Stefania Hondros v Exego Pty Limited T/A Repco Australia

[2013] FWC 8907

[2013] FWC 8907 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stefania Hondros
v
Exego Pty Limited T/A Repco Australia
(U2013/1934)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 13 NOVEMBER 2013

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

[1] Ms Stefania Hondros (the Applicant) made an application on 12 June 2013 under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy regarding her dismissal on 23 January 2013. On 2 July 2013, GPC Asia Pacific (previously Exego Pty Ltd) trading as Repco Australia (the Respondent) objected to the application on the grounds that it had been made outside the 21 day timeframe specified in s.394(2) of the Act. The Applicant argues that there were exceptional circumstances warranting the Fair Work Commission (the Commission) allowing a further period for the application to be made.

Background

[2] The Applicant commenced work with the Respondent on 12 October 2009 as a delivery driver. The Applicant was dismissed on 23 January 2013 following an at-fault motor vehicle accident involving a company car which the Applicant was driving. The Respondent indicated that the Applicant, who had previously received two final written warnings, drove into a stationary vehicle 1 and following discussions with the Applicant was dismissed for unsatisfactory performance. However, when discussing the accident with the Respondent, the Applicant alluded to “sun glare”2 as a relevant factor and her application stated the accident “was caused by sunlight to which my vision was blurred at the time.” It was not challenged that the Applicant had been dismissed by the Respondent or that that the Applicant was protected from unfair dismissal at the time of dismissal.

[3] The day after her dismissal (24 January 2013) the Applicant contacted a firm called Employee Assist, who’s website describes the firm as “Unfair Dismissal Specialists - On Your Side” 3, regarding her dismissal.4 Ms Arkles from Employee Assist sent the Applicant an email later that day under the subject heading “Instructions to Act” seeking response to a number of questions. Among other things, the email stated:

“Please find attached our terms and conditions of engagement. By providing your responses to the questions below you are deemed to have accepted these terms and agree to be bound by them.” 5

[4] The Applicant responded to Ms Arkles by email on 25 January 2013 providing the requested responses to the questions set out in her email of the previous day. 6

[5] The Applicant emailed Ms Arkles again on 29 January 2013 inquiring as to the merits of her case. Ms Arkles responded by email on 30 January 2013 stating:

“Yes, we have made your application to Fair Work. We will be back in touch as soon as we have a hearing date for you ... There is nothing else I need from you at this stage.” 7

[6] The Applicant subsequently followed up with Ms Arkles by email on 11 February, 4 March and 22 May 2013 inquiring as to whether the application was proceeding. 8

[7] On 6 June 2013 the Applicant received an email from Ms Arkles stating:

“Further to our discussion, I am writing to confirm that your application has not been made, due to representative error.” 9

No further explanation was provided by Ms Arkles.

[8] The Applicant subsequently filed her application for an unfair dismissal remedy on 12 June 2013, six days after having received the abovementioned email from Ms Arkles.

The Relevant Legislation

[9] Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a 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 first person 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.”

Whether to allow a further period for the application to be made under s.394(2)

[10] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[11] The reason for the delay is representative error, the details of which are set out at paragraphs [3] to [7] above.

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

[12] While no direct submissions were made on this point, documents tendered by the Applicant which show that the Applicant took steps on 24 January 2013 to dispute the dismissal 10 support a finding that the Applicant was aware of her dismissal on the date that it took effect, i.e. 23 January 2013. This is reinforced by the documentation attached to the Employer’s Response to Application for Unfair Dismissal (Form F3).

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

[13] As is evident from paragraphs [3] to [7] above, the Applicant moved quickly to dispute her dismissal by contacting Employee Assist the day after her dismissal. She completed the necessary Instructions to Act on 25 January 2013, two days after the dismissal, and was advised by Employee Assist on 30 January 2013 that an application for an unfair dismissal remedy had been made to the Commission on her behalf. Following that advice from Employee Assist, the Applicant nevertheless contacted the firm asking whether her application was proceeding on three occasions - 11 February, 4 March and 22 May 2013 - prior to being informed on 6 June 2013 that an application had not been made due to representative error. As noted above, the Applicant subsequently filed her application for an unfair dismissal remedy on 12 June 2013.

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

[14] The Respondent submitted that it would not be prejudiced were the Commission to allow an extension of time for the application to be made in this matter. 11

(e) The merits of the application

[15] The Respondent objects to the extension of time on grounds of merit, submitting that the Applicant had received numerous warnings, including two final written warnings, which warranted dismissal. The Respondent briefly outlined the history of discussions and warnings given to the Applicant dating back to around February 2011, highlighting the following:

(i) a discussion, which resulted in a written warning, with the Applicant on 5 January 2012 as a result of three complaints from the public and customers in relation to unsafe driving and use of mobile phone while driving;

(ii) another discussion with the Applicant in June 2012 following a complaint from a member of the public regarding dangerous driving involving the Applicant texting while sitting at traffic lights and remaining stationary at the traffic lights when they turned green as she was still texting;

(iii) a discussion with the Applicant on 25 July 2012 regarding the Applicant not following a lawful instruction from her manager and dangerous driving - the discussion resulted in a first final written warning being issued on 27 July 2013;

(iv) a discussion with the Applicant on 6 December 2012 regarding her texting while driving;

(v) a similar discussion with the Applicant on 10 December 2012 also regarding her texting while driving - this resulted in a second final written warning being issued on 14 December 2012; and

(vi) the discussion with the Applicant on 23 January 2013 regarding the abovementioned at-fault motor vehicle accident - this resulted in the Applicant’s dismissal for “unsatisfactory performance due to continuously driving dangerously on the road.” 12

[16] Despite several invitations 13 from the Commission to do so, the Applicant did not make any substantive submissions on the issue of merit other than Mr Drakakis indicating on her behalf that she has “issues on nearly all the warnings ... on various matters on those warnings”.14 The Applicant did not elaborate on the nature of those issues other than to have it submitted on her behalf by Mr Drakakis that “we don’t feel those warnings were fair and just”.15 In response to a question from the Commission, Mr Drakakis indicated that the Applicant did not object to the warnings at the time they were given because she “did not know that she had the option to object to them”.16 The Applicant indicated that with regard to the warnings issued to her, were an extension of time allowed, that she was prepared to “take Repco head on”.17 The Applicant did not provide any indication as to the basis on which she would contest the warnings.

[17] From the above, it is clear that the Applicant intends to contest the warnings issued to her by the Respondent. In the absence of any substantive hearing on issues of merit, based on the material before me I am unable to draw any conclusions as to the merits or otherwise of the application.

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

[18] No submissions were made on this point.

Conclusion

[19] Representative error is cited as the reason for the delay in making the application. As noted by a Full Bench in Robinson v Interstate Transport Pty Ltd (Robinson’s Case) 18the approach to representative error as an explanation for late lodgement was first set out in Clark v Ringwood Private Hospital (Clark’s Case)19in the context of a discretion to extend under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act) and was followed by a Full Bench decision in Davidson v Aboriginal & Islander Child Care Agency (Davidson’s Case).20

[20] The approach in Clark’s Case was summarised in Davidson’s Case as follows:

“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(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.” 21

[21] Based on the material before the Commission it is apparent that the Applicant moved quickly to dispute her dismissal and did not merely “set and forget” once advised by her representative, Enterprise Assist, on 30 January 2013 that an application for an unfair dismissal remedy had been made on her behalf. To the contrary, she followed up with Enterprise Assist on several occasions as to whether her application was proceeding. While it is arguable that, in the absence of any apparent response from Enterprise Assist to her inquiries, the Applicant could have been more forceful in pursuing her inquiries, I am satisfied that, in isolation, representative error in this case constitutes exceptional circumstances for the purposes of s.394(3) of the Act. However, as noted in the above extract from Davidson’s Case, representative error is but one of a number of factors to be considered.

[22] This brings me to the issue of the merits of the application. In Dundas-Taylor v The Cuisine Group Pty Ltd (Dundas-Taylor’s Case) 22 a Full Bench noted that the issue of how the merits of an application should be considered when determining whether or not to allow an extension of time for the lodgement of an unfair dismissal remedy application had been considered by Full Benches of the Commission on numerous occasions. The Full Bench in Dundas-Taylor’s Case cited several decisions, including the following decisions:

“[25] In Mappas v TAAU Australia Pty Ltd, 23 a Full Bench of the Commission said:

“[44] The appellant claims that his termination was for a prohibited reason. In particular he claims that he had complained to the Department of Employment and Workplace Relations about the wages being paid by the respondent, that he had brought to the attention of the respondent advice from the Department that the respondent was obliged to pay wages that were no less than the Federal Minimum Wage and that he was terminated within hours of a discussion with the owner of the respondent in which he insisted that the respondent comply with the Department’s advice. The respondent contends that the termination of the appellant’s employment had nothing to do with any complaint by the appellant to the Department but was due to a downturn in the business of the respondent caused by a number of factors including damage arising from a cyclone. It is not possible to determine the merits of the substantive application without a full hearing. Certainly, it is not open to this Full Bench to conclude, in the absence of such a hearing, that the merits of the appellant’s substantive application are sufficiently poor that this should weigh materially against exercising the discretion to extend time in favour of the appellant.” (Underlining added)

[26] In Nottage v National Australia Bank Ltd, 24 a Full Bench said:

“[23] There is a contest on the merits. In light of the evidentiary material on appeal it is clear the appellant will challenge most of the evidence on which the respondent has indicated it will rely. Findings of fact will be necessary and the seriousness of conduct as found weighed in the balance. We cannot conclude that the application has no merit and it is not necessary that we go any further than that.” (Underlining added)” 25

[23] The Full Bench in Dundas-Taylor’s Case also cited another decision, Kyvelos v Champion Socks Pty Limited (Kyvelos’ Case), 26 in which a Full Bench of the Commission said:

“[14] In considering whether to accept an application which has been lodged outside the time prescribed ... the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case ... In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” (Underlining added)

[24] For reasons of comprehensiveness, I include below an extract from Bearings Incorporated (Australia) Pty Ltd v Treloar (Bearings’ Case) which is referred to by the Full Bench in Kyvelos’ Case:

“As stated earlier, in our view the exercise of the discretion ... to accept an election out of time should be exercised having primary regard to the circumstances relating to the late lodgement. These circumstances include both the reasons for the delay and the prejudice which may be occasioned to the other party should the election be accepted out of time. The consideration of the exercise of the discretion will not normally involve any extensive examination of the merits of the respective cases as to whether the termination of employment complained about was harsh, unjust or unreasonable, or other such matters which will arise for determination in the arbitration proceedings. 27 (Underlining added)

[25] The underlined text in the above extracts from Kyvelos’ Case and Bearings’ Case highlights that in considering whether or not to exercise its discretion to allow a further period for an application to be made under s.394 of the Act, the Commission should have primary regard to the circumstances which led to the late lodgement. As indicated at paragraph [21] above, I am satisfied that, in isolation, representative error in this case constitutes exceptional circumstances for the purposes of s.394(3) of the Act.

[26] Both Kyvelos’ Case and Bearings’ Case, together with the decisions cited by the Full Bench in Dundas-Taylor’s Case, caution against forming a definitive view as to the merits of an application in the absence of a substantive hearing on the merits. In addition, Kyvelos’ Case emphasises “that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues.” 28 As stated at paragraph [17] above, it is clear that the Applicant intends to contest the warnings issued to her by the Respondent and that, in the absence of any substantive hearing on issues of merit, based on the material before me I am unable to draw any conclusions as to the merits or otherwise of the application.

[27] The acknowledged absence of prejudice to the employer in this case is a further relevant consideration.

[28] For all these reasons, and having taken into account all of the factors set out in s.394(3), I am satisfied that there are exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy. I will issue an order to that effect. The application will now be referred for conciliation in the first instance. Advice as to the timing of that conciliation will be provided shortly.

DEPUTY PRESIDENT

Appearances:

S. Hondros with S. Drakakis for the Applicant.

S. Barbaro with J. Gulley for the Respondent.

Hearing details:

2013.

Melbourne:

October 18.

 1   Transcript at PN 46

 2   Record of discussion of 23/01/13 submitted as part of Respondent’s submissions

 3     Exhibit H1

 5   Ibid

 6   Ibid

 7   Ibid

 8   Exhibit H2

 9   Exhibit H1

 10   Ibid

 11   Transcript at PN 63 and PN 64

 12   Ibid PN 45 and PN 46 and records of discussions filed by the Respondent

 13   Ibid PN 27, PN 89 and PN 96

 14   Ibid PN 97

 15   Ibid PN 66

 16   Ibid PN 70

 17   Ibid PN 82

 18 (2011) 211 IR 347

 19 (1997) 74 IR 413

 20 (1998) 105 IR 1

 21   Ibid

 22 (2011) 212 IR 265 at [23]

 23   [2007] AIRCFB 260

 24   [2007] AIRCFB 716

 25 (2011) 212 IR 265

 26   Print T2421

 27   Print P8600

 28   Print T2421 at [14]

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