Vinaina Viran v Bupa Aged Care Australia Pty Ltd

[2020] FWC 3022

[2020] FWC 3022

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vinaina Viran
v
Bupa Aged Care Australia Pty Ltd
(U2020/5882)

DEPUTY PRESIDENT DEAN SYDNEY, 10 JUNE 2020

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Vinaina Viran (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009.

[2] The Applicant’s employment with Bupa Aged Care Australia Pty Ltd (Respondent) was terminated with effect from 6 April 2020. The unfair dismissal application was lodged on 29 April 2020.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 27 April 2020. The application was therefore filed 2days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[4] A hearing was conducted on 5 June 2020 to determine whether to extend time for the application to proceed. Mr M Jones, solicitor, appeared for the Applicant and gave evidence. The Applicant was not present at the hearing and did not give evidence. Ms A Costello appeared for the Respondent.

[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may 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 can be considered exceptional.2

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

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

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

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

(e) the merits of the application; and

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

[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.

Reason for the delay

[8] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 3

[9] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. While the period does not include the period from the date of the dismissal to the end of the 21 day period, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 4

[10] The Applicant’s lawyer, Mr Jones, gave evidence that the reason for the delay was representative error, and provided a witness statement to the following effect:

“On 7 April 2020, the applicant made contact with our office to seek advice in relation to an unfair dismissal application. The applicant was advised that if she wished to proceed with her application, it must be filed within 21 days of the date after dismissal. The 21 day expired on 28 April 2018.

On 23 April 2020, the applicant instructed that she wished to proceed with her application. An appointment was scheduled on 27 April 2020 to take instructions to prepare her unfair dismissal application.

On 27 April 2020, I had a conference with the applicant. She instructed me to proceed with an unfair dismissal remedy application.

On 28 April 2020, I commenced to draft the applicant’s unfair dismissal application. Unfortunately, I was unable to complete the application and file it with the Fair Work Commission before the deadline. This was because I was involved in another Fair Work Commission directions hearing that day (proceedings C2020/2197). I was intending on completing and filing the applicant’s unfair dismissal application after the directions hearing. Unfortunately, the directions hearing, and the work required after the directions hearing, took much longer that I expected. Consequently, I did not have sufficient time to complete and file the applicant’s unfair dismissal application.

The following day, 29 April 2020, I filed the applicant’s unfair dismissal application with the Fair Work Commission’s Sydney Registry.”

[11] In Mr Jones’ oral evidence, he corrected the date the Applicant instructed him that she wished to proceed with her application, being 22 April and not 23 April 2020.

[12] During the course of the hearing, Mr Jones was made aware that the 21 day time period expired on 27 April, and not 28 April as he had calculated.

[13] The Respondent contended that the Applicant received advice of the 21 day time limit the day after her dismissal took effect, then waited 15 days to discuss the matter again with her lawyer on 22 April, had another conference with her lawyer “to give instructions” the day the application was due (i.e. 27 April 2020) and then her application was eventually filed 2 days later on 29 April 2020. That is, she left it to the last minute to provide fulsome instructions to her solicitors in order for them to file, which they did some 2 days later.

[14] 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 5:

“[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.’” (citations omitted)

[15] Having considered the evidence before me, I am satisfied that part of the delay can be explained by representative error, in that Mr Jones had calculated that the 21 day period ended on 28 April rather than 27 April 2020.

[16] However, as outlined in the cases above, the Applicant’s conduct during the 21 day period is also a relevant consideration. The Applicant was fully aware of the 21 day time limit having been so advised the day after her dismissal. She advised Mr Jones’ office on 22 April that she wanted to proceed with her application. Mr Jones’ evidence was that the first opportunity after 22 April he was available to meet with the Applicant was 27 April, which was the last day of the 21 day period. That Mr Jones was not available for a few days after the Applicant called his office is not out of the ordinary, unusual or special.

[17] While I accept that in most circumstances an applicant would be entitled to rely upon their legal representative to act on their instructions and file an application, it is clear that the Applicant did not provide full instructions, sufficient for Mr Jones to be able to make the application, until the 21^st day.

[18] Overall, this weighs slightly against a conclusion that there are exceptional circumstances.

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

[19] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This factor weighs against the Applicant because she had the benefit of the full 21-day period to lodge an application.

Action taken to dispute the dismissal

[20] There is no evidence that the Applicant took any steps to dispute the dismissal other than the making of this application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[21] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[22] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[23] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[24] It is clear that representative error is not in and of itself sufficient to justify a finding of exceptional circumstances. All of the matters in s 394(3) are required to be considered.

[25] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

M Jones for Vinaina Viran.
A Costello for Bupa Aged Care Australia Pty Ltd.

Hearing details:

Sydney (By telephone).
2020:
June 5.

Printed by authority of the Commonwealth Government Printer

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 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 4   Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349.

 5   [2011] FWAFB 2728.