Ryan Musiello v Racing & Wagering Western Australia

[2016] FWC 5437

[2016] FWC 5437

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ryan Musiello
v
Racing & Wagering Western Australia
(U2016/5965)

COMMISSIONER CRIBB MELBOURNE, 11 AUGUST 2016

Application for relief from unfair dismissal - jurisdiction - extension of time.

[1] Mr Ryan Musiello (the Applicant) has made an application for an unfair dismissal remedy in relation to his dismissal by Racing and Wagering Western Australia (RWWA, the Respondent) on 5 February 2016. The application was made under section 394 of the Fair Work Act 2009 (the Act).

[2] The application was lodged outside the statutory time limit, on 14 April 2016, when it should have been lodged by 27 February 2016. In addition, the RWWA filed a jurisdictional objection on the basis that Mr Musiello was not an employee and so therefore was not dismissed. 1

[3] There was a hearing of Mr Musiello’s extension of time application on Thursday 9 June 2016. Mr Musiello represented himself whilst the Respondent was represented by Ms B Pole, solicitor. This decision deals with the extension of time application.

1. Legislative framework

[4] Section 394 of the Act sets out the requirements for making an application and also the basis on which an extension of time may be granted. Section 394(3) is as follows:

“(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.”

[5] I will deal with each of the factors in turn.

Section 394(3)(a) - reasons for the delay

Evidence

[6] It was Mr Musiello’s evidence that:

• Within a week of the end of his work relationship (on 5 February 2016), he contacted an acquaintance who worked in employment law and sought advice about how to proceed with making an unfair dismissal application. 2



• That person told him to lodge an application in the Western Australian Industrial Relations Commission (WAIRC) as the RWWA was a State Government owned organisation. 3



• The acquaintance asked to remain anonymous because it could be deemed a conflict of interest with their current employer. Therefore, he kept his agreement with his acquaintance and has not put in a statement. 4



• He did not formally engage his acquaintance to act on his behalf. 5



• Sometime after 12 February 2016, on 2 March 2016, he sought additional legal advice from MDC Legal but it was not solely about this matter. It was also advice on how to fill out the form with the WAIRC. During that meeting, he did clarify and confirm that lodging in the WAIRC was the correct thing to do. 6



• He had wanted a second opinion as he was unsure that the advice from his acquaintance was correct. 7



• He was 90% sure that he was going down the correct avenue as that was what his own research had come up with. The RWWA was state-owned so he assumed that the WAIRC would be the correct jurisdiction. 8



• In his research on the internet, he had probably come across the Fair Work Commission (FWC) before the WAIRC. He was aware that there was a time limit but, as he thought that the FWC was not the governing body, he did not see it as an issue. His pressing deadline was the 28 days for the WAIRC and he submitted his application within that timeframe. 9



• He did seek clarification from the MDC Legal lawyer but it was more to have someone hold his hand and make sure that he was filling everything out correctly and doing everything by the book. 10 The lawyer said that it was more than likely that the WAIRC was the correct governing body but, for an extra fee and more time, they would be able to research it more as it was complicated in legal terms.11



• As the lawyers were much more expensive than he had expected, he just took the two pieces of advice and his own thinking that the WAIRC was the correct jurisdiction. 12



• The reason for the gap between contacting his acquaintance and seeing the lawyers on 2 March 2016 was that it took quite a long time to get his head around the forms he had to fill out and the process. This was because he was not a lawyer and it was all new to him. He is a creative and so this type of process was a little daunting and difficult for him. 13 It takes him a long time to make sure that everything is correct as he would not say anything that was not the truth.14



• He lodged an application in the WAIRC on 8 March 2016. He found out from the Respondent’s lawyer that he had lodged in the incorrect jurisdiction on 29 March 2016. 15



• Between 29 March 2016 and 5 April 2016, he tried to speak to the WAIRC to make sure he was getting the right advice from the Respondent’s lawyer. He had gone into the WAIRC and had spoken to someone who had something to do with his case. She was unsure and, as she could not give advice, suggested that he ring Wage Line. He rang Wage Line but said that Wage Line was not of any assistance. He had just assumed that the Respondent’s lawyer was correct and had done a search on the Respondent’s new website and found the term “Fair Work Act”. He had then submitted his application to the FWC. 16



• The reason for the delay was that he had sought advice from legal experts who confirmed his thinking that he was going through the correct body. He went to the wrong governing body which resulted in his application to the correct governing body being late. 17



• On two occasions, he had been given incorrect legal advice. Because of that incorrect legal advice, he had lodged an application in the wrong jurisdiction. 18



• He had made an honest, unintentional mistake in lodging an application in the wrong jurisdiction. 19



• He found it easier to fill out the FWC’s forms because he had covered a lot of the information in completing the WAIRC forms. 20



• He did not have an exact return date, though he did have a six month visa in America. He had no idea what he would be doing after he left America in mid October 2016. 21



• His preference would be to hold any further hearing by Skype. If he had to fly back to Australia, that would not be ideal but would definitely be the way forward. In relation to lodging documents, he has a lot of family and friends in Australia who would be able to assist. Otherwise, he could send them internationally. He also had access to a computer if needs be. 22

Submissions

[7] It was contended by Mr Musiello that:

• He was unaware that he formally had to engage a legal representative. 23



• He did rely on his acquaintance’s advice. When he spoke to MDC Legal, it was not just a meeting to clarify if it was the FWC or the WAIRC. It was also a meeting to make sure that he was on the right path which he was almost certain that he was and for MDC Legal to help him fill out the form and to assist him put some of his thoughts into slightly more legal sounding language. 24



• He was aware of the 21 day timeframe but he was almost certain that the WAIRC was the correct body for him to go through. 25

[8] The RWWA submitted that:

• It could not be considered representative error where the Applicant did not actually formally engage somebody to act as his representative, he just asked some advice of an acquaintance. This was because the acquaintance was not acting in the capacity of representative at the time they gave Mr Musiello that advice. 26



• Also, it could not be considered representative error when it was Mr Musiello’s evidence that he was not sure that the opinion he got from his acquaintance was correct and he wanted a second opinion. It would be difficult for the Commission to find that there was representative error based on the conversation that Mr Musiello had with his acquaintance when Mr Musiello says that he did not formally rely on that advice and sought a second opinion. 27



• If Mr Musiello wanted to rely on the second piece of advice he took from a lawyer (MDC Legal), it should be noted that that advice was taken on 2 March 2016. It was said that the time limit for lodging an application in the FWC expired on 27 February 2016. Therefore, Mr Musiello cannot rely on the advice from MDC Legal as representative error because that advice was taken after the 21 day time limit had expired. 28



• Mr Musiello was aware of the 21 day time limit prior to the limit expiring but did not lodge an application in the FWC. It was said to be Mr Musiello’s evidence that he did some research himself following the discussion with his acquaintance and, in the course of that research, he became aware that there was a 21 day time limit to bring an application. 29



• This is not a situation where the Applicant is blameless. The Commission was referred to the Full Bench decision in Robinson v Interstate Transport Pty Ltd 30 (Robinson) which was said to be authority for the proposition that there can be no sort of conduct by the Applicant which caused the delay. In this matter, it was stated that there was conduct by the Applicant that caused the delay in the sense that the Applicant did not lodge this application within the 21 day timeframe when he was aware of that timeframe.31

Section 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[9] It was common ground that Mr Musiello became aware of the dismissal at the time that it took effect. 32

Section 394(3)(c) - any action taken to dispute the dismissal

Evidence

[10] It was Mr Musiello’s evidence that:

• He went to the Human Resources office and spoke to Mr Thomas and told him that he was unhappy and that he did not agree with the reason he had been given for his dismissal. 33



• He asked Mr Thomas if their decision was final and Mr Thomas said Yes. Mr Thomas told him that he could make an appointment with the Head of Wagering and Marketing, Mr Saunders. 34



• Mr Thomas told him that, putting his concerns in writing, was unlikely to change the decision. 35



• Therefore, he did not write to the Head of Marketing. Rather, he used what he thought was the correct avenue for this dispute. 36



• He had lodged an application in the WAIRC which was disputing his dismissal. 37

[11] It was Mr Thomas’ evidence that:

• He recalled the conversation with Mr Musiello on 5 February 2016. Mr Musiello was accurate in regard to his statement that he (Mr Thomas) had said that it was unlikely that there would be any chance of a change in the decision. 38



• The context was that Mr Musiello had asked him a direct question as to whether there was likely to be any change in the decision. 39



• He had also said that, at the end of the day, it was not a decision that he was responsible for making. This was why he had referred Mr Musiello to the General Manager of Wagering, Mr Saunders. 40

Submissions

[12] It was submitted by Mr Musiello that he followed Mr Thomas’ advice that it would be unlikely to make any difference if he contacted Mr Saunders. He thought also that it could harm his unfair dismissal case if he did that and, if it was not going to make any difference, then what was the point in him trying. He might as well focus his efforts on his dismissal. 41

[13] It was submitted by the Respondent that:

• Mr Thomas’s evidence was that there was a discussion between himself and Mr Musiello on 5 February 2016 during which Mr Thomas made it clear that he was not the decision maker and so pointed Mr Musiello towards Mr Saunders who was the appropriate person. It was stated that there was no evidence before the Commission that Mr Musiello subsequently contacted Mr Saunders. It was contended, therefore, that, following that discussion on 5 February 2016, Mr Musiello took no action to contest the termination of his engagement. 42



• Following the discussion with Mr Thomas on 5 February 2016, the Applicant did not take any action in the form of contacting Mr Saunders to dispute the ending of his engagement. 43



• The Respondent did not receive any correspondence from the Applicant about the termination of his engagement until Mr Musiello’s WAIRC unfair dismissal claim was received on 14 March 2016. 44



• The Applicant cannot rely on lodging a claim in the WAIRC as evidence he took steps to dispute the termination of his engagement. 45

[14] On the basis of the evidence, I find that, prior to lodging a claim in the FWC, Mr Musiello spoke to Mr Thomas on the day of his termination and disputed his termination; Mr Musiello spoke with two different lawyers and lodged an application in the WAIRC. The reason Mr Musiello did not take up Mr Thomas’ suggestion that he make an appointment to see Mr Saunders was due to being advised that it would be unlikely to result in a change in the decision.

Section 394(3)(d) - prejudice to the employer

[15] It was submitted by Mr Musiello that there was no reason why the lateness in lodging his application would have impacted negatively on the Respondent. The RWWA had been notified of his claim in the WAIRC and so were aware that he was challenging his dismissal prior to lodging in the FWC. 46

[16] Mr Musiello apologised for having lodged two applications. It was stated that this was unintentional and not done on purpose. It was said to have also increased the cost for himself and has been hugely inconvenient. There was said to be no benefit to him to do that and so it should be obvious that it was an honest mistake. 47

[17] It was stated by Mr Musiello that, whilst he had a preference for any future proceedings to be conducted via Skype, he would also do whatever it took to ensure that everything was fair and just. This including ensuring that the Respondent is not prejudiced. 48

[18] The RWWA contended that it would be prejudiced if there were any further proceedings where there were disputed facts and issues of credit and Mr Musiello was not available in person to give his evidence and undergo cross examination. 49

[19] Further, the Respondent argued that it was prejudiced by the late lodgement of the application in the FWC in circumstances where Mr Musiello had already lodged a claim in the WAIRC. This was said to have resulted in the Respondent incurring legal costs and dedicated time and resources to respond to two unfair dismissal applications (one in the WAIRC and the second one in the FWC). 50

[20] As a result of Mr Musiello having lodged a claim in the WAIRC, prior to lodging this application (correctly) in the FWC, the RWWA had incurred additional legal costs and expended time and resources over and above those normally required when one unfair dismissal application only is made. In this sense, there has been prejudice to the Respondent.

Section 394(3)(e) - merits of the application

[21] It was agreed that this factor is a neutral factor due to the disparities between Mr Musiello’s version of events and the Respondent’s account of the same events. 51

Section 394(3)(f) - fairness as between the person and other persons in a similar position

[22] During the hearing, the Commission found that this factor is not relevant in this application. 52

Section 394(3) - are there exceptional circumstances?

[23] Mr Musiello submitted that the situation is out of the ordinary, special and uncommon.

[24] It was submitted by the RWWA that Mr Musiello’s misunderstanding about which jurisdiction he should bring his claim in is not out of the ordinary course, unusual special or uncommon. Therefore, the Respondent argued that it is not an exceptional circumstance that would warrant an extension of time being granted. 53

2. Considerations and conclusions

[25] Under section 394(3) of the Act, the FWC can extend the time for the lodging of an unfair dismissal application 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 section 394(3)(a) - (f). Only if the Commission is satisfied that there are exceptional circumstances can the Commission then exercise its discretion to decide to grant an extension of time.

[26] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 54(Nulty) 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.” 55

[27] The Full Bench decision of Clark v Ringwood Private Hospital 56 (Clark) although it was under previous legislation, set out the approach to be followed where the late lodgement of an application was due to representative error. Clark was cited in Davidson v Aboriginal & Islander Child Care Agency57 (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 carryout 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.”

[28] I respectfully adopt the approach by the Full Bench in Nulty in relation to the meaning of exceptional circumstances and the decision in Clark regarding representative error.

[29] It was argued by Mr Musiello that the reason for the delay was that he had been given incorrect legal advice which had resulted in his lodging an application in the wrong jurisdiction. Within a week of his dismissal, Mr Musiello spoke to an acquaintance who was a workplace relations lawyer. It was Mr Musiello’s evidence that he did not formally retain this person to be his legal representative. It is understood that this person wished to remain anonymous in relation to this application. This is accepted but the consequence of this anonymity is that the Commission has no evidence from this person in relation to the particular conversations that they had with Mr Musiello in this regard. Therefore, the Commission is unable to include the acquaintance in terms of Mr Musiello’s representative error argument.

[30] On 2 March 2016, Mr Musiello met with MDC Legal for assistance with filling in the forms for the WAIRC. During the meeting, Mr Musiello also checked as to whether the WAIRC was the correct jurisdiction. Mr Musiello said that he was 90% sure that he was on the right track as that was what his research had come up with. However, he wanted a second opinion. Mr Musiello was advised by MDC Legal that it was more than likely that the WAIRC was the correct body. Mr Musiello was offered the option of making certain that the WAIRC was the correct place. For an extra fee, MDC Legal would research the question regarding jurisdiction as it was complicated in legal terms. Mr Musiello declined to pay the extra fee as the lawyers were much more expensive than he had expected.

[31] As can be seen from the quote from the Clark decision in paragraph [27] above, the late lodgement of an application due to representative error may be grounds for an extension of time. 58 In Clark, a distinction was made between a delay caused by the representative where the employee is blameless and when the employee has contributed to the delay.59 The actions of the employee were said to be the central consideration in deciding whether the explanation of representative error is acceptable.60

[32] In this matter, I have not been persuaded that this is a case of representative error. Mr Musiello made a decision and chose not to instruct MDC Legal to make certain that the WAIRC was the correct jurisdiction in which to lodge his application. As Mr Musiello did not take up the option of making sure that the WAIRC was the correct jurisdiction, Mr Musiello contributed to the subsequent delay. If Mr Musiello had done so, the advice would have been to lodge an application in the FWC and not the WAIRC. If Mr Musiello had not been given the option of making sure or, having taken up the option, the advice was still to lodge in the WAIRC, it well may have been a case of representative error.

[33] In addition, the timeframe within which the events occurred do not indicate a sense of urgency in lodging the application nor the lodging of an application being a high priority. The time between Mr Musiello speaking with his acquaintance and meeting with MDC Legal was around two and a half weeks. Following meeting with MDC Legal, Mr Musiello lodged the WAIRC application six days later. After having been advised by the Respondent’s lawyer that he had made an incorrect application in the WAIRC, a week elapsed before the FWC application was made.

[34] Further, Mr Musiello described himself as a “creative” and explained that he found the legal process difficult and a bit daunting. This is accepted but it needs to be noted that Mr Musiello is highly educated in that he holds a university degree in photography and a BA Honours degree. With respect to Mr Musiello’s contention that, although he was aware of the FWC’s 21 day time limit, he was working within the WAIRC’s 28 day time limit, this is accepted.

[35] It is acknowledged that Mr Musiello is committed to this application and that he feels very strongly that his dismissal was unfair. However, Mr Musiello’s passion about the application does not appear to have been matched by his actions in complying with the process and his choice not to make certain that he was lodging his application in the right jurisdiction. Having balanced all of the various issues, I have not been persuaded that there is a reasonable explanation for the delay.

[36] It has already been found, at paragraph [9] above, that Mr Musiello was aware of the dismissal at the time that it took effect.

[37] Mr Musiello did take some actions to dispute the dismissal. I have found, at paragraph [14] above, that Mr Musiello spoke to the General Manager Human Resources, Mr Thomas, on the day he was dismissed and challenged the reason for his dismissal. Mr Musiello’s explanation for why he did not contact Mr Saunders is accepted. Mr Musiello then spoke to two different lawyers which resulted in an application being lodged in the WAIRC.

[38] In relation to prejudice to the employer, it is acknowledged that, prior to this application, the employer had already had to deal with a claim in the WAIRC. This had necessitated the expenditure of time and resources over and above what is normally required when only one unfair dismissal claim is made. However, by the time the employer received the FWC application, it was on notice that Mr Musiello was challenging his dismissal and presumably, the factual basis for both claims is the same. The prejudice suffered by the Respondent, however, is not sufficient to weigh against any potential finding of exceptional circumstances.

[39] As indicated in paragraph [21], the merits of the application are a neutral consideration for the reasons outlined above.

[40] It has previously been found at paragraph [22] that the issue of fairness as between Mr Musiello and other persons in a similar position is not a relevant factor in this application.

[41] Having considered all of the matters in section 394(3)(a) - (f), I am not satisfied, on balance, that there are exceptional circumstances which justify an extension of time. Therefore, I decline to grant the extension of time sought.

[42] Accordingly, the application is dismissed. An order 61 to this effect will be issued separately.

Appearances:

R Musiello appeared on his own behalf

B Pole of Minter Ellison for the Respondent

Hearing details:

2016.

Melbourne, Perth and America (video and Skype hearing):

June 9.

 1   Exhibit R1

 2   Transcript PN 84 and Exhibit A1 at Number 4

 3   Exhibit A1 at Number 4

 4   Transcript PN 118

 5   Ibid PN 138

 6   Ibid PN 85, 88, 90, 93 and 141

 7   Ibid PN 140 - 141 and Exhibit A1 at Number 4

 8   Ibid PN 89

 9   Ibid PN 135 and Exhibit A1 at Number 4

 10   Ibid PN 89

 11   Ibid PN 91 - 92

 12   Ibid PN 91

 13   Ibid PN 95 and 128

 14   Ibid PN 128

 15   Ibid PN 97

 16   Ibid PN 112 - 113

 17   Ibid PN 114

 18   Ibid PN 282 and Exhibit A1 at Number 5

 19   Ibid PN 121 - 122

 20   Ibid PN 128

 21   Ibid PN 142 - 143

 22   Ibid PN 142 - 145, 148, 167 and 174 - 175

 23   Ibid PN 325

 24   Ibid PN 325 - 326

 25   Ibid PN 327

 26   Ibid PN 312

 27   Ibid PN 314

 28   Ibid

 29   Ibid PN 315

 30   [2011] FWAFB 2728

 31   Transcript PN 316

 32   Ibid PN 44 - 45 and 47, Exhibit A1 at Number 2 and Exhibit R1 at paragraphs 1(b) and (c)

 33   Exhibit A1 at Number 5

 34   Ibid

 35   Ibid and Transcript PN 118

 36   Transcript PN 118

 37   Ibid PN 121

 38   Ibid PN 253

 39   Ibid

 40   Ibid

 41   Ibid PN 328

 42   Ibid PN 318

 43   Ibid and Exhibit R1 at paragraph 1(e)

 44   Exhibit R1 at paragraph 1(e)

 45   Ibid

 46   Exhibit A1 at Number 6

 47   Transcript PN 122

 48   Ibid PN 329

 49   Ibid PN 320

 50   Exhibit R1 at paragraph 1(g)

 51   Transcript PN 321 and 171 - 191

 52   Ibid PN 51

 53   Ibid PN 317 and 321

 54   [2011] FWAFB 975

 55   Ibid at [13]

 56 (1997) 74 IR 413

 57 (1998) 105 IR 1

 58 Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony’s Plumbing Service (2011) 202 IR 59 [35]; cited in Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728

 59   Ibid

 60   Ibid

 61   PR583827

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