Samson Woo v Own World Pty Limited T/A Own World

[2017] FWC 2679

[2017] FWC 2679

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Samson Woo
v
Own World Pty Limited T/A Own World
(C2017/1961)

COMMISSIONER PLATT ADELAIDE, 16 MAY 2017

Application to deal with contraventions involving dismissal – representative error - extension of time granted.

[1] Mr Samson Woo has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by Own World Pty Limited T/A Own World (Own World) on 20 March 2017 in contravention of the general protections provisions of the Act.

[2] This application was lodged on 11 April 2017.

[3] Mr Woo’s application indicated, at question 1.4, that he was making the application within 21 calendar days of the dismissal taking effect.

[4] Own World filed a F8A Employer Response on 21 April 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time.

[5] On 2 May 2017, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 15 May 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Woo and Own World were directed to provide an outline of argument by 10 May 2017.

[6] On 10 May 2017 Ms Huskie of Fair Work Claims, on behalf of Mr Woo provided a written submission.

[7] Paragraph 1d of the submission contends that;

“1. The Applicant was dismissed on 20 March 2017.

2. The Applicant had first contact with his representatives on or about 21 March 2017.

3. The Applicant signed and returned his contract of engagement of his representatives on 27 March 2017. However, the Respondent was not engaged until the retainer was paid by the Applicant on 10 April 2017.

4. The Applicant’s representatives incorrectly calculated the 21 days from when the dismissal took effect to be 11 April 2017 and advised the application could be filed by this date.

5. The Applicant’s representatives drafted the application on 11 April 2017 and sent to the Applicant for his instructions on corrections and filing to which the Applicant approved the claim and instructed his representatives to file.

6. The Applicant did all things necessary to approve and instruct his representatives to file his application on time.”

[8] Own World provided a written submission summarised as follows:

• Mr Woo commenced employment with Own World on 16 January 2017 in a sales role. The employment contract provided for a probation period of 3 months.



• Own World is a small business with around 10 employees and has taken steps to replace Mr Woo.



• On 24 February 2017, Mr Woo was counselled in relation to his poor performance and was given 4 weeks to improve his performance. His employment was subsequently terminated for poor performance.



• On 7 March 2017, Mr Woo was issued a warning for leaving the business showroom at the end of the day without locking the front door.

[9] On 15 May 2017, in response to a request by the Commission, Mr Woo submitted a statutory declaration by Mr Miles Heffernan, Director of Workplace Litigation at Supportah Operations Pty Limited T/A Fair Work Claims.

[10] Mr Heffernan declared that;

“1. I am the Director of Workplace Litigation at Supportah Operations Pty Limited t/a Fair Work Claims.

2. We use a practice management software program.

3. I have referred to this program in the preparation of this affidavit.

4. Mr Woo contacted our office on Tuesday 7 March 2017 by telephone.

5. I attempted to call Mr Woo at 5pm on 8 March 2017.

6. Fair Work Claims assesses the prospects of success by a diagnostic process, using structure questions.

7. Mr Woo’s diagnostic meeting occurred on 21 March 2016 (sic).

8. He was advised by email that he had prospects of success for on the same day (sic).

a. Attached to this affidavit is the new client signup materials, as MH-01, is a true and correct copy of that correspondence.

b. I have highlighted the 12 month limitation period quoted.

9. This was sent from the trainee consultant Lachlan Banks.

10. Mr Banks in error sent the new client sign up for discrimination claims, not a general protections claim.

11. This resulted in Mr Woo being advised of a limitation period one (sic) twelve months, not 21 days (see warning on the top of page one).

12. On 27 March 2017, Mr Woo returned the discrimination claim sign up materials to Mr Bank’s email and this was forwarded to the central email account for processing.

a. Attached to this affidavit is the new client signup materials, returned by Mr Woo, as MH-02 as a true and correct copy of Mr Woo’s materials.

13. On 6 April 2017, as part of my ongoing open file review, I sought an appointment with Mr Woo as I was of the view that his matter may be better served to be a general protections claim.

14. Due to the time pressure, I arranged to speak to Mr Woo on Saturday 8 April at 12 noon.

15. I called Mr Woo on his mobile.

16. After speaking with him, I informed him that I recommend that move to make a General Protections Dismissal Claim.

17. I apologised to Mr Woo and explained that there was a 21 day limitation period and that we needed to have his claim in by Tuesday 9 April 2017 (sic).

18. As I was not in the office, I used the calendar on my telephone and wrongly advised Mr Woo Tuesday rather than Monday.

19. This error was the sole reason for the delay, based on us originally considering a discrimination claim based on family responsibilities, as was clear in the new client signup materials.

20. This error is entirely of my making and I apologise to the Commission, Mr Woo and the Respondent for this error.”

[11] A hearing was conducted by way of telephone conference on 15 May 2017. A sound file record of the telephone conference was kept. Ms Roseanne Huskie of Fair Work Claims represented Mr Woo and Ms Lorraine White of Baker Deane and Nutt Lawyers represented Own World. Permission was granted pursuant to s.596(2)(a) of the Act.

[12] Mr Woo gave evidence at the conference, his position is summarised as follows:

• He discussed his claim with Fair Work Claims on 23 and 24 March 2017.



• He received the invoice for the fees on or about 27 March 2017.



• He received his final entitlements from Own World on 3 April 2017.



• He had conversations with Fair Work Claims about payment on 3 and 4 April 2017.



• He did not pay Fair Work Claims at that point as he wanted to speak with Mr Heffernan first.



• He had a conversation with Mr Heffernan on 8 April 2017 where it was decided to make a general protections claim.



• He was not sure when he became aware of the 21 day time limit.



• He paid the Fair Work Claims deposit on 10 April 2017.

[13] Ms White identified a number of inconsistencies between the Statutory Declaration of Mr Heffernan and the material filed by Ms Huskie. As a result, Mr Heffernan was required to give evidence. This occurred after a short delay to allow Mr Heffernan to attend.

[14] Mr Heffernan’s evidence is summarised as follows;

• He outlined the process whereby Fair Work Claims would speak with a prospective client, make an initial assessment of the case and then (subject to the assessment) make an offer of engagement which would include payment of a fee.



• Mr Woo met with a trainee consultant Mr Lachlan Banks (who was a law student) on 21 March 2017. Mr Banks under took the assessment process.



• Mr Banks sent a proposal to Mr Woo on 21 March 2017 for the matter to be pursued as a discrimination claim. This proposal indicated that there was a one year time limit for the lodgement of the claim.



• Mr Woo responded on 24 March 2017 (the reference to the date of 27 March 2017 in Mr Heffernan’s statutory declaration was a mistake).



• On 6 April 2017, Mr Heffernan reviewed Mr Woo’s file and determined that it would be more appropriate for the matter to proceed as a general protections claim.



• Mr Heffernan and Mr Woo spoke on 8 April 2017. Mr Heffernan advised Mr Woo that he should made a general protections claim and that the last day to file was Tuesday 9 April 2017 (this was also an error in Mr Heffernan’s Statutory Declaration as the last day to lodge was Monday 10 April 2017).



• On 10 April 2017, Mr Woo paid a deposit on his fees with the balance being waived.



• Mr Heffernan accepts sole responsibility for the delay which he states was occasioned by the failure in the initial assessment to consider lodging a general protections claim.



• Mr Heffernan also stated that in the event this claim failed, Mr Woo continued to have a right to claim for discrimination in a different jurisdiction.

[15] After the conclusion of his evidence, Mr Heffernan advised the Commission that he had studied law but was not admitted to practice, nor did he hold a practicing certificate. He stated he was a paid agent.

[16] Own World cross-examined Mr Woo and Mr Heffernan, relied on the submissions filed and contended that there were no exceptional circumstances on the basis that;

• The evidence of Mr Woo’s advisors was inconsistent and contradictory.



• On one hand the delay was blamed on non-payment of the fees, on the other it was blamed on the assessment of how the matter should proceed.



• Mr Woo stated he was waiting for his final pay to fund the claim, but these funds were received by him on 3 April 2017 which would have allowed him to proceed much earlier than he did.



• It was Mr Woo’s decision to delay payment because he wanted to talk to Mr Heffernan and, accordingly, Mr Woo was responsible for the delay by his failure to pay fees until 10 April 2017, which if paid earlier would have enabled the matter to proceed in a timely fashion.

Consideration

[17] Section 366 of the Act relevantly states:

“Time for application

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

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

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

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

(a)  the reason for the delay; and

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

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

(d)  the merits of the application; and

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

[18] This general protections application by Mr Woo was made 1 day outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[19] I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ 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.”

[20] Based on the material before me I make the following factual findings.

[21] I accept that Mr Woo’s representatives, Fair Work Claims, failed to advise Mr Woo of his ability to make a general protections claim until Saturday 8 April 2017, just 3 days before the 21 day time limit expired. I also observe that Fair Work Claims preparation of Mr Woo’s extension of time application was poor, that their submissions as to the reason for the delay are inconsistent and that Mr Heffernan’s statement contains a number of inaccuracies.

[22] It is clear to me that Mr Woo’s case has suffered from representative error, this is not contested by the respondent.

[23] The remaining question to be determined is Mr Woo’s failure to pay the retainer until 10 April 2017 and its contribution to the delay.

[24] Mr Woo was uncertain of when he became aware of the 21 day limit. It appears that Mr Woo would not have been aware of the application or this requirement until it was determined on 8 April 2017 that his claim would best be made as a general protections claim. Until that time the written material provided to Mr Woo for his discrimination claim advised that he had 12 months to lodge.

[25] It is a well-established principle that, 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.² In such a case, a distinction is drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.³ The conduct of the applicant is a central consideration.⁴

[26] I am not satisfied that Mr Woo contributed to the delay.

[27] The applicant needs to provide a credible explanation for the entire period of the delay,⁵ and has done so.

[28] There is no submission that the granting of an extension of time represents prejudice to the respondent.

[29] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.

[30] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[31] For the reasons I have set out above, I am satisfied that Mr Woo’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and the application will accordingly be referred for conciliation. An Order 6 reflecting this decision will be issued.

COMMISSIONER

Appearances:

R.Huskie of Fair Work Claims on behalf of the Applicant.

L.White of Baker Deane & Nutt Lawyers on behalf of the Respondent.

Hearing details:

2017.

Adelaide:

May 15.

1 [2011] FWAFB 975

2 Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420

3 Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420

4 Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420

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

 6   PR592954

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<Price code C, PR592953>