Yogita Sharpe v Bvaq Pty Ltd
[2021] FWC 3161
•2 JUNE 2021
| [2021] FWC 3161 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Yogita Sharpe
v
BVAQ Pty Ltd
(U2021/3840)
COMMISSIONER CIRKOVIC | MELBOURNE, 2 JUNE 2021 |
Application for unfair dismissal remedy – application made 1 day out of time – extension of time required – no exceptional circumstances – no representative error – application dismissed.
[1] This decision concerns an application by Yogita Sharpe (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). The Applicant commenced employment with BVAQ Pty Ltd (Respondent), on or around 14 September 2005. She was most recently employed in the position of Analytical Sciences, Laboratory Manager.
[2] There is no contest that the Applicant’s employment with the Respondent was terminated with effect from 30 March 2021. The unfair dismissal application was lodged on 4 May 2021.
[3] The matter was allocated to me on 6 May 2021, and I issued directions that same day directing the Applicant to file by 13 May 2021:
“a signed witness statement (including any documents on which he (sic) relies) about each of the following:
• The effective date of dismissal;
• The reason(s) for the delay;
• Whether you first became aware of the dismissal after it had taken effect;
• Any action taken to dispute the dismissal;
• If there is any prejudice to the employer (including prejudice caused by the delay);
• The merits of the application; and
• Fairness as between you and any other persons in a similar position.”
[4] The material filed by the Applicant on 17 May 2021 included brief submissions. Notably, the Applicant did not file a witness statement in support of the application. At hearing, I granted leave to the Applicant and her representative, Mr Cameron Granger, to give oral evidence not withstanding that this was not provided by way of witness statement prior to the hearing, as was required by the directions.
[5] 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 3 May 2021. The application was therefore filed 1 day 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.
[6] The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.
[7] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute permits me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
[8] The matters that I need to take into account in considering whether I am satisfied there are exceptional circumstances are:
(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.
[9] Each of the matters needs to be taken into account in assessing whether there are
exceptional circumstances. 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. The individual matters might not, viewed in isolation, be
particularly significant, so it is necessary to also consider the matters collectively and to ask
whether collectively the matters show exceptional circumstances.
[10] 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 or unprecedented, nor do they need to be very rare. I must be satisfied, taking into account section 394(3), that there are exceptional circumstances. 1
[11] I now consider these matters in the context of the Application.
Reason for the delay
[12] The delay required to be considered in s.394(3)(a) is the period after the prescribed 21-day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21-day period.2
[13] 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 the circumstances must be considered.3
[14] The Applicant relies on representative error as the sole reason for the delay in filing.
Representative error
[15] The Applicant submits:
“39. The Applicant’s representative miscalculated the timeframe for lodgement of an unfair dismissal application, failing to take into account that the 21-day period is inclusive of the day of application.
40. The Applicant’s dismissal took place on 12 April 2021. As per the FWC Benchbook, the start-date for counting 21-days forward from time of dismissal occurs on the day following dismissal – in this case 13 April 2021.
41. The Applicant’s representative calculated that the 21 day period would therefore be 4 May 2021.
42. The Applicant’s representative failed to calculate 4 May 2021 as being inclusive within the 21 days.
43. It must be stressed that the late application was in no way the result of any actions of the Applicant herself. The late lodgement occurred purely as a result of representative error.”
…
“45. …
a. The reason for the delay was entirely a result of the Applicant’s representative miscalculating the 21 day period.” 4
[16] The Applicant’s submissions referred to an email of 18 April 2021, sent by the Applicant’s husband to Mr Granger referring to, amongst other things “the understanding that it would proceed to an unfair dismissal.” 5 The email was provided at the request of the Commission during the course of the hearing, and states as follows:
“Hi Cam,
Here is some correspondence and supporting doc’s.
As per letter, the termination date was Monday 12th April 2021.
In the new structure that was distributed on 31st March after Yogita was told that her position as an employee of BVAQ is being made redundant,
Nicole Osner is sitting in the Laboratory Manager position that Yogita held.
Appreciate your help and can discuss further when you are available.”
[17] As noted above, the email was sent from the Applicant’s husband’s work email address to Mr Granger’s Hotmail account. As can be observed by the words of the email set out above, there is no clear instruction given to Mr Granger to lodge the application. It is apparent from the email that there was no direct instruction given to Mr Granger by the Applicant, or her husband, at this time to lodge her application.
[18] In his oral evidence, Mr Granger stated that he:
“had a conversation with the Applicant on the 22nd of April which lasted from 10:33 to approximately 10:50. In which we had a conversation about the particulars of the Applicant’s employment and the circumstances in which she had been made redundant. We conversed about the prospects of an unfair dismissal case in this matter if, should we proceed down that path, and I received instructions from the Applicant to proceed with an application for unfair dismissal… Additionally, the Applicant’s husband contacted me on the 3rd of May to follow up where the application was, and I assured him that we’d have it lodged in the 21 days.” 6
[19] I note that , in the Applicant’s written submissions, Mr Granger states, in one paragraph that “the Applicant checked with her representative on more than one occasion to see if the Application had progressed” and in another that “[t]he Applicant’s husband contacted the Applicant’s representative on 22 April 2021 and again on 3 May 2021 following up on the application”. 7
[20] When the Applicant was questioned by me as to the date when she gave Mr Granger instructions to lodge her application, the following exchange occurred: 8
COMMISSIONER: At what point did you give Mr Granger instructions to file a claim?
APPLICANT: My husband did speak to Granger before we passed all the information to Granger…
COMMISSIONER: …When did you say to Mr Granger, “yes, I need you to make this application?”
MR SHARPE: in the days before (inaudible) …
APPLICANT: Yeah, my husband did speak to Mr Granger on the phone.
COMMISSIONER: So, you never gave Mr Granger instructions yourself to lodge a claim?
APPLICANT: I didn’t speak to him, but it was through my husband, so yes, we did approve that.
[21] Following the above exchange, I note the following exchange took place between the Applicant and Mr Granger: 9
MR GRANGER: Mrs Sharpe, on the 22 April, did yourself and your husband have a conversation with me by telephone that lasted for approximately 17 minutes in which you instructed me to lodge your application for unfair dismissal?
COMMISSIONER: Mr Granger…
APPLICANT: Yes.
COMMISSIONER: Please go on Mr Granger.
MR GRANGER: Sorry, Mrs Sharpe, on the 22 April, did you speak with myself?
APPLICANT: Yes, I did.
MR GRANGER: Who else was present with you during that conversation?
APPLICANT: It was my husband, Gavin Sharpe.
MR GRANGER: And what was the nature of that conversation?
APPLICANT: You did ask me about why I got made redundant, who is in the position, and to lodge the application, and to go ahead with the matter.
MR GRANGER: Nothing further Commissioner.
[22] The application was lodged by email on 4 May 2021 by Mr Granger on behalf of the Applicant. Mr Granger used his work email address which evidently reveals he is an industrial officer of the Health Worker’s Union (HWU / the Union). However, on the F2 application Mr Granger is identified as the Applicant’s representative but not in the capacity of paid agent or lawyer.
[23] The general approach of the Commission where representative error is relied upon to explain the late lodgement of an application was set out by a Full Bench in Robinson v Interstate Transport Pty Ltd 10as follows:
“[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.
[25] The approach in Clark’s Case was summarised in Davidson’s Case as follows:
“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”
(references omitted)
[24] In dealing with an application for an extension of time based on a claim of representative error, Deputy President Asbury considered the nature of the obligation of the person considered to be a representative to the person raising the argument as a reasonable explanation for delay. I respectfully adopt her Honour’s reasoning in coming to my decision and note in particular her comments that:
“[15] Generally, representative error as an acceptable explanation for delay is founded upon an assumption that there is an obligation on the part of the person considered to be a representative which is more than voluntarism. A necessary pre-requisite for the Commission to accept representative error as a reasonable explanation for delay weighing in favour of a finding that there are exceptional circumstances, is that the person raising the argument has engaged (or engaged with) a representative in a sense that creates an obligation which gives rise to a legitimate and reasonable expectation that the representative will exercise appropriate care and diligence on behalf of that person. The negligence relied on must also be encompassed by the obligation.
[16] The provisions in s. 394(3) present a high bar for late applications. If error or oversight on the part of a representative was an automatic basis for a finding that there are exceptional circumstances justifying the grant of a further period, the purpose of s. 394(3) would be subverted. That purpose would be further subverted if error on the part of a person who was not a representative, but simply assisting a person to make an application for an unfair dismissal application, was given the same, or similar weight as representative error.
[17] The FW Act recognises various categories of representatives, including organisations, paid agents and lawyers. Section 596 provides that paid agents and lawyers may appear in matters before the Commission only with permission and prescribes the grounds upon which the Commission may decide to grant permission. It is common for persons to be assisted or supported by other persons – friends or family members with varying qualifications – in making or advancing applications to the Commission. However, such assistance or support will not necessarily, or of itself, result in the provider of assistance or support being considered a representative.” 11
Consideration
[25] As stated above, negligence sought to be relied on by the Applicant in support of her claim of representative error, must be founded on the existence of an obligation imposed upon Mr Granger, if any, to act on her behalf with ‘due diligence and care” and that the Applicant had a reasonable expectation that he would do so . Mr Granger gave evidence, consistent with the Form F2, that he was not representing the Applicant in the capacity as a lawyer or paid agent, nor was he engaged in his professional capacity as an industrial officer of the HWU. Mr Granger is a work colleague of Mr Sharpe, but his representation of the Applicant was on a voluntary basis.
[26] The Applicant gave evidence that she had no knowledge of Mr Granger’s qualifications, skills or experience – beyond stating that she knew he worked with her husband at the HWU. 12
[27] I now turn to the inconsistencies identified above in the evidence between the Applicant and Mr Granger as to when the instructions to lodge the application were given and by whom. Further, the inconsistencies between Mr Granger’s oral evidence and written submissions, and the inconsistencies in the Applicant's evidence. As stated above, I do not accept that the Applicant gave Mr Granger clear instructions to lodge her application on 18 April 2021 in an email from her husband to Mr Granger.
[28] As to the conversation on 22 April, I note first, that the significance of the conversation was raised for the first time during the hearing and that the written material submitted by the Applicant refers only to the email of 18 April, which I have referred to above and that “the Applicant’s husband contacted the Applicant’s representative on 22 April 2021 and again on 3 May 2021 following up on the application.” Further, I note that the applicant stated in oral evidence:
“Yeah, my husband did speak to Mr Granger on the phone”.
[29] Later, she stated that:
“I didn’t speak to him, but it was through my husband, so yes, we did approve that.”
[30] Following that evidence, the Applicant answered “yes” to a question from Mr Granger as to whether she gave him instructions to lodge her unfair dismissal application during the course of the telephone discussion between her, her husband and Mr Granger on 22 April 2021.
[31] I accept the Applicant’s evidence that she spoke with Mr Granger “through” her husband. Given the inconsistencies in the evidence, I am not satisfied that the evidence before me establishes that the Applicant gave Mr Granger clear instructions to lodge her application.
[32] As to any efforts made by the Applicant to follow up with Mr Granger on the progress of her application, I note Mr Granger’s evidence that “additionally, the Applicant’s husband contacted me on the 3rd of May to follow up where the application was, and I assured him that we’d have it lodged in the 21 days.” 13
[33] On the evidence before me, it is apparent that Mr Granger was acting as a well-intentioned work colleague of the Applicant’s husband, and that the Applicant was not paying for his services. In all the circumstances, I do not consider that Mr Granger was obligated to exercise due care and diligence on behalf of the Applicant such that his negligence in filing the application could be relied on as a credible reason for the delay.
[34] While I find that the Applicant did not directly play any role in lodging the application late, she is not blameless by virtue of her decision to eschew the responsibly for the timely lodgement of her application to her husband and Mr Granger – a volunteer, whose qualifications were unknown to her.
[35] There is no suggestion that the Applicant was incapable of actively prosecuting her application. Indeed, the Applicant’s evidence was that she was engaged by the Respondent from at least 14 September 2005 to 12 April 2021, and that she was most recently working as an Analytical Sciences, Laboratory Manager, managing 50 people in that capacity. 14
Conclusion on representative error
[36] I conclude that representative error is not made out as Mr Granger had no obligation to lodge the application on time and the Applicant could not rely on him to do so. I have also found that the evidence before me does not support a finding that the Applicant clearly instructed Mr Granger to file an application on her behalf. Regrettably, the Applicant made the decision to put the filing of her application in the hands of her husband, and Mr Granger, knowing little of the latter’s qualifications and skills. In the circumstances before me, the Applicant is not blameless. The Applicant did not advance any other grounds as being a reason for the delay, and as such, I conclude that there is no credible reason for the delay. This is a factor that weighs against granting an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
[37] 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 is a neutral consideration.
Action taken to dispute the dismissal
[38] The facts relevant to the Applicant’s efforts to dispute her dismissal have already been set out in my consideration of representative error.
[39] While I have not found that the Applicant gave clear instructions to Mr Granger to lodge her application, and I am not satisfied that she is blameless in relying on Mr Granger to lodge her application on time; I am satisfied that she took steps to dispute her dismissal by providing her letter of termination and redundancy documentation to Mr Granger via her husband and was present during telephone conversations between Mr Granger, herself, and her husband. I am satisfied that the Applicant made some effort to dispute her dismissal. In the circumstances this factor weighs slightly in favour of an extension.
Prejudice to the employer
[40] 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
[41] 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.
[42] Having examined these materials, the crux of the Applicant’s case is that her redundancy was not genuine as it appears her former role may be currently occupied, but under a new role description. The Applicant also calls into question the appropriateness of the new employee being put into the role rather than herself, and she makes criticisms of the consultation process, and the lack of genuine effort of the Respondent to try and redeploy her.
[43] It is not possible to make any firm or detailed assessment of the merits. The Respondent raises genuine redundancy as a further jurisdictional objection to the unfair dismissal application. To this, the Applicant may have an arguable case, to which the Respondent raises an apparent defence.
[44] 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
[45] The Applicant cites one other employee as being made redundant at the same time as her, but this is the employee the Applicant understands has been redeployed to perform ‘a majority of the Applicant’s previous duties.” 15 This employee was ultimately not terminated, and I am not aware of any other persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
[46] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.16
[47] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect, and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, which would warrant a consideration of the exercise of my discretion to allow a further period.
[48] There being no exceptional circumstances to enliven my discretion to grant an extension of time, the application was lodge beyond the 21-day time limit, meaning the Applicant has failed to validly lodge her application in accordance with the Act; the application is dismissed.
COMMISSIONER
Appearances:
Mr C Granger, for the Applicant
Ms N Reardon with Ms K Brosig, for the Respondent
Hearing details:
28 May 2021 (via video conference)
Printed by authority of the Commonwealth Government Printer
<PR730378>
1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].
2 Rodney Flagg v Solar Depot Pty Ltd,[2021] FWC 2723, [8].
3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
4 Applicant’s Outline of Submissions, 18 May 2021.
5 Ibid, 45. b.
6 Ibid 33:20.
7 Applicant’s Outline of Submissions, 18 May 2021, 45. b.
8 Audio recording of hearing, 27:15.
9 Ibid, 29:00.
10 (2011) 211 IR 347 at 351-352.
11 Juanita Ruta Chapman v Golding Contractors Pty Ltd T/A Golding Contractors,[2021] FWC 1092.
12 Audio recording of hearing, 31:30.
13 Ibid 33:20.
14 Ibid, 28:30.
15 Applicant’s Outline of Submissions, 18 May 2021, p.3, [24].
16 Lidia Li v Slim Form Australia Pty Ltd, [2021] FWC 619 (Gostencnik, DP), [20].
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