Samantha Kuhl v Linfox Australia Pty Ltd

[2014] FWC 9135

[2014] FWC 9135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samantha Kuhl
v
Linfox Australia Pty Ltd
(U2014/12297)

COMMISSIONER GREGORY MELBOURNE, 18 DECEMBER 2014

Application for extension of time.

Introduction

[1] Ms Samantha Kuhl was employed by Linfox Australia Pty Ltd (“Linfox”) in July 2013. She was engaged on a casual basis and worked as a storeperson. In January she made a workers’ compensation claim after an incident at work. That claim was later rejected.

[2] Ms Kuhl returned to work the next day, but then required further time off work. She subsequently returned to work on modified duties. She was then informed in April that those temporary modified duties had come to an end and she would only be able to return to work when she provided a medical certificate indicating she was able to return to her substantive role.

[3] On 11 August 2014 Linfox terminated Ms Kuhl’s employment because of her inability to return to her substantive position. Ms Kuhl then sought legal advice and claims “representative error” meant her unfair dismissal claim was not lodged until 5 September 2014, being 25 days after the date of her dismissal, and 4 days after the expiry of the 21 day period provided in the Fair Work Act 2009 (Cth) (“the Act”) for making an unfair dismissal application. She now seeks additional time in which to make her application.

[4] Mr Garry Dircks of Just Relations Consultants was granted leave to appear on behalf of Ms Kuhl under s.596(2)(b) of the Act on the basis it would be unfair to not allow Ms Kuhl to be represented because she would otherwise be unable to represent herself effectively.

The Issue to the Determined

[5] Section 394(2) of the Act provides that an unfair dismissal application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under subsection s.394(3).

[6] Section 394(3) allows an extension of time to be granted if the Commission believes there are “exceptional circumstances” to warrant an exercise of this discretion. It provides:

“(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.” 1

[7] Therefore, are there “exceptional circumstances” existing under s.394(3) to warrant the Commission exercising its discretion to grant Ms Kuhl additional time in which to make her unfair dismissal application?

The Evidence and Submissions

[8] Ms Kuhl said the letter from Linfox terminating her employment was delivered by courier to her home on 11 August 2014. She made contact on that day with a firm of solicitors she had previously dealt with in regard to her workers’ compensation claim. The solicitor she had been dealing with at the firm was Ms Angela Sdrinis.

[9] She said that she spoke to Ms Sdrinis’ assistant about her dismissal, and whether it was an unfair dismissal. She also stated: “I made it clear to her that I wanted advice regarding an unfair dismissal claim and wanted to make a claim.” 2 She said the assistant then asked her to send through “the paperwork,” and she sent the dismissal letter she had received from Linfox to the firm by email that day.3 She said she then “had the expectation that Ms Sdrinis or her staff would have made the unfair dismissal application on [her] behalf.”4

[10] She said she subsequently tried to ring the solicitor’s office on several occasions but was unable to make contact. In addition, her phone calls were not returned.

[11] Ms Kuhl then said that because she had received no response she continued to try and make contact and, finally, on 3 September rang and managed to speak to Ms Sdrinis. She asked what was happening with the unfair dismissal matter and Ms Sdrinis told her she would follow it up with her Union. On 4 September Ms Sdrinis forwarded an email to Ms Kuhl that she had attempted to send previously, but had not been sent or received because it contained the wrong email address. Ms Kuhl said Ms Sdrinis apologised to her for “the mix up.” 5

[12] The email that was finally received by Ms Kuhl from Ms Sdrinis on 4 September is dated Sunday, 17 August 2014 and states under the heading “your claim”:

“Hi Samantha, I have received a notice from the debt collectors and the letter of termination. I am unable to assist you with the termination but I assume the union is dealing with this. If not, you should get onto them asap and ensure that they are onto this because there are time limits with respect to pursuing an unfair dismissal claim. I have written to the debt collectors advising them that we have issued proceedings in your matter and asking them to hold off but if they decide to take action I can’t stop them. Usually however they back off once they are told that the issue is before the courts. I will be in touch again once we have Mr Mangos’ report but in the meantime, don’t hesitate to contact me if you need assistance. Kind Regards,” 6

[13] Ms Kuhl said the email Ms Sdrinis attempted to send on 17 August was not received by her because it contained the wrong email address, having omitted the letter “l” which is contained in her email address between her christian name and surname. (By way of example the reference to her name in the email address should have been “samanthalkuhl,” rather than samanthakuhl, as it was indicated to be.)

[14] Ms Kuhl said on 4 September she made contact with her Union, being the National Union of Workers (“NUW”), and was given the name of the consultant who is now acting on her behalf. She immediately made contact with him and an unfair dismissal application was lodged on her behalf the following day, 5 September 2014.

[15] Ms Kuhl submits this is a clear case of “representative error” and she should be granted additional time in which to make her application. She submits she made contact with the solicitor’s office on the day she received the termination letter, and indicated she wanted an unfair dismissal application to be lodged on her behalf. She was asked to provide a copy of her dismissal letter, which she did. She then attempted to make contact with her solicitor on a number of occasions, but it was not until 3 September that she was able to speak with her.

[16] She submits she had every reason to believe an application had been made on her behalf, within the requisite timeframe, and the “exceptional circumstances” involve the failure of her solicitor to correctly address the email she attempted to send to Ms Kuhl on 17 August 2014.

[17] Ms Kuhl submits the situation is analogous to that considered by Commissioner Bissett in Burgess v General and Window Cleaning Pty Ltd 7(“Burgess”), which also involved “representative error.” That decision also made reference to the decision in Clark v Ringwood Private Hospital8 (“Clark”) in which the Full Bench made reference to the factors to be taken into account in deciding whether “representative error” constitutes an acceptable explanation for delay.

[18] Ms Kuhl also submits she did not delay in responding to her dismissal and the action she took to dispute it involved contacting her solicitor. She also submits there would be no prejudice to Linfox if additional time is granted to make application, given the application was eventually lodged only 4 days after the prescribed 21 day period.

[19] She also submits her unfair dismissal application has merit in that there is no valid reason related to her conduct or her capacity to warrant her dismissal.

[20] Linfox submits, in response, that the Commission cannot be satisfied Ms Kuhl instructed her solicitor to make an unfair dismissal application when she contacted the solicitor’s office on 11 August. It submits she was only seeking advice at that point, and given she was not provided with any advice, she was not entitled to assume an unfair dismissal application had been made on her behalf. In addition, she did not receive confirmation that an application had been made.

[21] Linfox acknowledges that representative error can constitute exceptional circumstances, but only when express instructions have been given by the Applicant, and have not been acted upon by the representative. It refers in this context to the decision in M. N. Robinson v Interstate Transport Pty Ltd 9, which also cited the decision in Clark.

[22] Linfox continues to submit that the “representative error” cannot be an error of failing to file an application in this case, because there is no explicit evidence of clear instructions having been given by Ms Kuhl to Ms Sdrinis to make an application on her behalf.

[23] It also submits Ms Kuhl’s ignorance of the requirement to lodge an application within the 21 day time period does not provide a reasonable basis to enable her to have additional time in which to make application, and she could at any time have sought advice elsewhere about the legal requirements, given the problems she was experiencing in making contact with her solicitor.

[24] Linfox also submits Ms Kuhl’s application is without merit. It submits she was dismissed due to her inability to perform the inherent requirements of her substantive position, and is still unable to do so more than 4 months after her termination, with no present likelihood of being able to return to her former duties. It also submits any issues to do with whether injury was caused at work are considerations for another jurisdiction.

Consideration

[25] In coming to a decision in this matter I am required to take account of each of the matters in s.394(3) of the Act. In addition, the question of what is required to constitute “exceptional circumstances” has been considered in a number of decisions of the Tribunal. The Full Bench in the matter of Nulty v Blue Star Group Pty Ltd 10 concluded:

“[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.” 11

[26] I now turn to deal with this matter by reference to the considerations contained in s.394(3) that I must take account of and the relevant authorities.

(a) the reason for the delay

[27] Ms Kuhl submits “representative error” was the reason for delay. She states she wanted to make an unfair dismissal application, and gave instructions to her solicitor to make an application on her behalf. However, the fact that a subsequent email to her from her solicitor, indicating Ms Sdrinis would not be able to act in the matter, was incorrectly addressed meant she did not receive this advice until after the 21 day period expired. Ms Kuhl submits this situation was compounded by the fact her subsequent attempts to speak with her solicitor were unsuccessful, and her calls were not returned. Linfox submits, on the other hand, the evidence does not actually establish Ms Kuhl gave instructions to her solicitor to make an unfair dismissal application on her behalf.

[28] I am satisfied on balance that the evidence does indicate she gave instructions to her solicitor to make an unfair dismissal application on her behalf. She, firstly, made contact with the solicitor’s office on the same day she received the termination letter from her former employer. She states in her witness statement, “I made it clear to her that I wanted advice regarding an unfair dismissal claim and wanted to make a claim.” 12 She also stated, “I had the expectation that Ms Sdrinis or her staff would have made the unfair dismissal application on my behalf.”13 I am satisfied Ms Kuhl would not have had this expectation if she had not given instructions for a claim to be made on her behalf. This evidence was not challenged in cross-examination.

[29] Ms Kuhl was also asked to forward a copy of her termination letter to the solicitor’s office, which she did. She also acted immediately to have an application made on her behalf when she discovered it had not been lodged.

[30] The Full Bench decision in Robinson has already been referred to. It determined that representative error, in circumstances where an Applicant is blameless, can constitute “exceptional circumstances.” The decision also adopted the earlier approach of Clark, which drew a distinction between circumstances in which an Applicant is “blameless,” and one in which he/she should accept some blame for the delay in lodging.

[31] I am satisfied Ms Kuhl is “blameless” in all the circumstances of this matter. Having consulted her solicitor, and given instructions for an unfair dismissal application to be made on her behalf, she was entitled to believe those instructions would be carried out. Alternatively, if they were not to be acted upon she was entitled to be informed about that situation. She also made repeated attempts to contact her solicitor to obtain an update about what was happening. I do not consider that Ms Kuhl was then required or expected to check whether the application was subsequently filed within the 21 day period. Having given instructions to her solicitor she was entitled to rely upon her solicitor acting in accordance with those instructions.

[32] It is also acknowledged that the “representative error” in this case is not of significant magnitude. It simply involved an inadvertent failure to correctly address an email intended to be sent to Ms Kuhl. However, that mistake was compounded by the fact Ms Kuhl was not able to speak with anyone at the solicitor’s office, or have her calls returned. Nevertheless, despite the fact it was a relatively minor mistake, the consequences for Ms Kuhl were significant in that it was the reason why her application was not lodged within the requisite time period.

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

[33] There is no dispute between the parties that Ms Kuhl was made aware of the dismissal on the day it took effect by means of the letter delivered to her home.

(c) any action taken by the person to dispute the dismissal

[34] Ms Kuhl took action to dispute her dismissal as soon as she became aware that her employment had been terminated.

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

[35] There will always be prejudice to an Employer if an Applicant is granted additional time in which to make application, given this will require the Employer to develop and prepare its response to the application. However, in the present matter the application was only lodged 4 days out of time, and there is no evidence this limited delay will create any additional prejudice for Linfox, other than what it will already incur.

(e) the merits of the application

[36] Ms Kuhl submits her application has merit as there is no reason to believe she will be unable to return to work after she has an operation to deal with the injury she currently suffers from. She also submits she was dismissed without any prior warning or notice. Linfox submits on the other hand her application is without merit. She was a casual employee who was terminated more than 4 months after she last worked on restricted duties, in circumstances where she was unable to return to her substantive position. It also submits that more than 4 months after her termination this position has not changed.

[37] I am unable to form a clear view about the respective merits of the matter on the basis of the submissions and evidence now before the Commission. However, I also note that a Full Bench of the Commission has previously found the Commission is not required to embark on a detailed consideration of the substantive case in an application of this kind. 14 The Full Bench also noted while the issue of merit is important, exercise of the discretion to grant additional time should have primary regard to the circumstances that led to the late lodgement.

(f) fairness as between the person and other persons in a similar position

[38] Neither party made submissions suggesting this consideration was of particular importance in the present matter.

Conclusion

[39] In conclusion, in coming to a decision in this matter I am satisfied the evidence indicates Ms Kuhl gave instructions to her solicitor to make an unfair dismissal application on her behalf. Having given those instructions she was not required or expected to understand that a 21 day time period existed for making such applications. She was entitled, instead, to believe her solicitor would act in accordance with her instructions. The solicitor then failed to pass on advice to Ms Kuhl by mistakenly addressing an email. This problem was compounded by Ms Kuhl’s inability to make contact with her solicitor, or have her calls returned. Those circumstances were the reason why her application was not lodged within the requisite time period.

[40] I am accordingly satisfied, in conclusion, that this combination of relatively minor matters acted in concert to prevent Ms Kuhl from becoming aware her instructions to lodge an unfair dismissal application on her behalf had not been acted upon. I am also satisfied she was “blameless” in all these circumstances and did everything that could reasonably be expected of her.

[41] I am satisfied, in conclusion, having regard to all the circumstances and the matters in s.394(3) that I am required to take account of, that this matter involves “exceptional circumstances,” and it is appropriate for the Commission to exercise its discretion to grant Ms Kuhl additional time in which to make application. An order will be issued to that effect. The matter will also now be relisted to enable the substantive application to be heard and determined.

COMMISSIONER

Appearances:

Mr Garry Dircks of Just Relations appeared on behalf of the Applicant.

George Katsifolis appeared on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

12 December.

 1   Fair Work Act 2009 (Cth) at s.394(3).

 2   Exhibit D1 at para 42

 3   Ibid at para 43

 4   Ibid at para 44

 5   Ibid at para 54

 6   Ibid at Attachment SK4

 7   [2011] FWA 2802

 8   Print P5279 (22 September 1997)

 9   [2012] FWA 2728

 10   [2011] FWAFB 975

 11   Ibid at [13]

 12   Above n.ii

 13   Above n.iv

 14   Kyvelos v Champion Socks Pty Limited (Print T2421)

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