Susan Madden v Woolworths Supermarket T/A Woolworths RDC Logistic Division

[2014] FWC 4338

[2014] FWC 4338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susan Madden
v
Woolworths Supermarket T/A Woolworths RDC - Logistic Division
(U2014/6050)

COMMISSIONER GREGORY MELBOURNE, 27 AUGUST 2014

Application for extension of time.

Introduction

[1] Ms Susan Madden commenced employment with Woolworths Supermarket T/A Woolworths RDC - Logistic Division (Woolworths) in September 2007 and worked on a casual basis in a position which involved picking and packing as well as occasionally driving a forklift. She was dismissed on 4 February 2014 after a period of absence from her employment due to illness. She subsequently lodged an unfair dismissal application on 28 March 2014, being 31 days after the 21 day period set by s.394 of the Fair Work Act 2009 (Cth).

[2] However, Ms Madden submits her application was not filed within the 21 day period because of “representative error” 1 by her Union, the National Union of Workers (the NUW). She now seeks an extension of time in which to make her application.

[3] Section 394(3) of the Act allows an extension of time to be granted if the Commission believes there are “exceptional circumstances” to warrant the exercise of this discretion. It provides:

“(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.” 2

The Issue to be Determined

[4] Taking into account the various considerations contained in s.394(3) are there “exceptional circumstances” existing in this matter to warrant the Commission exercising its discretion to grant Ms Madden additional time in which to make her unfair dismissal application?

The Evidence and Submissions

[5] Both parties addressed the various considerations in s.394(3) that the Commission is required to take into account.

(a) the reason for the delay

[6] Ms Madden commenced with Woolworths in September 2007 as a casual employee. In June 2013 she underwent an operation after experiencing some ongoing health issues. Further complications developed and she was unable to return to work for an extended period. She therefore requested six months of unpaid leave, however, ongoing health issues again meant she was not able to return to work at the end of this period.

[7] Ms Madden said she kept Woolworths advised of her medical condition and met with Company representatives in December 2013 in a meeting organised at her initiative. An NUW representative also attended as a support person. During the course of that meeting she was asked to provide medical certificates verifying her need for time off. She said a similar discussion took place again in January, and she was again asked to provide confirmation from her doctor about her health condition during the period she had been absent from work. She said she provided this letter in another meeting on 4 February, but was told then that she was going to be terminated. A letter was then sent to her home address, dated 6 February, confirming her dismissal.

[8] Ms Madden said that shortly after this time she spoke to a local delegate from the NUW and was put in contact with a person who she knew as “Dario,” and understood to be a lawyer employed by the Union. She understood he was going to speak to Ms Alison O’Neal, the HR Manager at Woolworths, “... about my situation. I was trying to get my job back and I believe that the NUW was doing what they could to make this happen.” 3 She believed at this time there were ongoing negotiations taking place about the possibility of her again being employed by Woolworths.

[9] She also stated she was not aware of the 21 day time limit to file an unfair dismissal application until told about it by the NUW’s lawyer “on or about 21 February 2014.” 4 She said he told her “my application would need to be filed by the next Tuesday,” being four days later.5 She stated, “At this point I told Dario to do what he considered best for my circumstances. In the context of the discussion about the option of making an application to the Commission, I intended this statement to mean that Dario should file the application,” and “I understood that the NUW would file an application with the Commission on my behalf at that time.”6

[10] She said that when she next spoke to the NUW she “discovered that no application had been lodged with the Commission”. 7 However, the NUW told her they would continue to have further discussions with Woolworths about her possible reinstatement. She said she was “really upset by this news,”8 and, “I was not aware at this time that I could file an application out of time and have the reasons for the delay heard.”9 She said she was again in contact with the NUW after further time passed with no progress. At that point she asked if she could get her “own lawyer to assist” and the NUW agreed.10

[11] On 27 March she met with a representative of the law firm Nevin Lenne Gross who proceeded to lodge an unfair dismissal application on her behalf the following day. She stated in conclusion, “I am hoping that my application for an extension of time will be successful as I feel that I was unfairly treated by my employer. I believe that they were aware of the reasons for my absence and are trying to find a reason to justify my dismissal.” 11

[12] Ms Madden submits “.. these circumstances before the commission are exceptional. It is unusual for a union-represented employee to fail to lodge an application with the commission regarding a dismissal. Further, it is out of the ordinary course for a union not to inform the applicant that she could make a late lodgment of her application after the 21 days had expired and to only rely on the internal processes available. Further, it is uncommon for someone in the position of the union to not act on the applicant’s instructions to file the application when discussed in the context of the time limit and the need to file by that time line.” 12

[13] Ms Madden submits that, in all the circumstances, the reason for the application being lodged out of time is solely due to “representative error.” She submits she gave implied instructions to the representative from the NUW, whom she understood to be a lawyer, to lodge an application on her behalf within the 21 day time period, and was distressed when she found this had not occurred.

[14] She also submits she was not made aware it was possible to make application seeking an extension of time until she decided to seek advice elsewhere and met with her current legal representatives. Within 24 hours an application was lodged on her behalf.

[15] Ms Madden relies on the decision of a Full Bench in Robinson v Interstate Transport Pty Ltd 13 to support the submission she:

“...was entitled to rely upon the unions representative to act on her implied instructions to file an application and was therefore blameless for the delay in lodgement of the application. Further, as the Applicant was not informed of her option of lodging an application out of time, she cannot further be viewed to have been responsible for not filing an application prior to 28 March 2014.” 14

[16] She also seeks to distinguish the circumstances in this matter from those found in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 15:

“...as the failure of the NUW to file the application within the time-period and the subsequent failure to inform her of the capacity to make a late lodgement of an application covers the entire period in which the application was late”. 16

[17] She submits the circumstances in this matter can be considered to be “uncommon and unusual” as in the matter of Ho v Professional Services Review Committee No 295. 17

[18] She also submits the absence of any documentation in relation to the Union’s involvement does not mean, and should not be inferred to mean, her evidence is not to be believed. Ms Madden also seeks to distinguish the decision in Clark noting, firstly, her application was one month, rather than “months” out of time. Secondly, clear instructions were given, but not acted upon, and this situation was compounded when she followed up with the Union, found the application had not been lodged, but was not told about the possibility of making application seeking an extension of time.

[19] She also seeks to distinguish the decision in Sharon McLennan v Northern Territory Stolen Generation 18 (McLennan), relied upon by Woolworths, because unlike the circumstances in that matter she did follow up with her representative about the progress of her claim indicating a belief an application had been made on her behalf. She also submits she sought information about any remedy that might be available in a timely way, but was ultimately let down by the actions or inaction of the Union. She also submits she was not only pursuing an internal resolution of the matter, but simultaneously pursuing “the external option of making an application to the Commission.”19

[20] Woolworths submits the evidence has not disclosed the existence of representative error by the NUW. It submits that for the Commission to find in favour of Ms Madden it would need to be satisfied that –

• the NUW were given clear instructions to file an application but failed to do so;



• having failed to file within the 21 day time limit it subsequently failed to seek an extension of time; and



• having been given clear instructions to file it failed to make any file notes or keep any other record of its interaction with Ms Madden.

[21] Woolworths submits these findings are not open to the Commission based on Ms Madden’s evidence and the relevant authorities.

[22] Woolworths refers, in particular, to the Full Bench decision of Clark v Ringwood Private Hospital 20(Clark)in support of its submissions. It noted that the Commission found in that matter that representative error may be a sufficient reason to extend the time in which to make application. However, the decision also set out a number of general propositions which should be taken into account in this regard including:

“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 his/her representative and took no steps to inquire as to the status of his/her claim. A different situation exists where an applicant gives clear instructions to his/her 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 the claim is lodged.” 21

[23] In its submission there is no representative error in the present matter of the kind found to exist in Clark as Ms Madden cannot be said to have given clear instruction to the NUW to file an unfair dismissal application. In its submission her evidence that she told the NUW representative to “do what he considered best for my circumstances” could mean any number of things and is inherently ambiguous. In its submission it cannot be construed as a clear instruction to file an application as the decision in Clark requires.

[24] It also submits Ms Madden cannot be considered to be blameless in this matter and the delay was, in part, occasioned by her conduct being her failure to give clear instructions to file an application. It contrasts this situation with one where the Applicant gives “clear instructions” to their representative to lodge an application, but the representative fails to carry out that instruction, through no fault of the Applicant. In its submission a clear and express instruction is required, and any failure by the NUW to act is because of the absence of that clear instruction. It also submits any failure to advise about the ability to make application out of time is only relevant if clear instruction was given in the first place.

[25] It also sought to distinguish this matter from the Full Bench decision in Robinson v Interstate Transport Pty Ltd 22relied upon by Ms Madden. It submits in that matter the employee sought legal advice and gave clear instructions to file an application. However, the Solicitor subsequently overlooked a reminder to file the application and as a consequence it was filed three days out of time. It submits:

“By way of contrast, the Applicant's claim of representative error in the present case is used to excuse her own failure to act in circumstances where:

(a) she knew about the 21 day time limit;

(b) she knew when the 21 day time limit expired;

(c) she took inadequate steps to ensure that her application was filed; and

(d) it is not clear what, if any steps she took in the month following the expiry of the 21 day time limit.” 23

[26] In its submission the circumstances in the present matter have more in common with those in the matter of McLennan where Commissioner Spencer found there was no evidence to support the Applicant’s “strong belief” the Union would file an application on her behalf. It also submits the absence of any documents, file notes or emails held by the NUW, relating to Ms Madden, provides further support for the conclusion she did not give instructions to the Union to file an application on her behalf.

[27] In regard to the reasons for the delay it also submits Ms Madden’s lack of understanding of the fact an application could be filed out of time is “immaterial” because ignorance of the time limits is not, of itself, an exceptional circumstance.

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

[28] Ms Madden acknowledges she was made aware of her dismissal on 4 February 2014 and received confirmation in writing two days later. This is not in dispute.

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

[29] Ms Madden submits she took action immediately to dispute her dismissal. She first made contact with a local NUW delegate and was then referred to a lawyer employed by the NUW. She initially understood the Union was engaged in discussions with Woolworths seeking to have her reinstated. She then discussed the possibility with the NUW of making an unfair dismissal application and was made aware of the 21 day period for lodging an application. She submits she was entitled to infer from this discussion an application would be lodged on her behalf by the Union within this time period.

[30] Woolworths submit that prior to 27 March 2014 the only steps taken by Ms Madden were to have the NUW conduct discussions with Woolworths on her behalf. It submits this situation is consistent with that in Prasad v Alcatel–Lucent Australia Ltd 24 where the Full Bench upheld a decision at first instance not to grant an extension of time on the basis that the Applicant had pursued internal resolution of her dismissal.

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

[31] Ms Madden submits Woolworths would not suffer prejudice if she is granted additional time in which to make application because they are a “large employer of considerable resources”. 25 She also submits the delay of 31 days is “not of sufficient length in and of itself to give rise to a general presumption of prejudice.”26

[32] Woolworths submits this is a neutral consideration.

(e) the merits of the application

[33] Ms Madden submits her termination was harsh, unjust and unreasonable and she was not afforded a “fair go all round.”

[34] She submits the letter of termination, dated 6 February, stated that the reason for her dismissal was her absence from the workplace for a non-prescribed period of greater than 3 months. She submits this is not a valid reason for termination. In her submission Woolworths was aware of the health issues she was dealing with, and the reasons for her absence from work, and did not take issue with her period of unpaid leave until the meeting arranged by her in December 2013. She submits her application has substantial merit and this should provide support for her application.

[35] However, Woolworths submits Ms Madden’s substantive case is weak. It notes, in particular, that Ms Madden was a casual employee who was unavailable to be rostered from 1 June 2013 until 4 February 2014, and it was reasonable in those circumstances for it to seek medical evidence about her inability to be rostered. It also submits that, “despite numerous requests, the Applicant provided some, but not all, of the medical certificates sought by the Respondent. The Respondent submits that, after an eight month period, having not received the medical certificates sought (despite numerous requests), the Respondent acted reasonably in terminating the Applicant’s casual employment,” and further, “once the Commission receives all evidence, it will be satisfied that the reasons for terminating the Applicant’s casual employment were sound, defensible and well founded.” 27

[36] Woolworths also made reference to the decision in Kyvelos v Champion Socks Pty Ltd 28 which found the Commission is generally not required to embark on a detailed consideration of the substantive case in an extension of time application. However, it submits that on balance the merits of the application are a neutral consideration in any determination of this matter.

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

[37] Ms Madden submits the strong merits of her case, and previous decisions in matters where representative error has been the reason for delay, support her application.

However, Woolworths submits there are no persons in a similar position that can be compared to Ms Madden and this is again a neutral factor.

Consideration

[38] Ms Madden has clearly been through some difficult times in the past two years. Various medical problems, an operation, and the complications that followed, have all combined to mean she has been unable to make herself available to be part of the casual roster at Woolworths for more than twelve months. Woolworths accordingly decided to terminate her employment in February.

[39] However, in circumstances dealt with in detail already in the submissions and evidence, Ms Madden’s unfair dismissal application was lodged 31 days after the 21 day period provided for in the Act. There is, firstly, no dispute between the parties as to the relevant authorities, and what is required to establish that exceptional circumstances exist to warrant the exercise of the Commission’s discretion to extend the time in which to make application. In the decision in Nulty v Blue Star Group 29the Full Bench stated in an often referred to extract at [13] to [14]:

“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.

Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 30

[40] However, while agreement exists about what is required to constitute “exceptional circumstances” there is clearly a difference of view between the parties about whether those circumstances exist in the context of this matter. Section 394(3) requires that the Commission have regard to the various considerations in the sub section in determining an application for an extension of time. In this case, while there are differences of view about “the merits of the application,” which will only be resolved if the substantive issues are determined, the key issue centres on the reason for the delay. However, I now turn to deal with the relevant circumstances, and the submissions of the parties, by reference to each of these considerations.

(a) the reason for the delay

[41] Ms Madden submits the reason for the delay in lodging is all to do with “representative error” for the reasons already set out in her submissions and evidence. In summary, she sought advice from the NUW following her termination and after discussions, which canvassed both direct discussions with Woolworths about her being reinstated, and the possibility of an unfair dismissal application being made, she told the NUW’s lawyer to “do what he considered best for my circumstances.”

[42] She subsequently discovered an unfair dismissal application had not been made within the requisite time period, and submits this “representative error” was compounded by the NUW neglecting to tell her about the possibility of lodging an application seeking an extension of time. Woolworths submits, in response, that given the principles established by the relevant authorities representative error cannot be found to exist because there is no evidence of a “clear instruction” from Ms Madden to the NUW to lodge an application on her behalf. It relies, in particular, on the Full Bench decision in Clark in support of this submission.

[43] In that matter an unfair dismissal application was lodged 48 days out of time, and the Applicant sought an extension of time on the basis of inappropriate advice provided to him by his Solicitor. The delay was due, in part, to the fact the Applicant’s letter of termination did not disclose the actual reason for his dismissal. The Full Bench was also dealing with a different legislative framework to that now contained in the Fair Work Act 2009. At that time s.170CE(8) of the Workplace Relations Act 1996 provided an application lodged out of time may be accepted if “the Commission considers it would be unfair not to do so.”

[44] The Full Bench in Clark stated “The following general propositions should be taken into account in deciding whether or not representative error constitutes an acceptable explanation for delay. Those propositions are as follows:

“1. 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.” 31

“2. 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.” 32

[45] Next follows the extract from the decision containing the principal that is primarily relied upon by Woolworths in this matter (and has already been cited in this decision.)

“3. 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 applicants efforts to ensure that the claim is lodged.

4. 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 pursuant to s.170CE (8).” 33

[46] Against this background Woolworths submits there is no evidence of a clear instruction by Ms Madden to the NUW to lodge an application on her behalf. It also submits she cannot be considered “blameless” in all the circumstances, as the lack of clear instruction from her contributed to the delay. It submits these circumstances have much in common with the decision of Commissioner Spencer in McLellan v Northern Territory Stolen Generations Aboriginal Corporation 34. In that matter the Applicant contacted the Union four days after her dismissal, however, it took the Union “some time” to respond to her enquiries. However, she was informed about the timeframe in which an application was to be made, and indicated she “strongly believed” the Union would make application on her behalf. However, when she made enquiries with the Union, and discovered an application had not been lodged, she immediately went to the local Commission Registry and made application that day, but her application was by then 2 days out of time.

[47] Commissioner Spencer, firstly, indicated:

“[24] A Respondent should be able to rely on compliance with statutory time frames. The Applicant’s submissions do not adequately explain the delay.” 35

[48] In what are similar circumstances to the present matter she continued to indicate:

“[31] There is an absence of information regarding the Union’s involvement. Therefore, to determine whether the Union’s actions in this matter amounted to representative error so as to be sufficient reason in extending time, the actions of the Applicant must be examined.” 36

[49] She continued:

“[33] On the evidence, there is no firm basis as to why the Applicant held such a belief that the Union would lodge her application on her behalf. The particular circumstances of this matter suggest that it would fall within the first example provided in the matter of McConnel v A and P M Fornataro, outlined above. That is, there is no evidence to suggest that the Applicant gave clear instructions to the Union to lodge an application, nor is there evidence to suggest that the Applicant took sufficient steps to enquire as to the status of her claim.” 37

[50] She stated in conclusion:

“[55] No causative link was established on the basis of the circumstances, that justified why the Applicant (in the knowledge of the time limit), did not query whether her application had been filed. There was no evidence from the Applicant or the Union regarding a definite agreement for the Union to file the application on behalf of the Applicant, or any evidence on impediments to lodgement. Further, the Applicant did not query the lodgement with the Union. The Applicant was aware that her employment had been terminated on 5 October 2011, as a result of the telephone call on that day.” 38

[51] However, Ms Madden, firstly, submits the decision in Clark can be distinguished on the basis her application was only one month, rather than months, out of time. Secondly, the discussions she had with the NUW about the timeframe can be construed as a clear instruction for an application to be lodged within that timeframe, if the matter had not been resolved in the meantime. Ms Madden also seeks to distinguish the decision in McLellan because her subsequent enquiry to the NUW about the progress of her claim indicated she believed an application had been made.

[52] Ms Madden’s submissions also seek to rely on the decision in M N Robinson v Interstate Transport Pty Ltd 39(Robinson). In that matter the Applicant gave a clear direction to his Solicitor to make application on his behalf, and the subsequent delay in lodging was due to the Solicitor overlooking a reminder on the case management system. This was despite the fact that after providing instructions to his Solicitor the Applicant did little from that point to enquire about the progress of the matter. The application was dismissed at first instance and the decision appealed. The Full Bench, firstly, noted with approval the approach adopted in Clark. It continued to indicate:

“[29] We find that the Commissioner erred in diminishing the significance of the representative error on the basis that Mr Robinson was inactive between 13 May 2010 and 18 June 2010.” 40

[53] It continued to indicate in the next paragraph (references omitted):

“[30] 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 the providing clear instructions to Mr Taylor to lodge his application.” 41

[54] It continued:

“[36] We find that there was an acceptable explanation of the reason for the delay in lodgement of the application - representative error resulting from the oversight of Mr Robinson’s original representative of the electronic reminder whilst the filing of the application was within his care and responsibility. In circumstances where Mr Robinson had promptly sought legal advice following his termination, promptly executed a client agreement prepared on his instructions and, upon doing so, immediately instructed his original representative to lodge a general protections application, we find that he was entitled to rely upon his representative to act on his clear instructions to file an application and was blameless for the delay in lodgement of the application.” 42

[55] The Full Bench accordingly upheld the appeal concluding:

“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.” 43

[56] Woolworths, in turn, sought to distinguish this decision from the circumstances of the present matter, in particular, because in Robinson the Applicant gave a clear instruction to file an application on his behalf. It was his Solicitor’s failure to act in a timely way on that instruction that caused the application to be filed 3 days out of time.

[57] I now turn to consider the present matter in the light of these decisions and the submissions and evidence of the parties. Firstly, I have no reason to doubt the evidence of Ms Madden, and note Woolworths did not seek to challenge that evidence in cross examination. Her evidence indicates she told the NUW representative “... to do what he considered best for my circumstances,” after discussing both the attempts to have her reinstated by means of direct representations to Woolworths, and the option of lodging an unfair dismissal application. I also have no reason to doubt, based on this discussion, that Ms Madden believed an application would be filed within the requisite timeframe if the matter had not been resolved in the meantime. It also seems strange that she was not advised about the option of making application for an extension of time when told an application had not been lodged within the 21 day time period.

[58] However, I am also satisfied the relevant authorities regarding the matter of “representative error” require that a “clear direction” to be given to the representative, and despite Ms Madden’s belief about what would result from her discussions with her representative, the evidence indicates she did not give any such clear direction. I am also satisfied a direction to do what is “best for my circumstances” arguably leaves the nature of any future action to be taken at the discretion of her representative. For example, in such circumstances the representative might come to the view that the best way of assisting Ms Madden was to continue to pursue direct discussions with Woolworths with the objective of having her reinstated. Alternatively, the representative might be of the view she has little chance of success in pursuing an unfair dismissal application, and that option is therefore not the best one for her in all the circumstances. The representative might also form the view that pursuit of an unfair dismissal claim at that point might jeopardise the attempts to have her reinstated by means of direct discussions with the employer. There might be other considerations as well that the representative is weighing up and considering in terms of what is the appropriate course of action.

[59] This is not to say that any of these scenarios represents what actually happened in this case. However, they are all possible scenarios. In addition, in the absence of any clear direction from Ms Madden they demonstrate that her instructions to her representative left open various options and possibilities, in response, in terms of what might be best for her in all the circumstances. As indicated already it does seem unusual, on the one hand, that a representative in such circumstances would not lodge an unfair dismissal application, if nothing else as “insurance” in case all else fails. However, for the reasons stated above there may have been other considerations at play that provide an explanation as to why an application was not made.

[60] In addition, while Ms Madden seeks to rely on the decision in Robinson the circumstances in this matter are significantly different. In Robinson there was a clear and express direction given by the Applicant to her Solicitor to make application on his behalf. No such evidence exists in the present matter. In conclusion, I am satisfied in all the circumstances that it is appropriate to follow the authorities established by the Full Bench decision in Clark and, in the absence of evidence of a clear direction from the Ms Madden, it cannot be concluded that representative error was the reason for the delay.

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

[61] It is clear that Ms Madden was aware of her dismissal at the time it occurred.

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

[62] I am satisfied Ms Madden took action to dispute her dismissal shortly after it occurred, beginning with the discussions she had with the local NUW delegate. I am also satisfied that, despite the submissions of Woolworths, this involved both direct discussions with her former employer and the option of pursuing an unfair dismissal application.

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

[63] I am satisfied this is essentially a neutral consideration in the circumstances of this matter. In any case Woolworths is a large and well resourced employer and more than capable of responding to an unfair dismissal application if an extension of time were to be granted. Neither party made substantial submissions on this point and as such I am satisfied this is a neutral consideration.

(e) The merits of the application

[64] The relevance of the issue of “merit,” when determining an application for an extension of time, was considered by a Full Bench of the Australian Industrial Relations Commission in Kyvelos v. Champion Socks Pty Limited 44 when dealing with similar legislative provisions to those now contained in the Fair Work Act. The Full Bench held:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) 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.” 45

[65] The Full Bench continued:

“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 an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 46

[66] The views of the parties as to the respective merits of the matter have been set out at an earlier point in this decision and are not restated now. I have not formed a concluded view about those submissions and do not consider I am in a position to do so at this point on what are clearly contested issues. The decision in Kyvelos indicates in any case that I am not required to do so. In these circumstances I am satisfied this is also a neutral consideration in the determination of this matter.

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

[67] I am satisfied this is of limited relevance in the present matter and is again a neutral consideration.

Conclusion

[68] In coming to a decision in this matter I have had regard to each of the considerations in s.394(3) that I am required to take into account. As indicated already, I am satisfied “the reason for the delay” is the most significant of those considerations in all the circumstances of this matter. I am also satisfied that the Full Bench decision in Clark is authority for the proposition that representative error of the kind relied upon by Ms Madden requires evidence of a clear instruction to her representative to lodge an application, and a subsequent failure to carry out those instructions through no fault of hers. Again, as indicated I am not satisfied the facts provide evidence of any such clear instruction from Ms Madden to her representative. Therefore, based on the authority of the decision in Clark I am unable to come to a conclusion that the evidence points to the existence of representational error.

[69] I am also satisfied, in conclusion, that in the absence of any finding of representational error there are no other “exceptional circumstances” that might justify an exercise of the Commission’s discretion to provide an extension of time to Ms Madden to make her application. The application is accordingly dismissed.

COMMISSIONER

Appearances:

Mr T Redmond of Nevin Lenne & Gross appeared on behalf of the Applicant.

Mr B Avallone of Minter Ellison appeared on behalf of the Respondent.

Hearing details:

2014.

Melbourne and Wangaratta:

6 June.

 1   Exhibit R2 at para 3

 2   Fair Work Act 2009 (Cth) at s.394(3)

 3   Ibid at para 22

 4   Ibid at para 25

 5   Ibid

 6   Ibid at para 26

 7   Ibid at para 27

 8   Ibid

 9   Ibid

 10   Ibid at para 28

 11   Ibid at para 35

 12   Transcript at PN19

 13 (2011) 211 IR 347

 14   Exhibit R2 at para 10

 15 (2010) 197 IR 403

 16   Exhibit R2 at para 11

 17 [2007] FCA 388 at [25] as referred to in Exhibit R2 at para 12

 18   [2012] FWA 3167

 19   Transcript at PN44

 20 (1997) 74 IR 413; PR5279

 21   Ibid at 421

 22 (2011) 211 IR 347

 23   Exhibit A1 at para 20

 24   [2011] FWAFB 1515

 25   Exhibit R2 at para 17

 26   Ibid

 27   Ibid at paras 35-36

 28   Print T2421, 10 November 2000

 29   [2011] FWAFB 975

 30   Ibid at [13]-[15]

 31   Above n.xx at page 7

 32   Ibid

 33   Ibid at page 8

 34   [2012] FWA 3167

 35   Ibid at [24]

 36   Ibid at [31]

 37   Ibid at [33]

 38   Ibid at [35]

 39   [2011] FWAFB 2728

 40   Ibid at [29]

 41   Ibid at [30]

 42   Ibid at [36]

 43   Ibid at [41]

 44   Dec 1294/00 M Print T2421

 45   Ibid at [14]

 46   Ibid

Printed by authority of the Commonwealth Government Printer

<Price code C, PR552583>