Ross Robertson v Risk Insure Pty Ltd T/A Risk Insure

[2016] FWC 7762

[2016] FWC 7762

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ross Robertson
v
Risk Insure Pty Ltd T/A Risk Insure
(U2016/11003)

COMMISSIONER PLATT ADELAIDE, 25 OCTOBER 2016

Application for relief from unfair dismissal - extension of time not granted - application dismissed.

[1] Mr Robertson lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Risk Insure Pty Ltd T/A Risk Insure (Risk Insure).

[2] The application was lodged on behalf of Mr Robertson by Ms Purdy from the Australian Services Union (ASU) by email at 4:48 pm on Monday 5 September 2016.

[3] That application advised that Mr Robertson’s dismissal took effect on 12 August 2016 and provided the following reason for the late lodgement:

“1.4 Representative Error”

[4] On 6 October 2016, my Associate corresponded with both Mr Robertson and Risk Insure and advised that the extension of time issue would be considered through a telephone conference on 25 October 2016. Substantial information about the extension of time issue was provided to the parties. Mr Robertson was directed to provide an outline of argument, statements and any documents by 18 October 2016. Risk Insure was invited to submit documents in reply by 24 October 2016.”

[5] The Employer’s Response to the application indicated that Risk Insure opposed the extension of time and that the dismissal was by way of genuine redundancy.

[6] The written submissions and statements of Mr Robertson and Ms Purdy filed on behalf of Mr Robertson are summarised as follows:

● Mr Robertson was dismissed from his position of Claims Consultant by Risk Insure on 12 August 2016;
● on the day of the dismissal, Mr Robertson contacted the Ms Purdy and discussed the dismissal;
● Mr Robertson met with Ms Purdy on Monday 15 August 2016 to discuss the possibility of making an unfair dismissal claim;
● on 15 August 2016, Ms Purdy suggested that Mr Robertson consider his position and contact the ASU within the 21 day time limit if he wanted to go ahead with making the claim;
● Mr Robertson delayed making the claim to ensure any potential employer would be given a good reference;
● in the week commencing 29 August 2016, Mr Robertson secured casual employment and began to feel confident that he would continue in that role (the implication being that he would not need a reference);
● on or about 29 or 30 August 2016, a relative in NSW moved into hospice care which distracted Mr Robertson;
● in the same week, Mr Robertson was advised a colleague at Risk Insure had taken on a new role, this made Mr Robertson believe that his redundancy was not genuine;
● Mr Robertson contacted the ASU on Friday 2 September, and asked that they lodge his claim. Ms Purdy was on an RDO. The ASU representative advised Mr Robertson that they would “complete everything on Monday when Ms Purdy was back in;”
● on Monday 5 September, 2016, Ms Purdy attended work and received an email concerning the Mr Robertson’s call on the previous Friday. Ms Purdy contacted Mr Robertson who expected that the claim had been lodged on Friday; and
● Ms Purdy lodged the application on Monday 5 September 2016.

[7] Risk Insure did not file written submissions. At the hearing, Risk Insure contended that:

● the role that Mr Robertson referred to being filled was a vacancy that had occurred prior to the dismissal;
● the redundancy was genuine and due to the off-shoring of the work performed by Mr Robertson and other persons in like roles;
● in February 2016, Risk Insure had advised impacted employees of the pending off-shoring. The actual date of implementation was not determined until overseas recruitment and training has been completed;
● Risk Insure made its decision to implement the change on 10 August 2016; and
● Risk insure consulted with employees (including Mr Robertson) and provided information in writing on 12 August 2016.

[8] A sound file record of the telephone conference was kept.

[9] At the conference, Mr Cowen on behalf of the ASU reiterated the written submissions.

Consideration

[10] 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.”

[11] Mr Robertson’s unfair dismissal application was made 3 days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended.

[12] I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 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.”

[13] Mr Robertson asserts that the delay was occasioned by representative error. I do not see any evidence of error by the ASU. The ASU advised Mr Robertson of the time limit and him to respond prior to its expiration. It was for Mr Robertson to consider his position, and advise the ASU in sufficient time for them to lodge the application within the time limit was informed of on 15 August 2016.

[14] Mr Robertson stated that he chose not to lodge his application immediately so as to ensure a good reference from his employer. Mr Robertson was then distracted by the illness of his interstate relative and his focus was on his newly found casual employment.

[15] Regrettably Mr Robertson left his decision to the last minute, on a day that Ms Purdy was not working. Mr Robertson was advised by the ASU representative that the application would be completed on Monday, he was aware that they was outside the time limit, yet did not raise that matter with the ASU representative who took his telephone call. In my view the delay is attributable to Mr Robertson not the ASU. There is no basis for Mr Robertson to reasonably expect that his application would have been lodged on the Friday based on his statement.

Whilst the last week prior to the time limit expiring was a busy week for Mr Robertson, it would only have taken 5 minutes for him to call the ASU and instruct them to lodge his claim. I do not accept that the distractions described prevented him from instructing the ASU in a timely fashion.

[16] The long standing approach of the Commission is that representative error may represent an acceptable reason for the delay and, hence in terms of the current legislative requirement, an exceptional circumstance. That approach is founded on the principle that, if an applicant did not contribute to a delay caused by his or her representative, it would not be fair to hold that error against the applicant.

[17] I have reviewed Mr Robertson’s circumstances in the context the approach taken in the decision in M N Robinson v Interstate Transport Pty Ltd . In that matter the Full Bench detailed the approach to be taken, in the following terms:

“[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.”“

[18] The applicant needs to provide a credible explanation for the entire period of the delay. 

[19] Mr Robertson also advised that in the final week before lodgement, he was advised that a former work colleague had secured a new role at Risk Insure and this motivated his lodgement. Mr Robertson was unable to detail when in that final week he ascertained this information. Risk Insure advised that this was not the role previously performed by Mr Robertson but a vacancy that had occurred prior to his dismissal.

[20] Based on the information provided, there does not appear to be any satisfactory explanation for the delay between 15 August 2015 and 2 September 2016, other than the prevarication and inaction of Mr Robertson.

[21] There is no evidence of Mr Robertson pursuing the matter after 15 August until 2 September 2016

[22] I am not satisfied that the granting of an extension of time would prejudice to the respondent in this matter.

[23] In terms of the merits of the application, from the information provided to me Mr Robertson has not provided any evidence which challenges the genuineness of the redundancy. Risk Insure appear to have changed their organisational structure, consulted with impacted employees well in advance, provided information in writing and considered redeployment opportunities, consequently, I have regarded the merits of the matter as a factor which weighs against Mr Robertson.

Conclusion

[24] For the reasons I have set out above, I am not satisfied that Mr Robertson’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order  reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

S Cowen, of the Australian Services Unionon behalf of the Applicant.

R Fletcher and J O’sullivan on behalf of the Respondent.

Hearing (Conference) details:

2016.

Adelaide:

October 25.

<Price code {C}, PR586917>

[2011] FWAFB 975.

Clark v Ringwood Private Hospital (1997) 74 IR 413.

[2011] FWAFB 2728.

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

PR586918.