was because the applicants did not become aware (until a month after their dismissals) that new staff had been appointed to positions to which they could have been reasonably redeployed. The applicants sought immediate advice and assistance from their Union to challenge their dismissals.

[34] In response to my concerns as to the 11-12 days between the applicants contacting the Union and the filing of their applications, Mr Peddie made oral submissions to the effect that the Union required further detailed information, particularly about position descriptions. This took the best part of a week to collect and assess. The Union wanted to accurately understand the circumstances surrounding the restructure and the applicants’ redundancies.

For the respondent

[35] Ms A Paterson helpfully set out the applicable statutory provisions in respect to these applications and identified the relevant authorities when addressing each of the criteria in s 394(3) of the Act. In doing so, she concluded that the Tribunal would not be satisfied that there were ‘exceptional circumstances’ justifying extensions of time being granted. She noted that the delay was 40 days since the terminations of employment. Ms Paterson said that the applicants were fully aware of their redundancies and the reasons for them on 4 April 2012. The respondent’s evidence was that the positions said to have been available were filled prior to the restructure and one of these positions required specialist skills not possessed by the applicants. Even on the applicants’ own evidence, there was no reasonable explanation for the delay in filing their applications after they had contacted the Union.

[36] Ms Paterson added that the applicants took no direct action to contest their dismissals with the respondent until the filing of their applications. She put that the respondent would be prejudiced in having to spend significant monies in defending the claims. In addition, the respondent’s circumstances have changed since the dismissals.

[37] As to the merits of the applications, Ms Paterson put that the applicants cannot succeed in circumstances where :

a) the respondent had been going through a well communicated restructure of the business;

b) the respondent had been considering making the applicants redundant for a number of months;

c) the applicants’ positions are no longer performed by anyone because of changes in the operational requirements of the respondent’s enterprise; and

d) redeployment of the applicants was not reasonable in the circumstances.

[38] Ms Paterson argued that a dismissal cannot become unfair based on matters that occur after the dismissal has taken effect. She put no submissions on differential treatment of persons in a similar position to the applicants.

[39] In oral submissions, Ms Paterson noted that it was quite common for employers, when undertaking a restructure, to pay out periods in lieu of notice and for employees to leave, rather than work out their notice.

[40] As to the delay in filing their applications after contacting the Union, Ms Paterson said it was open to the applicants to file their applications themselves. Even so, the applicants took about a week to collect the information. Ms Paterson submitted that the applicants did nothing to dispute their dismissals with their employer after the 5 April 2012, when they obviously knew they had been dismissed.

[41] Ms Paterson reiterated the circumstances related to the filling of vacant positions by reliance on Ms Lantry’s evidence and said that the applications have no merit as they were genuine redundancies. In fact, other employees had been made redundant at the same time, or in the context of process spanning some 12 months.

In reply

[42] Mr Peddie conceded that the Union could have been quicker in making the applications, but he explained that the Union had wanted to obtain all the relevant information from both Coffs Harbour and Brisbane before doing so. In any event, the evidence was that two of the applicants provided the information within 2 or 3 days and the other, did so within a week.

[43] Mr Peddie said that while some of the prospective witnesses have left the respondent’s employ, they have indicated a willingness to give evidence in the future and that there is little evidence of any real prejudice to the respondent if the applications were accepted.

CONSIDERATION

Statutory framework and relevant principles

[44] The statutory provisions which empower FWA to consider ‘out of time’ unfair dismissal applications is relevantly set out at s 394(3) as follows:

(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.

[45] Both parties accepted that the meaning of the expression ‘exceptional circumstances’ has been authoritively determined by the Full Bench of FWA in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. Although that decision dealt with the expression under the Act’s General Protection provisions, it has similar force and effect under the Act’s Unfair Dismissal provisions. There the Full Bench said at para 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.’

See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251.

[46] At this point, I note that Ms Paterson cited some 16 decisions of FWA in respect to ‘out of time’ applications. While none of these decisions are directly on point, they are nevertheless illustrative of the general proposition that the meaning of ‘exceptional circumstances’ and the balancing of the matters FWA is required to take into account in such matters, will very much depend on the specific facts and circumstances of each case. It is to those matters, in the context of s 394(3) of the Act, to which I now turn.

Reasons for the delay

[47] All of the applicants said that they would not have challenged the genuineness of their redundancies, had it not been for the information they received from various sources, that other persons had been employed very soon after they were made redundant, to perform the same or similar duties they had previously undertaken.

[48] Having observed each of the applicants’ in the witness box, I have no doubt as to their sense of grievance, shock and dismay at having learnt of this information. Each of them had years of unblemished and loyal service. It was not suggested otherwise. Whether the information they received was correct or not (and I am not required at this stage to make any findings in this respect) does not decisively determine this matter.

[49] In my judgement, and based on the uncontested evidence, there was at least a prima facie case of their suspicions being reasonably held. The evidence makes clear that:

a) the announcement of the need to restructure the business was made on 2 April 2012;

b) the three applicants were told of their redundancies two days later and required to leave their employ the next day; and

c) there was no real opportunity to explore and consider any redeployment alternatives, nor could there possibly have been in such a short time frame.

[50] Of greater doubt is whether the positions filled by the new employees involved the same or similar tasks, functions and responsibilities as those positions which were made redundant. The respondent strenuously maintained that they were different roles and, in any event, they were vacancies which existed and were well known before the restructure. Of course, a finding of a lack of genuineness in respect to the redundancies imputes another, perhaps unstated, or even unlawful reason, for these employees being selected for redundancy. As I said earlier, I am not in a position to make any findings in this regard. On the other hand, it does seem incongruous that in a climate of restructure borne by difficult economic circumstances, that the respondent would pay over $100,000 in termination payments to three long serving employees just to remove them for some nefarious or unstated purpose. Moreover, it is not entirely clear that if the redundancies were not genuine, then what was the motivation for the dismissals; although I note that Mr Cross speculated that there were other reasons for his dismissal (see para 26).

[51] In my view, this is a rare and unusual case. I am satisfied that an honestly and reasonably held belief that an earlier redundancy may not have been genuine, and the belief is based on plausible information, may constitute ‘exceptional circumstances’ for the purposes of s 394(3) of the Act. It follows that I reject Ms Paterson’s submission that a dismissal cannot be unfair based on matters that occur after the dismissal took effect.

Whether the person first became aware of the dismissal after it had taken effect

[52] Ms Paterson established in cross-examination that each of the applicants knew and accepted that they had been dismissed on 5 April, 2012. This was hardly surprising, but misses the point. However, in the unusual circumstances of the case, these facts are a neutral consideration in this matter.

Any action taken by the person to dispute the dismissal

[53] The evidence established that each of the applicants had their suspicions aroused and corroborated by others on or around 4 May 2012. In Mr Payne’s case this occurred earlier when he coincidently learnt of a person being employed by the respondent while on a cruise. Obviously, he was not in a practical position to verify the information until his return.

[54] The fact is that once the applicants had been provided sufficient information to confirm their suspicions, they took immediate action to challenge their dismissals through their Union. This is a highly relevant consideration in this matter. Once having done so, I do not accept that they can be burdened with any criticism for any subsequent delay in filing their applications.

[55] In this respect, it was not disputed that it was a further 11-12 days before their applications were filed. Mr Peddie made appropriate concessions in this respect. He submitted that it took some time to request and obtain further information from the applicants and all of the applicants assiduously applied themselves to that task. While there might be legitimate criticism as to the further delay of 11-12 days, it is certainly not a criticism that can be sheeted home to the applicants. This a telling factor in the exercise of my discretion under s 394(3) of the Act.

[56] As I explained to Mr Peddie, the filing of an unfair dismissal application, given the 14 day deadline, is akin to an insurance policy. Further details and information will necessarily be gathered subsequently. As an aside, I just do not understand why parties choose to wait in such circumstances. After all, the forms and the application are simple and general in nature and can be readily downloaded from the FWA website. Applications can always be discontinued, at any stage, if the Union came to the conclusion that the claims were unmeritorious. In any event, I consider the applicants to be entirely blameless in this regard. Unfortunately, it follows that a finding of representative error, at least for the 11-12 days after the applicants had contacted the Union, is one which is open to the Tribunal and I find accordingly. I refer to what I said in Prowse v Rivalea (Australia) Pty Ltd [2011] FWA 8497 at paras 13-14:

‘[13]In my opinion, the Union has properly conceded that it bears the complete responsibility for failing to lodge the applicant’s application for relief from unfair dismissal, within the prescribed time frame. This concession plainly constitutes the notion of ‘representative error’ for which the applicant cannot be held responsible. There is no doubt that ‘representative error’ may constitute ‘exceptional circumstances’ for the purposes of s.394(3) of the Act. In this regard, I refer to what a Full Bench said in Davidson v Aboriginal & Islander Child Care Agency Q0784, 12 May 1998:

“(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”.

See also Clark v Ringwood Private Hospital (1997) 74 IR 413. I also note and respectfully adopt the comments of Lawler VP in McConnell v A & PM Fornataro t/a Tony’s Plumbing Service [2011] FWAFB 466, where His Honour said at para 66:

“It needs to be born [sic] in mind that, on the material before us, it is more likely than not that Mr McConnell was personally blameless. He commenced his s.394 within time in good faith and pursued it in good faith. His decision to discontinue his s.394 application and bring a s.365 application was likely done by him in good faith on the basis of expert advice. Lay persons should not be regarded as acting in a blameworthy fashion when they act on the advice of an expert that they retain for the purpose of giving expert advice”.

[14]In my view, it would be a miscarriage of justice for the applicant to forfeit his opportunity to challenge his alleged unfair dismissal in circumstances where his Union representative/s failed to lodge his s.394 application within time. To use the words of Lawler VP in supra above, the applicant was ‘personally blameless’. Plainly, the application of the principles of ‘representative error’ must apply irrespective of whether the defaulting representative is a legal practitioner or a Union official.’

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

[57] I do not apprehend there to be any additional prejudice to the employer; save for the usual time, cost and inconvenience of defending the claims of unfair dismissal at a later time. The period of time of delay is not overwhelming as to make witness recollections problematic. This is a neutral factor in this case. In any event, I consider these are cases which readily lend themselves to a conciliated settlement.

Merits of the applications

[58] As I have already indicated, I am not in a position to make conclusive findings on the merits of the applications as to the genuineness of the applicants’ redundancies. On the other hand, I am not satisfied that the applicants’ cases are so manifestly untenable or hopeless as having no prospects of success. Accordingly, this is a factor which weighs in favour of the exercise of my discretion towards the applicants’ corner.

Fairness as to other person or persons in a similar position

[59] All of the applicants expressed shock at the speed of the process; from the Chief Executive’s announcement to their actual dismissal - some 4 days. Moreover, their evidence was that they do not recall other redundancies proceeding with such alacrity, or in the same way. There was no specific evidence as to how other redundancies have been handled by the respondent. However, prima facie, at least, there is room for conjecture that this restructure was handled in less than the usual way. This is also a factor which tells in support of the exercise of my discretion in the applicants’ favour.

[60] For the aforementioned reasons, I am satisfied that the applicants have established ‘exceptional circumstances’ as contemplated by s.394(3) of the Act, such as to warrant an extension of time being granted to allow for the lodgement of their applications outside the 14 day time limit. An order to that effect will be issued contemporaneously with this decision.

The substantive applications will be remitted to the Unfair Dismissal Unit of FWA for reallocation to a Fair Work Conciliator.

DEPUTY PRESIDENT

Appearances:

Mr D Peddie, Industrial Officer, FSU for the applicants

Ms A Paterson, Solicitor for the respondent

Hearing details:

2012

COFFS HARBOUR

28 August

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