Sean Chambers v Licensed Premises Pty Ltd T/A Mitchell River Tavern

[2015] FWC 1054

[2015] FWC 1054

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sean Chambers
v
Licensed Premises Pty Ltd T/A Mitchell River Tavern
(U2014/15669)

COMMISSIONER CRIBB MELBOURNE, 12 FEBRUARY 2015

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

[1] Mr Sean Chambers (the Applicant) has made an application under section 394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy in relation to his dismissal by Licensed Premises Pty Ltd t/a Mitchell River Tavern (the Respondent, the company).

[2] The company raised a jurisdictional objection, on 27 January 2015, on the basis that Mr Chambers’ application was lodged outside the statutory timeframe. Mr Chambers was dismissed on 24 October 2014 and he lodged his application on 3 December 2014.

[3] Directions were issued to both parties in relation to the filing of material ahead of a hearing of the Applicant’s extension of time application. Prior to the scheduled hearing, it was agreed between the parties that the Commission could deal with the extension of time application on the basis of the material before it, namely, on the papers.

[4] This decision, therefore, concerns only the extension of time application by Mr Chambers.

1. Legislative framework

[5] Section 394(3) of the Act empowers the Commission to allow a further period of time for an application to be validly made, as set out below:

“(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.”

[6] I will deal with each of the considerations set out in s.394(3) in turn.

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

Mr Chambers

[7] In Mr Chambers’ witness statement 1, it was stated that:

• On 24 October 2014, he was advised by the Venue Manager that management had agreed that they were no longer going to continue his employment and that the business accountant had all of the details and that he should speak to him. 2



• He then left the Mitchell River Tavern and went and spoke with the business accountant. The business accountant told him that he did not know anything about the termination. 3



• Over the next two days, he tried to contact Mr Carrison to discuss his dismissal but was unsuccessful. He then went to Mr Carrison’s office on 26 October 2014 and met with him. 4



• During the meeting with Mr Carrison, on 26 October 2014, he asked why his employment was terminated. Mr Carrison had responded that he was going broke and that, as Mr Chambers had reported suspected drug use by a chef to him, it was easier and cheaper to dismiss him (Mr Chambers) than it was to find another chef. 5



• On 28 October 2014, he contacted his solicitor to seek advice. He was advised that he had 21 days to lodge an application with the Fair Work Commission. 6



• On 12 November 2014, his solicitor sent him a draft Form F2. He emailed the solicitor telling him that “I am happy to give them credit card over the phone for the lodgement fee”. 7



• At this stage, he assumed that his solicitor was going to lodge the Form F2. 8



• On 1 December 2014, he made an enquiry of his solicitor regarding the status of his application. It was then that he realised that the application had not been lodged. 9



• The Form F2 was then amended and filed with the Fair Work Commission without delay. 10



• He has since been advised by his solicitor that, as a result of his e-mail advising that he would pay the lodgement fee, the solicitor had assumed that he (Mr Chambers) was lodging the Form F2. 11

Mr Carrison

[8] Mr Carrison is the owner and Director of the Mitchell River Tavern. In his witness statement 12, he stated the following:

• His daughter, Ms Groat, who was the recently appointed Venue Manager, advised Mr Chambers, on 24 October 2014, that management and the owners believed that it was best if he did not continue his employment with them. He was advised that the Finance Manager would be able to work out his payout figure. 13



• Very soon after the meeting with Ms Groat, Mr Chambers went and talked to the Finance Manager. During the 3 - 4 visits to the Finance Manager over a two hour period, Mr Chambers was very angry and aggressive. 14



• Mr Chambers made numerous phone calls to the hotel and the Venue Manager over the next few days looking for his money.



• Mr Chambers approached Mr Carrison at work, on 26 October 2014, and started yelling at him and saying that he was spineless. 15

[9] It was submitted by the Applicant that the reason for the delay in lodging his application was due to an honest misunderstanding between his legal representative and himself as to who was going to lodge the Form F2. As soon as he discovered that his application had not been lodged, he immediately took steps to lodge the application without delay. 16 The Applicant argued that he was blameless and, therefore, should not be prevented from pursuing his application because of an honest and reasonable misunderstanding.17

[10] On behalf of the Respondent, it was submitted that the Applicant had engaged professional legal representation and that a misunderstanding, between the applicant and his legal representative, which resulted in the application being some 21 days late, does not constitute acceptable exceptional circumstances. 18

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

[11] On the basis of the material before me, I find that Mr Chambers was aware of his dismissal at the time it occurred.

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

[12] It would appear from Mr Chambers’ Witness Statement that, 4 days after his dismissal, he contacted his solicitor for advice. 19 It is common ground between the parties that, two days after his dismissal, there was a meeting between Mr Chambers and Mr Carrison on 26 October 2014. The content of the conversation is disputed between the parties and so I am unable to make a finding about whether, during the meeting, Mr Chambers disputed his dismissal.

[13] Therefore, I find that, four days after his dismissal, Mr Chambers sought advice from his solicitor and then lodged an application. However, for the reasons set out above, I am unable to find that Mr Chambers took any other actions to dispute his dismissal.

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

[14] It was submitted by the Applicant that the employer has not suffered any prejudice. This is because there was only a short delay in the lodging of the application. 20

[15] The Respondent did not make any submissions in relation to this consideration.

[16] On the basis of the material before me, I find that there is no additional prejudice to the company, other than the usual prejudice which accompanies any granting of an extension of time.

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

[17] The Applicant submitted that the merits for his claim are very strong. This was because, when he was advised that his employment was being terminated, he was not given any reasons. He stated that he had not previously had his performance questioned and had not received any warnings. Further, when he was dismissed, he was not invited to bring a witness to his dismissal and was not given an opportunity to respond to any reasons given for his dismissal, as no reasons were given. 21

[18] In addition, it was argued by the Applicant that his dismissal was harsh, unjust and unreasonable. This was on the basis that the reasons given by the employer two days after his dismissal (that it is cheaper to replace him than a chef) were unreasonable. When the reasons were given, it was stated by the Applicant that he was not given an opportunity to respond to them. Also, it was argued that, if he had not approached his employer two days after his dismissal, no reasons would have been given at all for his dismissal. 22

[19] On the other hand, the Respondent argued that the Applicant’s dismissal was based on sound reasons. However, it was stated that the Applicant refused to listen to, and enter into, discussions with regard to his dismissal. It was submitted that the merit of the matter successfully proceeding in favour of the Applicant, was very questionable. 23

[20] The Commission has before it two different accounts of the relevant events. As the factual matrix is disputed between the parties, the Commission is unable to make a finding in relation to the merits of the application. This consideration is, therefore, neutral.

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

[21] Neither party made any submissions in relation to this consideration. In the circumstances of this matter, this does not appear to be a relevant consideration.

Section 394(3) - are there exceptional circumstances?

[22] It was submitted by the Applicant that there are exceptional circumstances in relation to the late lodgement of his application. The reasons for the delay were said to be out of the ordinary course, unusual and uncommon. It was argued that the circumstances need not be unique, unprecedented or very rare. Further, the Applicant contended that he was blameless in relation to the delay which was the result of an honest misunderstanding between his legal representative and himself. 24

[23] For the Respondent’s part, it was argued that the circumstances surrounding the Applicant’s failure to file his unfair dismissal claim within time were not out of the ordinary unusual and uncommon. The Respondent stated that the Applicant had engaged professional legal representation and that a misunderstanding between the Applicant and his legal representative causing the application to be lodged late, does not constitute exceptional circumstances. 25

Considerations and conclusions

[24] The meaning of exceptional circumstances and the relevance of representative error, in determining whether exceptional circumstances exist, has been considered by Full Benches of the Commission in relation to section 366(2) of the Act, which is in similar terms to section 394(3) of the Act.

[25] In Nulty v Blue Star Group Pty Ltd 26the Full Bench set out extracts from various authorities in which the meaning of ‘exceptional circumstances’ had been considered, and stated that:

[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. 27

[26] The Full Bench, in Robinson v Interstate Transport Pty Ltd, 28 held that the approach enunciated in Clark v Ringwood Private Hospital29 regarding representative error, in the context of a decision to extend time, whilst made under previous legislation, continued to provide appropriate guidance under s.366(2). Further, the Full Bench held that representative error, in circumstances where the Applicant was blameless, would constitute exceptional circumstances under s.366(2) of the Act, subject to consideration of the matters specified in ss.366(2)(b) to (e) of the Act:

“In our view, the error by Mr Robinson's original representative, in circumstances in which Mr Robinson is blameless for the delay, constitutes an exceptional circumstance in which the application should be accepted late.” 30

[27] I respectfully adopt this approach. The reason for the delay in filing of Mr Chambers’ application for an unfair dismissal remedy is due to a misunderstanding between Mr Chambers’ solicitor and himself about who was actually going to lodge the application. Advice had been sought from the solicitor, by Mr Chambers, in relation to his dismissal. Having received a draft Form F2 from the solicitor, Mr Chambers had advised the solicitor that he was happy with it. Mr Chambers had then assumed that the solicitor was going to lodge the application. Mr Chambers had subsequently followed up with the solicitor as to the status of the application. Having been advised that the application had not been lodged, Mr Chambers had then proceeded to do that without delay.

[28] It is my view that it was reasonable for Mr Chambers to have assumed that his solicitor would be lodging the application. The solicitor had sent Mr Chambers a draft Form F2. Mr Chambers had advised the solicitor that he was happy with the draft application. I accept that there was then a misunderstanding between the solicitor and Mr Chambers which resulted in the application being lodged out of time. Mr Chambers followed his application up with the solicitor and then discovered that it had not been lodged. I consider Mr Chambers to be blameless in relation to the late lodgement. As the solicitor had prepared the application, and then sent it to Mr Chambers to see if he was happy with it, it was not an error on Mr Chambers’ part which resulted in its late lodgement.

[29] Therefore, weighing up, and taking account of, all of the considerations set out in section 394(3)(a) - (f) of the Act, including that there was representative error for which the Applicant was blameless, on fine balance, I find that there are “exceptional circumstances” such that I should exercise my discretion and grant an extension of time. Mr Chambers consulted his legal representative 4 days after he was dismissed and two days after his meeting with Mr Carrison. There is no additional prejudice to the employer as a result of the delay and there was representative error for which the Applicant was blameless.

[30] Accordingly, the application for an extension of time is granted. The date for lodgement is extended to 3 December 2014. An order 31 to this effect will be issued separately.

[31] The application will be referred for conciliation.

 1   Witness Statement of Sean Chambers dated 15 January 2015

 2   Ibid at paragraph 3

 3   Ibid at paragraph 4

 4   Ibid at paragraph 5

 5   Ibid at paragraph 6

 6   Ibid at paragraph 8

 7   Ibid at paragraphs 9 - 10

 8   Ibid at paragraph 12

 9   Ibid at paragraph 13

 10   Ibid at paragraph 14

 11   Ibid at paragraph 13

 12   Witness Statement of Ron Carrison dated 23 January 2015

 13   Ibid at paragraph 3

 14   Ibid at paragraphs 5 - 6

 15   Ibid at paragraph 8

 16   Outline of Submissions, dated 15 January 2015, at paragraphs 4 and 7

 17  Ibid at paragraph 5

 18   Outline of submissions, dated 23 January 2015, at paragraph 6

 19   Witness Statement of Sean Chambers, dated 15 January 2015, at paragraph 8

 20   Outline of Submissions, dated 15 January 2015, at paragraph 6

 21   Ibid at paragraph 8

 22   Ibid at paragraph 9

 23   Outline of Submissions, dated 23 January 2015, at paragraph 7

 24   Outline of Submissions, dated 15 January 2015 at paragraphs 3 - 5

 25   Outline of Submissions, dated 23 January 2015, at paragraphs 5 - 6

 26   [2011] FWAFB 975

 27   Ibid at [13]

 28   [2011] FWAFB 2728

 29 (1997) 74 IR 413

 30   [2011] FWAFB 2728 at [41]

 31   PR561017

Printed by authority of the Commonwealth Government Printer

<Price code C, PR561016>