Susan Rogers v Melton City Council

[2014] FWCFB 4000

[2014] FWC 2195 [Note: An appeal pursuant to s.604 (C2014/4183) was lodged against this decision - refer to Full Bench decision dated 19 June 2014 [[2014] FWCFB 4000] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susan Rogers
v
Melton City Council
(U2014/3797)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 APRIL 2014

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

[1] Ms Susan Rogers made an application alleging that the termination of her employment by Melton City Council (MCC) was unfair.

[2] Ms Rogers’s employment with the MCC ended on 10 December 2013. The application was therefore not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission (the Commission) can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

Preliminary matters

[4] I granted permission to both parties to be represented by legal practitioners as I determined it would enable the matter to be dealt with more efficiently.

[5] Directions had been issued to both parties to file material. The MCC complied with the directions. Ms Rogers did not file material in accordance with those directions. It was said that Mr Rainer Ellinghaus, Ms Rogers’ legal representative, was not familiar with Commission’s procedures and did not understand the directions and had only realised his error when contacted by the Commission and the MCC’s representatives.

[6] Subsequently on 24 March 2014, two affidavits were filed and served by Ms Rogers and the next day, submissions were filed and served. Mr Gary Katz, the lawyer for the MCC, submitted that the affidavits of Ms Rogers and Mr Ellinghaus should not be admitted into evidence. I determined to admit the evidence and gave reasons for doing so at the hearing of the matter.

[7] As there was no application by Mr Katz for the matter to be adjourned, to enable him to properly cross examine the witnesses, the matter proceeded to finality. Mr Katz did seek a delay in putting his final submissions until such time as the transcript was available, however I declined that application because the matters raised in cross examination were not lengthy and Mr Katz would have been able to deal with that evidence at the hearing.

Are there exceptional circumstances?

[8] As noted in [3], the Commission may allow a further period of time for the application to be made by a person under s.394(1), if the Commission is satisfied that there are exceptional circumstances, taking into account:

The reason for the delay: s.394(3)(a)

[9] Ms Rogers gave evidence that she had engaged Mr Ellinghaus to represent her in her employment dispute with the MCC. She said that prior to her dismissal she had discussed a wrongful dismissal claim with Mr Ellinghaus. It was her evidence that she instructed Mr Ellinghaus to file her unfair dismissal claim after she had been dismissed and that she trusted him to file it in a timely fashion. There was no evidence that Ms Rogers knew that there was a time limit for filing the application.

[10] Mr Ellinghaus gave evidence that December 2013 was a personally difficult time for him and that he had for a long period of time been working excessive hours. It was his evidence that his office closed from 20 December 2013 until mid January 2014 and that he had no diary reminder system in place for that period. Further, he was under the mistaken belief that time did not run during the Christmas Holiday period. He gave evidence that he came into his office in early January 2014 because he was “worried” about this matter and a letter and application were prepared on 10 January 2014. No satisfactory explanation was provided by Mr Ellinghaus as to why it took a further three days to lodge the application.

[11] Ms Rogers’ application should have been filed on 31 December 2013 and it was not filed until 13 January 2014.

[12] Mr Ellinghaus said he had instructions to file the application by Ms Rogers and the only reason it was not filed was because of his error.

[13] Mr Katz submitted that Mr Ellinghaus’ reliance on his personal difficulties does not explain the delay as he was able to correspond with the MCC during that time. Mr Katz also submitted that Mr Ellinghaus had two weeks before his office closed to submit Ms Rogers’s application.

[14] It was submitted that Ms Rogers took no steps, after she instructed Mr Ellinghaus at the latest on 19 December 2013, to file her application, to follow up her application.

[15] Mr Katz submitted that I could not find on the evidence that Ms Rogers had given Mr Ellinghaus instructions to file an unfair dismissal application because there was no reference to an unfair dismissal in any of the correspondence sent to the MCC.

Whether Ms Rogers first became aware of the dismissal after it had taken effect: s.392(3)(b)

[16] It was not disputed that Ms Rogers was aware of the dismissal on the day it took effect and therefore she had the full 21 days to lodge her application.

Any action taken by Ms Rogers to dispute the dismissal: s.394(3)(c)

[17] While Ms Rogers did not take any action after the dismissal to dispute her dismissal, it was not contested that the MCC was aware that Ms Rogers vigorously disputed the basis on which she was dismissed and the MCC was on notice that she would contest her dismissal, albeit it had not formally put the MCC on notice that she would file an unfair dismissal claim. I do not accept the submissions that the failure to take any action after the dismissal weighs against the finding of exceptional circumstances. At most it is neutral.

Prejudice to the employer (including prejudice caused by the delay): s.394(3)(d)

[18] No submissions were put to me that the employer would suffer any particular prejudice if the extension of time was granted.

The merits of the application: s.394(3)(e)

[19] The parties agreed that given the significant factual dispute between the parties, this criterion should be assessed as neutral.

Fairness as between the person and other persons in a similar position: s.394(3)(f)

[20] No submissions were made on this criterion.

Conclusion

[21] I accept the submissions of Ms Rogers that I do not need to find that her legal representative had a reasonable excuse for his failure to lodge her application in time. It is her reason that is relevant not his. Mr Ellinghaus failed in his professional obligation to Ms Rogers, both when he failed to follow through with her instructions to lodge her application and in addition when he failed to comply with the directions to file material in support of her application to extend time.

[22] However, I accept that Mr Ellinghaus’ failure is not Ms Rogers’ failure. Ms Rogers instructed her solicitor to file her application. I do not accept the submission of Mr Katz that Ms Rogers’ evidence on this was uncertain. It is true that Ms Rogers could not recall with any precision when she spoke to Mr Ellinghaus or how many times she spoke to him. Her evidence however was clear that he had her instructions to file an unfair dismissal claim and that she trusted him to file the application.

[23] I do not accept the submission that, because there was no mention of an unfair dismissal claim in the correspondence between the parties prior to the dismissal, Ms Rogers did not instruct Mr Ellinghaus to file an unfair dismissal application. Both Ms Rogers and Mr Ellinghaus gave evidence that Ms Rogers gave those instructions.

[24] I accept that Ms Rogers did not take any steps to follow up with Mr Ellinghaus about whether he had complied with her instructions. While Ms Rogers had a responsibility to ensure that her legal representative followed through with her instructions, in this case the closure of Mr Ellinghaus’ office prevented her from following this up with him. Further she gave evidence that given Mr Ellinghaus’ personal circumstances, she didn’t want to bother him when his office was closed. This was not unreasonable in the circumstances.

[25] In this case, I accept that Ms Rogers was blameless and that she had a reasonable explanation for the delay.

[26] When weighing up the reason for the delay with the other criteria, in particular the lack of prejudice to the MCC, I am satisfied that there are exceptional circumstances warranting an extension of time.

[27] I have decided to exercise my discretion to grant an extension of time. Mr Rogers worked for the MCC for over two years. The MCC was on notice that Ms Rogers would contest their findings. I consider it would be unfair to deny Ms Rogers the opportunity to contest her dismissal, in circumstances where the MCC would suffer no prejudice. The application will now be referred to conciliation.

DEPUTY PRESIDENT

Appearances:

Mr M Champion for the Applicant

Mr G Katz for the Respondent

Hearing details:

2014;

Melbourne:

27 March.

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