Suraj Surendra v Poh Fong Bong T/A 24 Hour Internet Cafe & Convenience
[2016] FWC 7775
•31 OCTOBER 2016
| [2016] FWC 7775 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Suraj Surendra
v
Poh Fong Bong T/A 24 Hour Internet Cafe & Convenience
(C2016/5223)
DEPUTY PRESIDENT DEAN | SYDNEY, 31 OCTOBER 2016 |
Application to deal with contraventions involving dismissal – extension of time.
[1] Mr Suraj Surendra (the Applicant) was employed by Poh Fong Bong T/A 24 Hour Internet Cafe & Convenience (the Respondent). The Applicant says his employment was terminated on 9 August 2016. He alleges that the termination of his employment by the Respondent was in contravention of s.340 of the Fair Work Act 2009 (the Act). The Respondent denies the allegation and maintains that the Applicant’s employment has not been terminated.
[2] Mr Surendra’s application pursuant to s.365 of the Act was received by the Fair Work Commission (the Commission) on 31 August 2016. The application was lodged 1 day outside the 21 day time period prescribed by the Act and cannot proceed unless an extension of time is granted by the Commission.
[3] The matter was listed for hearing by telephone to consider the extension of time issue. At the hearing, Mr M Wilson of the Young Workers Centre (YWC) appeared, with permission, for the Applicant. Mr H Bong appeared for the Respondent.
Consideration
[4] The Commission may allow a further period for a general protection application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.366(2) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time.
[5] Section 366 of the Act provides:
366 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.
[6] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:
“[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.”
[7] I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
[8] The Applicant relied on representative error as the sole reason for the delay.
[9] Both the Applicant and his representative, Mr Wilson, filed a statutory declaration in support of the granting of extension of time. Mr Wilson is a solicitor of YWC. The Respondent did not wish to cross-examine the Applicant or Mr Wilson during the hearing.
[10] The Applicant gave evidence that he contacted YWC and sought legal advice on the day he was terminated. During the period between 9 and 24 August 2016, he maintained he had regular communications with YWC. On 26 August he provided the YWC with written authority to act on his behalf.
[11] The Applicant submitted that he provided some further information to YWC on 29 August and was advised by Mr Wilson that his application would be lodged immediately.
[12] On 30 August the Applicant was advised by Mr Wilson that the application was not lodged the previous day due to his commitment with an urgent task but that he was in the process of lodging it at that time. The Applicant attested that he was advised by Mr Wilson that the application had been filed within time but was subsequently told that his application was not received until 31 August, being one day out of time.
[13] Mr Wilson gave evidence that the Applicant provided him with clear instructions to lodge his application within the 21 day time period. Mr Wilson gave evidence that on 30 August 2016 he intended to file the application via the Commission’s Online Lodgment Service. That attempt was ultimately unsuccessful and he was later advised by the Registry that he could send the application by email. He did so later that day. It was not until the following day when he did not receive an email confirmation from the Registry that he realised he had sent the email to the wrong address by entering ‘[email protected]’ instead of ‘[email protected]’.
[14] Mr Wilson’s explanation was evidenced by a copy of the email of 30 August 2016 indicating that it was sent to the wrong email with an attached form F8. It is apparent that if the email address was entered correctly by Mr Wilson, the application would have been received by the Commission on 30 August and the application would not be filed out of time.
[15] The Commission’s approach to representative error as an explanation to the late lodgement was summarised by the Full Bench in Robinson v Interstate Transport Pty Ltd 2:
“[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. 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.
[25] 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.”
(references omitted)
[16] The Full Bench went on to say:
“[30] Mr Robinson arranged legal advice three days after the termination of his employment. At that time Mr Robinson requested that Mr Tayler prepare a client agreement for his consideration and upon receiving the agreement, he executed the agreement on 13 May 2010, within a week of its receipt. On the day he executed the agreement, Mr Robinson instructed Mr Tayler to file a general protections application on his behalf. It is unsurprising that Mr Robinson, having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative’s requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of providing clear instructions to Mr Tayler to lodge his application.
[31] As noted by a Full Bench in D La Rosa v Motor One Group Pty Ltd, in the context of s.170CE of the WR Act:
As is evident from Clarke, little might be required to satisfy the Commission that the applicant was blameless in the delay. In the context of a relatively short delay, it may simply be a matter of establishing that the applicant gave instructions to lodge [in this case] a Notice of Election and thereafter left matters in the handsof his or her representative.”
(references omitted)
[17] Having considered the evidence before me and adopting the above approach, I am satisfied that the Applicant has made out an acceptable explanation of the reason for the delay in lodging the application. The Applicant had promptly sought legal advice following his dismissal, promptly provided written authority and instructions to his representative and upon doing so, took reasonable actions to follow up his general protections application. I am further satisfied that the Applicant was entitled to rely upon his representative to act on his instructions and was blameless for the delay.
[18] This weighs in favour of a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
[19] The Applicant took prompt action to obtain legal advice soon after the termination of his employment and then relied on his solicitors to follow his instructions to file his application within the statutory time limit.
[20] There is no evidence that the Respondent was made aware of any action taken by the Applicant to dispute the dismissal.
[21] I therefore find this to be a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay)
[22] There was no evidence that the Respondent would suffer prejudice if the extension of time were granted. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.
The merits of the application
[23] The Applicant submits that he was terminated after he made enquiries to the Respondent about his remuneration. As such, he alleges that the Respondent took adverse action against him by terminating his employment because of the exercise of his workplace rights, including a right that he was entitled to the benefit of a workplace instrument and a right to be able to make a complaint or inquiry in relation to his employment (ss.340(1)(a) and 340(1)(c)(ii)).
[24] The Respondent denies the allegations and contends that the Applicant has not been terminated. The Respondent submitted that it had informed the Applicant that he would need to wait for the new shift arrangements to be confirmed.
[25] The response filed by the Respondent also claimed that the Applicant had only commenced in May 2016 on a ‘training and probationary period’, and the Respondent had yet to confirm his ongoing employment.
[26] I am not able to make a final determination of the merits in this matter as there are factual disputes between the parties. I therefore consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[27] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 3 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’4
[28] There were no submissions or evidence that there were any persons in a similar position and I find it to be a neutral consideration.
Conclusion
[29] Having considered all of the matters to which my attention is directed by the Act, I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of the application.
[30] An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
M Wilson for the Applicant.
H Bong for the Respondent.
Hearing details:
2016.
Sydney (by telephone):
October 28.
1 [2011] FWAFB 975.
2 [2011] FWAFB 2728.
3 [2015] FWC 8885.
4 Ibid at [29].
Printed by authority of the Commonwealth Government Printer
<Price code C, PR586934>
0