Simon Ward v GrainCorp Operations Limited
[2022] FWC 2716
•12 OCTOBER 2022
| [2022] FWC 2716 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Simon Ward
v
GrainCorp Operations Limited
(U2022/8270)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 12 OCTOBER 2022 |
Application for an unfair dismissal remedy – extension of time – representative error – filing in wrong jurisdiction followed by public holiday – whether exceptional circumstances – discretionary considerations – extension granted
On 11 August 2022 Simon Ward (Mr Ward or the applicant) lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (the FW Act) concerning the termination of his employment by Grain Corp Operations Limited (Grain Corp or the respondent) on 20 July 2022.
The application was lodged twenty-two days after his dismissal took effect, being one day beyond the statutory time limit. Mr Ward says late lodgement was the result of representative error by his legal representatives.
This decision deals with whether an extension of time should be granted.
I issued directions on 20 September 2022.
I conducted a hearing by video on 7 October 2022.
Permission was granted for Mr Ward to be represented on the extension of time issue.
Though there appear to be disputed facts on the merits, no disputed facts exist on the extension of time issue.
Statements from Mr Ward[1] and Mr Michael Wood (Managing Partner, Edgar & Wood Solicitors)[2] were filed, as well as written submissions. I took oral evidence from both. Neither were cross-examined.
Facts
Grain Corp operates in the agribusiness industry in Australia and internationally.
Mr Ward was employed as an Area Manager in Queensland. On 20 July 2022 he was dismissed for cause with four weeks’ notice paid in lieu.[3]
Mr Ward’s dismissal followed a period of suspension with pay after allegations were advised by letters of 13 June 2022 and 13 July 2022 and responses by Mr Ward on 15 June 2022, 15 July 2022 and 20 July 2022.[4]
In the course of responding to Grain Corp, Mr Ward engaged solicitors, Edgar & Wood.[5]
Mr Ward continued to obtain legal advice following dismissal.
On 29 July 2022 (nine days after dismissal) Mr Ward instructed his solicitors to file unfair dismissal proceedings seeking reinstatement. Mr Ward was aware that proceedings needed to be filed within 21 days of dismissal, though relied on advice from his solicitors as to the appropriate forum to litigate his action.
On 3 August 2022 Mr Ward’s solicitors recommended that counsel be briefed. Mr Travers of counsel was duly engaged.
On or around 3 August 2022 counsel advised Mr Ward’s solicitors that proceedings should be commenced in the Queensland Industrial Relations Commission (QIRC). This advice was conveyed to Mr Ward, who instructed his solicitors to proceed.
Between 3 and 9 August 2022 Mr Ward’s legal advisers prepared an Application for Reinstatement which was dated 9 August 2022 and lodged by Edgar & Wood in the QIRC at 4.24pm that day.[6] An immediate automated email response confirming lodgement was received by the solicitors.[7]
In filing on that day, Edgar & Wood were aware that 9 August 2022 was day twenty after Mr Ward’s dismissal and was seeking to lodge their client’s claim in advance of the 21-day statutory time limitation.
The following day, Wednesday 10 August 2022, was a public holiday in Queensland. State government offices were closed, including that of the QIRC.
The following day (11 August 2022), at 8.37am, the QIRC sent an email to Edgar & Wood in the following terms:[8]
“Thank you for your email.
We are unable to process your application for reinstatement as the employer is not a State or Local Government.
Please contact Fair Work Commission on 1300 799 675 or visit the Fair Work Commission website.
Kind regards,
Registry Officer”
Upon receipt of this email, Edgar & Wood immediately contacted counsel and then advised Mr Ward that his proceedings had been filed in the wrong jurisdiction, and sought instructions to file in the Commission and seek an extension of time. Mr Ward immediately gave those instructions.
An application to the Fair Work Commission under s 394 of the FW Act was prepared and lodged by email by Edgar & Wood at 3.07pm that same afternoon, 11 August 2022.
Submissions
Mr Ward
Mr Ward contends that an extension of time should be granted because the delay was attributable to representative error.
Mr Ward submits that he gave prompt instructions to his solicitors inside the 21-day period for the lodgement of an unfair dismissal claim.
Mr Ward submits that it was reasonable to rely on the advice of his solicitors and counsel as to the correct forum in which to litigate.
Mr Ward submits that he was unaware that his application had been lodged in the wrong tribunal until advised by his solicitors on 11 August 2022. He submits that he then promptly gave instructions to immediately rectify the error and file in the correct jurisdiction.
Mr Ward submits that had 10 August 2022 not been a public holiday in Queensland, his solicitors would have been advised of the error on day twenty-one after dismissal, resulting in the correction of the error on that day, which would have resulted in his application being filed within time.
Mr Ward says that the representative error, his blamelessness for the error, his prompt attention to his legal rights and rectification of the error, and the fact that a public holiday occurred on day twenty-one collectively amount to exceptional circumstances warranting an extension of time.
Grain Corp
Grain Corp neither consent nor oppose the extension of time. It submits that the Commission needs to be satisfied that exceptional circumstances exist, and submits itself to the decision of the Commission in that regard.
In so doing, Grain Corp submits that it stands by the merits of its decision to dismiss, and contests aspects of Mr Ward’s materials that relate to events concerning the employer’s investigation and decision to terminate.
Consideration
Section 394 of the FW Act provides as follows:
“394 Application for unfair dismissal remedy
…
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.”
The application can only proceed if Mr Ward can establish that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[9]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[10] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[11]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd: [12]
“[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.”
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.
Status of the application
Mr Ward’s application is one day out of time and can only proceed if an extension is granted.
His dismissal having taken effect on 20 July 2022, the 21-day statutory period expired on 10 August 2022.
I now consider the factors in section 394(3).
Reason for the delay (s 394(3)(a))
The reason for delay in lodging an application is a factor that must be considered.
The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[13]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[14]
The period of delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for the delay is acceptable or credible.[15]
The reason advanced by Mr Ward is a combination of representative error and the occurrence of a mid-week public holiday falling on the twenty-first day.
The long-standing approach adopted by the Commission and its predecessors is that representative error may be an acceptable reason for delay insofar as it may not be fair to visit the error of a representative on an applicant. However, that approach requires primary consideration to be given to the conduct of the applicant to establish whether they took appropriate steps to provide instructions and not contribute to the delay.
As said by a full bench of the Commission in McConnell v A and PM Fornataro:[16]
“(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 carry out 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.”
And as stated by a separately constituted full bench:[17]
“We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.”
Whilst it is relevant to consider whether an applicant has been blameworthy or blameless for delay caused by an error of their representative, it is not necessary to find an applicant blameless for exceptional circumstances to exist beyond establishing that the dismissed employee gave appropriate instructions to their representative in a timely fashion.[18]
Further, the issue is not whether the representative has an acceptable explanation for their conduct or delay, but whether the applicant has an acceptable explanation for the delay.[19]
In this matter, it is readily apparent that the reason for the delay was representative error compounded by a Queensland-specific public holiday falling on the twenty-first day after dismissal took effect.
The lodgement error was a mistake by Mr Ward’s counsel to correctly determine the jurisdiction for filing unfair dismissal proceedings consequent on the federal jurisdiction (since 2005) being based upon the constitutional corporations power and thus applying to a respondent company such as Grain Corp, at the expense of the State jurisdiction.
Whilst Mr Ward knew in general terms of the right to sue for unfair dismissal and that such claims needed to be made within 21-days of dismissal, he had no specialist knowledge as to jurisdictional matters. It was reasonable that he entrusted those matters to his solicitors and that his solicitors in turn took advice from counsel.
I am well satisfied that not only was Mr Ward blameless, but that he gave instructions to file a claim in a timely manner (well inside the 21-day period), and promptly gave instructions to rectify the mistake once it was drawn to his attention.
To their credit, both Mr Travers and Edgar & Wood immediately corrected the error on the same day they were advised of it.
The whole of the period of delay was in fact a public holiday. Whilst filing on day twenty (the day prior to the public holiday) left little margin for error, the fact that the QIRC registry had sent an automated acknowledgement of receipt that afternoon (of day twenty) meant that neither Mr Ward nor his legal representatives had any cause to consider his application other than lodged in an appropriate forum during the course of the public holiday.
Given the events of the following day (11 August 2022), I safely draw an inference that but for the public holiday, the QIRC would have advised Mr Ward’s solicitors of the error on day twenty-one and that Mr Ward’s application would have then been filed afresh in the correct jurisdiction on day twenty-one, and been within time.
Considered overall, there is a credible explanation for the delay. This weighs in favour of granting an extension of time.
Awareness of the dismissal taking effect (s 394(3)(b))
Mr Ward was aware on 20 July 2022 that his dismissal took effect that day, and of its reasons.
This is a neutral consideration.
Action taken to dispute dismissal (s 394(3)(c))
Mr Ward had notice of possible termination via a show-cause letter and had responded in writing to the employer. He had put Grain Corp on notice of his disagreement with the outcome of its investigation.[20] Although neither he nor his solicitors advised Grain Corp of impending litigation following dismissal, Grain Corp was aware that the termination was non-consensual.
This is a neutral consideration.
Prejudice to the employer (s 394(3)(d))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[21]
Grain Corp does not submit any special or particular prejudice should time be extended, and none is apparent.
However, the absence of prejudice is not of itself a reason to grant an extension.[22]
This is a neutral consideration.
Merits of the application (s 394(3)(e))
Both the merits of the dismissal and the remedy are contested matters between Mr Ward and Grain Corp.
I have not conducted a hearing on the merits. As noted, there are contested facts. It is not possible to form a view, even a provisional view, as to whether the respective cases are strong or weak.
In these circumstances, this is a neutral consideration.
Fairness between persons in similar position (s 394(f))
No evidence or submissions raise issues of fairness with and between other persons.
In these circumstances, this is not a relevant factor.
Conclusion on extension of time
Two factors weigh in Mr Ward’s favour – that the delay period is short (one day) and that the explanation is credible.
Other factors are neutral or not relevant.
In this matter, I find that the circumstances for the late filing are exceptional. Those circumstances are the combination of the representative error, Mr Ward’s blamelessness for the error, his prompt attention to his rights and rectification of the error, and the fact that the error would have, in all probability, been rectified in time but for a State-specific public holiday falling on day twenty-one.
It is not usual or common that a dismissed employee gives instructions within time to file proceedings in a lawful manner only to subsequently discover that their legal representatives have filed in the wrong jurisdiction and a public holiday had impeded awareness of that fact and its rectification.
I also consider it appropriate to extend time. There are no discretionary reasons to not do so. It was not unreasonable for Mr Ward to place his interests in the hands of his solicitors. He was attentive to his interests and acted promptly to advance those interests.
There is no particular prejudice to Grain Corp in defending a claim that is late by one day.
Conclusion
Having regard to the factors in s 394(3) of the FW Act, the time for lodgement of application U2022/8270 is extended so as to permit the application to be heard and determined by the Commission.
An order[23] to this effect is issued in conjunction with the publication of this decision.
I direct the application to be conciliated by a staff conciliator.
DEPUTY PRESIDENT
Appearances:
Mr P Travers of Counsel, with Mr M Wood and Mr M W Harradine of Edgar & Wood Solicitors, with permission and on behalf of Mr S Ward
Mr B Siddans, of and on behalf of GrainCorp Operations Limited
Hearing details:
2022
Adelaide (by video)
7 October
[1] A1 Statement 30 September 2022
[2] A2 Statement 29 September 2022
[3] SW11
[4] SW1 to SW10
[5] A1 paragraphs 5 and 20
[6] MDW1
[7] MDW2
[8] MDW3
[9] Smith v Canning Division of General Practice[2009] AIRC 959
[10] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[11] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[12] [2011] FWAFB 975 “Nulty” at [13]; see also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithiss[2010] FWAFB 7251 at [5]
[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[14] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[15] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[16] [2011] FWAFB 466 at [35] citing Clark v Ringwood Private Hospital (1997) 74 IR 413 and Davidson v Aboriginal and Islander Child Care Agency Print Q0784
[17] Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728 at [24]
[18] Qantas Ground Services Pty Ltd v Simon Rogers[2019] FWCFB 2759 at [17]
[19] Ibid at [16]
[20] SW11
[21] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[22] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[23] PR746692
Printed by authority of the Commonwealth Government Printer
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