Scott James Berry v Box Bag Label Graphic Solutions Pty Ltd
[2022] FWC 1045
•16 MAY 2022
| [2022] FWC 1045 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Scott James Berry
v
Box Bag Label Graphic Solutions Pty Ltd
(U2022/3017)
| COMMISSIONER HAMPTON | ADELAIDE, 16 MAY 2022 |
Application for an unfair dismissal remedy – extension of time required for lodgement – whether exceptional circumstances exist justifying an extension of time – representative error – satisfied that exceptional circumstances exist – extension warranted and granted.
What this decision is about
This decision concerns an application by Scott James Berry (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).
Mr Berry’s employment with Box Bag Label Graphic Solutions Pty Ltd (Respondent) concluded during a meeting that involved the Director of the Respondent, Mr Bruce Palmer on 15 February 2022. It is common ground that this meeting commenced with Mr Palmer advising Mr Berry that his employment was being terminated and concluded with a document being signed by the Applicant that was self-described as a Deed of Release (Deed). Amongst other matters, this purported to confirm that the Applicant would lodge a written letter of resignation and that a release and indemnity (from claims) would operate. There is a significant factual and legal dispute between the parties about the conduct of the meeting and the execution and import of the Deed.
The s.394 application in this matter was lodged with the Fair Work Commission (the Commission) by his Solicitor, Ms Boril-Olds on 11 March 2022. Ms Boril-Olds had, on 9 March 2022, mistakenly lodged an unfair dismissal application on the Applicant’s behalf with the South Australian Employment Tribunal (SAET).[1]
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). Adopting 15 February 2022 as the reference date for the alleged dismissal, the period of 21 days in this case ended at midnight on 8 March 2022.[2] The application was therefore filed 3 days after the 21-day limit. The Applicant requests the Commission grant a further period for the application to be made under s.394(3). The Respondent opposes this request. The Act allows the Commission to extend the time period within which an unfair dismissal application can be made where it is satisfied that there are exceptional circumstances.[3]
The Commission conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. Ms Borril-Olds, appeared for Mr Berry and Ms Chand of Employsure represented the Respondent. Each party was given permission to be represented under s.596 of the Act.
Mr Berry provided a witness statement[4] and gave sworn evidence. Mr Palmer provided a witness statement[5] and also gave sworn evidence on behalf of the respondent. Each witness was cross-examined.
As will become clear, having assessed all the circumstances of this matter and the relevant statutory considerations I have determined that there are exceptional circumstances. I was also satisfied that it was appropriate to grant an extension of time for the lodgement of this application. The considerations leading to, and consequences of, that finding are outlined below.
Observations on the evidence
The witness statements provided in this matter contained the competing positions concerning the meeting on 15 February 2022. Ultimately, it is not necessary for present purposes for me to make findings on this aspect.
The evidence about the explanation for the delay in filing was provided by the Applicant and this was not within the knowledge of Mr Palmer. I found the Applicant’s evidence about those events to have been given openly and honestly.
Ms Boril-Olds did not give evidence in this matter. The fact that the SAET application was incorrectly lodged is not in dispute. Ms Boril-Olds advised the Commission that she had also mistaken the calculation of the initial 21-day period, by 1 day. As this assertion was stated by an Officer of the Court, was consistent with the direct evidence that is before the Commission, and no objection to this submission was made, I have accepted this on face value.
The sequence of events following the alleged dismissal and leading to the lodgement of this application
At the time of the events leading to this application, Mr Berry was employed as a Plate Maker at the respondent’s Gepps Cross facility, having been employed since mid-July 2011.
Following the cessation of his employment on 15 February 2022, Mr Berry was unsure about his intentions to contest what he considered to be his dismissal. Having telephoned and made an appointment with Ms Boril-Olds, the Applicant met with his Solicitor regarding the matter on 2 March 2022. Following this meeting, the Applicant instructed Ms Boril-Olds to proceed with an unfair dismissal application.
On 4 March 2022, his Solicitor sent an email to the Applicant seeking further information to enable the unfair dismissal application to be lodged. Mr Berry, who has limited computer skills, did not check his emails.
On 8 March 2022, the Applicant’s Solicitor rang him about the email, and he attended her office that day. Mr Berry provided the required information and the filing fee of $74.90.[6] I observe that the Solicitor had all of the information and instructions required to lodge the unfair dismissal application under the Act with the Commission on that day.
On 9 March 2022, Ms Boril-Olds lodged the SAET application, largely in the same terms as the present application. Given the coverage and terms of the Act,[7] the Applicant was not able to make the SAET application and I have accepted that Ms Boril-Olds was fully responsible for this error. The Applicant was entitled to rely upon his Solicitor to lodge the correct application.
As outlined earlier, Ms Boril-Olds has advised the Commission that as well as lodging the application in the wrong jurisdiction, she also miscalculated the 21-day initial lodgement period and had conducted the matter on the basis that the application was to be filed no later than 9 March 2022.
On 11 March 2022, the Applicant was advised that as a result of an “administrative error” the application had been lodged incorrectly and was now out of time.
This application was filed by Ms Boril-Olds on behalf of the Applicant on 11 March 2022.
There is no evidence about the sequence of events between the filing the SAET application and this application. However, any delay in making the fresh application would also have been within Ms Boril-Olds’ responsibility. That is, there was nothing further required from the Applicant and he was only made aware that it had been lodged incorrectly on the day that this application was filed.
Should an extension of time be granted?
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly stated, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[8] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[9]
The requirement that there be exceptional circumstances before the time to apply can be extended under s.394(3) of the Act is a high hurdle.[10] This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) of the Act requires that, in considering whether there are exceptional circumstances so as to grant an extension of time, the Commission must take into account the following:
(a)the reason for the delay;
(b)whether the person first became aware of the dismissal after it had taken effect;
(c)any action taken by the person to dispute the dismissal;
(d)prejudice to the employer (including prejudice caused by the delay);
(e)the merits of the application; and
(f)fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. That is, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each.[11] I now consider these matters in the context of the application currently before the Commission.
Reason for the delay
The Act does not specify what reason for delay might tell in favour of granting an extension; however, decisions of the Commission have referred to an acceptable or reasonable explanation for the delay. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour; however, all of the circumstances must be considered on their own merits.[12]
It is also the case that a credible explanation for the whole of the delay is not required to make a finding of exceptional circumstances. That is, it is relevant to have regard to whether the Applicant has provided an explanation for the entirety or any part of the delay.[13] The delay in this matter is 3 days and this is the focus of the present consideration. The events leading to that point remain relevant as part of the context for that delay.
Mr Berry fundamentally relies upon the notion of representative error as the reason for the delay. That is, the incorrect lodgement in the SAET and the mistaken calculation of the 21-day initial time limit. I am satisfied that both aspects represent representational error.
The late lodgement due to representative error may form part of a credible explanation for a delay and be relevant to the consideration of exceptional circumstances.[14]
When considering whether exceptional circumstances exist where the reason for delay is an error by the Applicant’s representative, it is relevant to consider whether the Applicant caused or contributed to the representative’s error, whether by act or omission.[15]
Where an applicant has given clear and timely instructions to their representative to file their application, the applicant is generally entitled to rely on the representative to carry out those instructions.[16]
In this case, Mr Berry’s conduct did contribute to the fact the Solicitor was lodging the application near to the conclusion of the 21-day initial time limit. That is, he initially delayed seeking advice and was not responsive to the email from his Solicitor sent on 4 March 2022. However, despite this, his Solicitor had all of the instructions, materials and payment necessary to file the application within time and in the correct jurisdiction. That is, an application under the Act on 8 March 2022.
The reason why the application was not lodged in time was the representative error.
Given those findings I consider that Mr Berry has provided a credible or satisfactory explanation for the period of the delay in making the unfair dismissal application.
The delay in this matter is short and my conclusion about the explanation for the delay tells in favour of a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
I have found that Mr Berry was aware of his purported dismissal on 15 February 2022 when he attended a meeting with Mr Palmer. This means that he had the full 21-day period to make the application. This consideration does not support a finding of exceptional circumstances.
Action taken to dispute the dismissal
Mr Berry took action to dispute his termination by contacting and instructing a Solicitor to act on his behalf. He took no other action in that regard.
Prejudice to the employer (including prejudice caused by the delay)
The delay is short and there is no suggestion that this has of itself led to prejudice. However, the notion of prejudice under this consideration is stated more broadly. In that respect, the Respondent contends that it is prejudiced because it would be required to commit unnecessary time and costs associated with having to defend the application. This proposition is founded, at least in part, upon its view that the Applicant is barred from bringing this application on jurisdictional grounds. This is connected with the merits of the application, and I will come to these shortly.
No additional prejudice has been demonstrated by the Respondent.[17] I have taken the existence of some prejudice to the Respondent into account in my assessment of exceptional circumstances.
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[18] Further, the primary consideration is whether the applicant has an arguable case.[19]
For present purposes I have approached this consideration having regard to the jurisdictional objections of the Respondent and the merits of the application more generally. The jurisdictional objections involve the contentions that:
· The Applicant is barred from making this application as a result of the Deed; and
· The Applicant was not dismissed but rather resigned his employment.
There is substance in the Respondent’s position that a Deed may operate as a defence to an application of this kind. There is a dispute about the circumstances in which the Deed was proposed and apparently executed, including whether it was legally binding. There is also a dispute about the legal consequences of the Deed and the capacity for the Commission to, in effect, set aside or look beyond the apparent import of a Deed as might be sought by the Applicant. In that regard, the Respondent points to limits on the capacity of the Commission[20] and this submission also has substance.
In the absence of the potential import of the Deed, any resignation that was given as an immediate consequence of an employee being informed that they were being dismissed would need to be fully scrutinised. Such a resignation would be capable of being considered to be a dismissal within the meaning of the Act either on the basis that the conclusion of the employment was at the initiative of the employer[21] or a forced resignation.[22] This would depend upon findings beyond the scope of the present proceedings.
I observe that in preliminary proceedings, the parties sought that the extension of time application be dealt with in advance of the jurisdictional issues. That is, for the Commission not to also deal with the 2 jurisdictional matters in conjunction with this matter. Further, despite advancing submissions that contended the application lacked any merit on the jurisdictional basis, the Respondent’s ultimate submissions was that the merits consideration should be assessed as “neutral”.[23] Given the scope of these proceedings and the fact that some evidence potentially relevant to these jurisdictional issues was not led or contested, fairness dictates that care be expressed in reaching views on these matters as part of this process. This approach is also consistent with the present statutory context.
In terms of the substance of the application in the event that it is within jurisdiction, I have little information and submissions about this aspect. Based upon the contentions in the application, the Applicant would have an arguable case on this aspect.
In the circumstances, I consider the Respondent has a strong case on the impact of the Deed, however it cannot be safely concluded at this point that the application on that issue, or as a whole, is without merit. The Commission would need to hear the full evidence and submissions on the jurisdictional, and if appropriate, the broader merit issues. As a result, I consider that the only conclusion I can reach is that the merit consideration in this matter is not a strong motivating factor in determining the existence of exceptional circumstances.
Fairness as between the person and other persons in a similar position
Nothing of relevance was advanced on this aspect.
The application of consistent principles and approaches to a request for an extension of time is relevant and appropriate, and I have adopted that approach in this case. I therefore consider that this aspect weighs mutually between the parties as a consideration of exceptional circumstances in this matter.
Conclusion
Having considered all the circumstances of this matter and the considerations provided by s.394(3) of the Act, I am satisfied that there are exceptional circumstances. I also consider that the interests of justice require that an opportunity be provided to have the application further considered by the Commission, including the jurisdictional objections raised by the Respondent. In that light, it is appropriate that I exercise my discretion to grant an extension of time for the filing of this application and I so Order.
Given that the application is now properly before the Commission, I will shortly reconvene a Directions Conference to assess the most appropriate steps to further deal with the matter.
COMMISSIONER
Appearances:
L Boril-Olds of Boril Olds Solicitors-Legal Solutions & Conveyancing, with permission on behalf of the Applicant.
A Chand of Employsure, with permission on behalf of the Respondent.
Hearing details:
2022
May 5
Video Hearing.
[1] The SAET is established under the South Australian Employment Tribunal Act 2016 (SA).
[2] The 21-day time limit does not include the day of the dismissal itself, consistent with Acts Interpretation Act 1901 (Cth) s.36(1).
[3] Section 394(3) of the Act.
[4] Exhibit A1.
[5] Exhibit R1.
[6] Confirmed in the evidence of Mr Berry. This is the exact filing fee for an unfair dismissal application under the Act.
[7] Including s.26 of the Act which has the effect of excluding the Fair Work Act 1994 (SA), under which the SAET application was lodged, for national system parties such as those subject to this matter.
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[9] Ibid.
[10] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[11] Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [10] to [19] and [38].
[12] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[13] Ibid.
[14] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420.
[15] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [30].
[16] Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759. See also Donohoe v QuickComms Australia Pty Ltd[2020] FWCFB 5426.
[17] Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 as considered in Jervis v Coffey Engineering Group Pty Ltd AIRCFB PR927201, 3 February 2003 at [16].
[18] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[19] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[20] Chapman v Ignis Labs Pty Ltd T/A Ignis Labs[2020] FWCFB 3849.
[21] Section 386(1)(a) of the Act.
[22] Section 386(1)(b) of the Act.
[23] Written submissions at 63 and confirmed by oral submissions.
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