Tyler Dreilich v Aldi Stores (A Limited Partnership)
[2021] FWC 4021
•9 JULY 2021
| [2021] FWC 4021 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Tyler Dreilich
v
ALDI Stores (A Limited Partnership)
(U2021/5084)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 9 JULY 2021 |
Application for an unfair dismissal remedy - extension of time – representative error - whether exceptional circumstances exist – discretionary considerations – extension granted
[1] On 10 June 2021 Tyler Dreilich (Mr Dreilich) lodged an unfair dismissal application under section 394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment by ALDI Stores (A Limited Partnership) (Aldi or the employer) which took effect on 19 May 2021.
[2] Mr Dreilich’s application was made twenty-two days after the dismissal took effect, being one day beyond the statutory time limit. Mr Dreilich says that late lodgement was a result of a calculation error by his representative union, the Shop Distributive and Allied Employees Association (SDA).
[3] The matter was allocated to me to determine whether an extension of time should be granted. This decision deals only with that issue.
[4] I issued directions on 16 June 2021. Information about an extension of time and factors the Commission is required to take into account were provided to the parties.
[5] Mr Dreilich and Aldi filed materials in advance of the hearing.
[6] I heard the matter by video on 8 July 2021. Mr Dreilich was represented by the SDA. Aldi were legally represented. Permission had been opposed by Mr Dreilich. By decision of 6 July 2021 I granted permission for the employer to be represented on the extension of time issue 1.
Evidence
[7] Mr Dreilich gave sworn evidence on his witness statement 2 as did an Industrial Officer of the SDA, Mr Amin3.
[8] Both Mr Dreilich and Mr Amin gave evidence clearly and neither placed gloss on their conduct. Their evidence is reliable with two caveats.
[9] Firstly, in oral evidence Mr Dreilich said that between 19 May 2021 and 6 June 2021 (after giving instructions to proceed with an unfair dismissal application) he followed up his situation with an SDA organiser via text and email messages. I do not make such a finding. Reference was not made in Mr Dreilich’s written statement to such communication. Those texts and emails were not brought into evidence. The organiser was not called. Whilst it is possible Mr Dreilich did so, it is not more probable than not. I am unable to make that finding to the relevant standard of proof.
[10] Secondly, Mr Dreilich said that on 9 June 2021, after sending an email earlier that day (at 9.07am), he followed-up with the SDA to check on his application. Mr Amin’s evidence was that he did not recall such follow-up. I prefer Mr Amin’s recall. Mr Dreilich certainly sent an email at 9.07am that morning, which is considered in the body of this decision. However, I do not find that he made further contact with the SDA that day.
[11] There are no other material factual disputes.
[12] Following the hearing I reserved my decision.
Facts
[13] Aldi is a foreign-owned retailer of grocery and related items.
[14] Mr Dreilich was employed as a warehouse operator picking orders. He had worked for one year nine months prior to dismissal. He is 23 years old.
[15] Mr Dreilich was dismissed on 19 May 2021 on performance grounds. He had been called to a meeting that day by Aldi management, where he was notified of dismissal. He is a member of the SDA and was supported at that meeting by an SDA organiser Mr Taliana.
Mr Dreilich’s conduct
[16] Mr Dreilich believed his dismissal to be unfair. On 19 May 2021, immediately following the meeting, he discussed his options with Mr Taliana. He was told that a right existed to make an unfair dismissal application and that if he wanted to do so this could be pursued through the SDA. He told Mr Taliana that he “would like to pursue an unfair dismissal claim”.
[17] The next Mr Dreilich heard on the matter was a phone call from Mr Amin of the SDA on 8 June 2021, some twenty days after dismissal. It was during this phone call that Mr Dreilich was told of the 21 day limit to file 4.
[18] Mr Amin provided Mr Dreilich an overview of the unfair dismissal process and said that he needed information from Mr Amin to lodge an unfair dismissal claim. Over the telephone on 8 June 2021, Mr Dreilich repeated his instructions that he wished to make an unfair dismissal claim.
[19] At 4.45pm on 8 June 2021 Mr Amin sent Mr Dreilich the following email: 5
“Hi Tyler,
As discussed, you have provided instruction to file an Unfair Dismissal claim in the Fair Work Commission.
The deadline to do this is tomorrow.
Can you urgently provide:
1. A history of all prior disciplinary meetings with as much information as possible including who was there, when it occurred, what it was in regards to, the outcome etc
2. All relevant documentation you have regarding your dismissal
3. A statement as to what happened at the meeting you were terminated at
4. Why you believe your dismissal to be unfair including any circumstances that may have impact your pick rate
I am currently in the process of drafting your unfair dismissal claim.
Give me a call if you have any questions.
Kind regards,
Ali Amin” (emphasis added)
[20] Half an hour later (5.14pm) the SDA sent Mr Dreilich an agreement for it to act on his behalf, and requested it be signed and returned 6.
[21] Shortly thereafter (6.29pm) Mr Dreilich sent the SDA a signed copy of the agreement to act.
[22] Then, again shortly thereafter (8.03pm), Mr Dreilich sent Mr Amin an email with the information he had requested. It read in part: 7
“hey again hopefully this will be enough for you to be able to go off of. If you need any more information please let me know as I will be able to get back to you as soon as possible.
[content re employment and related issues]
Kind regards
Tyler Dreilich”
[23] Early in the morning of 9 June 2021, Mr Amin read Mr Dreilich’s email, and had some further questions. He phoned Mr Dreilich and sought additional information (about a workers compensation matter).
[24] At 9.07am that day (9 June 2021) Mr Dreilich sent Mr Amin a further email attaching the information sought. He added “I believe this is everything I have”.
The SDA’s conduct
[25] Where a dismissed member informs an organiser that they wish to pursue an unfair dismissal claim, the SDA’s usual processes are as follows: the organiser prepares a case report for a case manager, the case manager reviews the report and where appropriate gives it to the industrial team where it is triaged by the principal solicitor, who allocates the matter to an industrial officer, who then takes instructions from the member, and who then prepares the application and files the application.
[26] As noted, an SDA organiser (Mr Taliana) attended the disciplinary (termination) meeting as Mr Dreilich’s support person on 19 May 2021.
[27] Mr Taliana was told by Mr Dreilich on 19 May 2021 that he (Mr Dreilich) wanted to pursue the unfair dismissal option.
[28] Mr Dreilich’s case was referred to the SDA’s industrial team on 4 June 2021 through the SDA’s electronic internal file management system. The file management system included an alert that the application required lodgement by 9 June 2021.
[29] That afternoon (4 June 2021) the SDA’s principal solicitor allocated the matter to Mr Amin.
[30] On 8 June 2021 Mr Amin telephoned Mr Dreilich to discuss the matter, to explain the SDA’s requirements, to seek more information and have instructions confirmed. Mr Dreilich confirmed instructions to lodge an unfair dismissal claim.
[31] The SDA sent Mr Dreilich emails (referred above) at 4.45pm and 5.14pm (8 June), and Mr Dreilich replied at 6.29pm and 8.03pm that day.
[32] Upon receiving the brief, on or about 4 June 2021 Mr Amin noted that the final date for lodgement was 9 June 2021. At that time, he made no independent calculation but simply referenced the automatically generated file management system details.
[33] Mr Amin commenced preparing Mr Dreilich’s application on 9 June 2021 once he received the information provided by Mr Dreilich (being the emails of 8.03pm the preceding day and of 9.07am that morning).
[34] The application was “mostly completed” 8 by close of business 9 June 2021.
[35] However, when preparing the application Mr Amin decided to perform a manual recalculation of the filing date requirement. Having read on the Commission’s web site that the 21 day period commenced the day following the dismissal taking effect (in this case, a Wednesday), Mr Dreilich scrolled down three whole weeks and determined that the last day for lodgement was three Wednesdays following, being 10 June 2021.
[36] Oblivious to the fact that he had made a counting error by using this day-of-the-week method rather than a counting method, Mr Amin immediately formed the view that he had until the following day to file the application.
[37] Although the application was mostly completed on 9 June 2021, Mr Amin considered that he had time to finalise it the following day.
[38] The following day Mr Dreilich sent the SDA a copy of a separation certificate. The SDA had not sought this information and was not awaiting it in order to file the application.
[39] At 5.30pm on 10 June 2021 Mr Amin lodged the application by email.
[40] It was not until contacted by the Commission on 11 June 2021 that Mr Amin became aware that the application was filed late. He advised Mr Dreilich of this on 18 June (unsuccessfully trying to contact him on 15 June). Until 18 June 2021 Mr Dreilich was unaware his application had been filed late.
Consideration
[41] Section 394(3) of the FW Act provides:
“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.”
[42] Mr Dreilich’s application can only proceed if he can establish that “exceptional circumstances” exist within the meaning of section 394(3).
[43] 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
[44] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.10 A decision whether to extend time under section 394(3) involves the exercise of a discretion.11
[45] I apply section 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”12
[46] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.
Status of the application
[47] I am well satisfied that Mr Dreilich’s unfair dismissal application is out of time and can only proceed if an extension of time is granted.
[48] The 21 day statutory period after Mr Dreilich’ dismissal took effect expired on 9 June 2021. That date is twenty-one calendar days after his dismissal took effect. As Mr Dreilich’s dismissal took effect on 19 May 2021, the first of those twenty-one days was 20 May 2021. Counting forward, the twenty-first of those days was 9 June 2021.
[49] The statutory requirement (section 394(2)(a)) is that an application “must” be made “within 21 days after the dismissal took effect” (emphasis added). What is required is lodgement “within” 21 days, not “after” 21 days or on the day after 21 days.
[50] Having filed his application on 10 June 2021, Mr Dreilich’s application is one day out of time.
[51] I now consider each of the factors in section 394(3).
Reason for the delay (section 394(3)(a))
[52] The reason for the delay in lodging an application is a factor that must be considered. 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
[53] 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
[54] 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
[55] The reason advanced by Mr Dreilich for the delay is representative error.
[56] The long standing approach adopted by the Commission and its predecessors establishes 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 that primary consideration must be given to the behaviour of an applicant to establish whether the applicant took all appropriate steps to action the application and did 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.”
[57] 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.”
[58] There is no doubt that Mr Dreilich’s representative, the SDA, made a calculation error. It was an error caused by using a lazy method of scrolling the same weekday across three weeks rather than counting the twenty-one days, as required by the FW Act. It may have been a rookie error but it came from an established industrial association. It was highly prejudicial to Mr Dreilich.
[59] The seriousness of the error was compounded by two factors.
[60] Firstly, Mr Amin decided to re-calculate on the twenty-first day (believing at the start of the re-calculation it to be the twenty-first day), only to then trust his re-calculation ahead of the date previously generated by the file management system.
[61] Secondly, Mr Amin was content to lodge on the final day for reasons of convenience even though applications are well able to be filed and received by the Commission prior to the twenty-first day. As noted by the Commission in recent decisions, the practice of an applicant choosing to wait until the final day for lodgement carries enormous risk including that of making a calculation error: 18
“…a decision to wait to do something until the last possible moment is fraught with risk. Mr Shaw had the whole of the 21-day period during which he could have made the application. He chose to wait until the last day. Mr Shaw elected to take the risk and, in doing so, he was caught out by his earlier miscalculation.”
[62] In two cases, that risk resulted in an extension of time not being granted 19.
[63] In this matter, that risk had been taken by Mr Dreilich’s representative, and not Mr Dreilich. This aspect must be taken into account in the context of the representative error submission considered as a whole.
[64] The primary focus then of the representative error explanation must focus on Mr Dreilich’s conduct.
[65] Considered overall, I do not consider Mr Dreilich to have been blameworthy for the delay.
[66] Firstly, Mr Dreilich indicated to his union on the very day of his dismissal that he wanted to pursue the unfair dismissal option.
[67] Secondly, Mr Dreilich acted very promptly to respond to communications from the SDA when he received the union’s two emails on the late afternoon of 8 June 2021. He returned the terms of agreement within one hour fifteen minutes and responded to the information sought within three hours and eighteen minutes. He also responded very promptly to Mr Amin’s request for further information on 9 June 2021 with his emailed response sent at 9.07am.
[68] Thirdly, Mr Dreilich provided the necessary information to his representative in order to have his application lodged within time.
[69] Fourthly, Mr Dreilich was provided no insight into the re-calculation of the deadline made by Mr Amin on 9 June 2021 nor to the fact that Mr Amin unilaterally decided to override the deadline in light of his (mis) calculation. Prior to 9 June 2021, Mr Dreilich had understood that his application needed to be filed by no later than that day. Mr Amin had told him in writing the previous day “The deadline to do this is tomorrow”.
[70] The submission by Aldi that Mr Dreilich was blameworthy rests on two pillars. It is said that Mr Dreilich should have followed up with Mr Amin on 9 June 2021 to make sure that the application was filed that day. It is also said that Mr Dreilich was reactive to the SDA during the twenty-two days after being dismissed, and did not pro-actively prosecute his intention and ensure his claim was filed on time.
[71] I do not accept this submission. There are cases in which a dismissed employee who fails to proactively follow-up with their representative during the delay period (or prior) contributes to the delay and is thus blameworthy. This, however, is not such a case. Though Mr Dreilich could have been more pro-active, he did not stand idly by waiting until the twenty-first day to take action. He instructed the SDA on the very day of his dismissal (first day minus one) and then repeated his instructions on day twenty. It was the SDA that sat on Mr Dreilich’s instructions until contacting him on day twenty. Mr Dreilich acted promptly in response to the SDA. Given that Mr Dreilich had no expertise in industrial matters it was not unreasonable to place reliance on his union as an experienced industrial association. Having been told by the SDA’s industrial officer on 8 June 2021 that 9 June 2021 was the deadline and having promptly provided information on the 8th and morning of the 9th of June, Mr Dreilich did not act unreasonably in not further following up the SDA on 9 June 2021 to check that the application had indeed been lodged. He could not have and indeed no reasonable person could have foreshadowed what Mr Amin did that day.
[72] For these reasons, there is a credible explanation for the delay and, in the context of this matter, the explanation of representative error weighs in favour of a finding of exceptional circumstances.
Awareness of the dismissal taking effect (section 394(3)(b))
[73] Mr Dreilich was aware from 19 May 2021 that his dismissal took effect that day.
[74] This is a neutral consideration.
Action taken to dispute dismissal (section 394(3)(c))
[75] Immediately upon being dismissed, Mr Dreilich informed his representative union that he sought their assistance to pursue an unfair dismissal claim.
[76] He acted promptly to subsequent requests for information by the SDA and in formalising his instructions, but did so reactively not proactively.
[77] Neither Mr Dreilich nor his representative union informed Aldi (prior to lodgement) of his intention to challenge the dismissal through the Commission.
[78] Considered overall, this is a neutral consideration.
Prejudice to the employer (section 394(3)(d))
[79] 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. 20
[80] Aldi submit that it would incur prejudice including by having to defend a late claim.
[81] A claim would have to be responded to, involving time and cost. However, the nature of the prejudice in this matter is not unique in any particular respect. Aldi have the capacity to manage and defend litigation of this type. The one day delay creates no material prejudice.
[82] However, the absence of prejudice would not itself be a reason to grant an extension.21
[83] This is a neutral consideration.
Merits of the application (section 394(3)(e))
[84] Aldi submit that the merits of Mr Dreilich’s application are weak and that this should weigh against granting an extension of time.
[85] It is apparent from Mr Dreilich’s application and his evidence that he is disputing both whether a valid reason existed and whether he was afforded procedural fairness. It is also apparent that Aldi intend to strongly contend otherwise.
[86] I have not conducted a merits hearing and none of these issues have been canvassed in any detail. It is not possible to form a view, even a provisional or preliminary view, as to whether the merits of Mr Dreilich’s case are strong or weak.
[87] In the circumstances, this is a neutral consideration.
Fairness between persons in similar position (section 394(f))
[88] No evidence or submissions from Mr Dreilich or Aldi raise issues of fairness with and between other persons.
[89] In these circumstances, this is not a relevant factor.
Conclusion on extension of time
[90] Two factors weigh in Mr Dreilich’s favour - that the delay period is very short (one day) and that the explanation for the delay (representative error) is credible.
[91] I have found that whilst Mr Dreilich could have been more proactive in following up the progress of his instructions, it was not unreasonable for a person with no experience of these matters, having given instructions, to await information and advice from specialists in his union and then react promptly, as he did.
[92] Overall, I have found that Mr Dreilich was not, in a material sense, blameworthy for the delay caused by the error of his representative. He had no insight, and could not have reasonably had insight, into the reasons why his application was filed on 10 June 2021 and not 9 June 2021 as he had expected.
[93] Decisions of the Commission in Shaw v Australia and New Zealand Banking Group Limited 22 and Harvey v Compass Group (Australia) Pty Ltd23, where applicant employees miscalculated and then forensically waited until the last day and were refused an extension of time, are distinguishable as those were not matters concerning representative error. This is not a case where the applicant employee himself made a miscalculation and forensically chose to wait until the last day. It was Mr Dreilich’s representative who took this risk, who then made a miscalculation on the final day, who then decided for reasons of his convenience to wait until the revised (and erroneously thought to be final) day, and who blindsided their member client in that sequence of cascading and flawed decisions. The manner by which Mr Dreilich was blindsided by the error of his representative and the circumstances overall were “out of the ordinary course”24.
[94] For these reasons I am satisfied that exceptional circumstances exist.
[95] I also consider it appropriate to exercise a discretion in favour of extending time. There are no discretionary reasons to not do so, and given that exceptional circumstances exist it is appropriate to do so.
Conclusion
[96] Having regard to the factors in section 394(3) of the FW Act, the time for lodgement of application U2021/5084 is extended so as to permit the application to be heard and determined by the Commission. An order 25 to this effect will be issued in conjunction with the publication of this decision.
[97] I also direct that Mr Dreilich’s application be referred for conciliation in advance of directions for its hearing and determination.
DEPUTY PRESIDENT
Appearances:
Mr A Amin, on behalf of, Mr T Dreilich
Ms P Noakes, with permission on behalf of, ALDI Stores (A Limited Partnership)
Hearing details:
2021
Adelaide (by video)
8 July
Printed by authority of the Commonwealth Government Printer
<PR731529>
1 Decision (unpublished) Email ‘Chambers – Anderson DP’ 6 July 2021 10.06am
2 A1
3 A2
4 Audio recording at approximately 11:36 minutes
5 A2 Attachment A
6 A2 Attachment B
7 A2 Attachment D
8 A2 paragraph 17
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 [2019] FWCFB 3288 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 [2010] FWAFB 499 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 Shaw v Australia and New Zealand Banking Group Limited[2014] FWC 3903 at [28] per Gostencnik DP
19 Ibid; Harvey v Compass Group (Australia) Pty Ltd at [2021] FWC 1375 at [96]
20 Brisbane South Regional Health Authority v Taylor [1996] HCA 25
21 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
22 [2014] FWC 3903
23 [2021] FWC 1375
24 Nulty at [13]
25 PR731530
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