[2011] FWA 2802

[2011] FWA 2802

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donald Ross Burgess
v
General and Window Cleaning Pty Ltd
(U2011/5319)

COMMISSIONER BISSETT

BRISBANE, 11 MAY 2011

Application for unfair dismissal - jurisdiction - extension of time - representative error.

[1] Mr Burgess (the Applicant) has made an application under s.394 of the Fair Work Act 2009 (the Act) for relief from unfair dismissal. The application was made some 11 weeks and 5 days beyond the statutory time limit of 14 days for the lodgment of such an application.

[2] Mr Burgess was dismissed from his employment on 18 November 2010. His application for unfair dismissal, in order to be lodged within time, should have been lodged by 2 December 2010. The application was made on 22 February 2011.

[3] General and Window Cleaning Pty Ltd (the Respondent) has objected to Fair Work Australia dealing with the application on the basis that it was not made within the time limit prescribed by the legislation.

[4] Mr Burgess was represented at the hearing for an extension of time by Mr Tullgren of United Voice. 1 The Respondent was represented by Mr Jones.

Applicant’s evidence and submissions

[5] Mr Tullgren made a witness statement that was admitted without objection. The Respondent did not seek to cross examine Mr Tullgren.

[6] Mr Tullgren stated that Mr Burgess had approached United Voice four days after he was dismissed (he was dismissed on Thursday 18 November 2010 2 and contacted the union on Monday 22 November). Some required internal forms were completed by the organiser and provided to Mr Tullgren, the relevant industrial officer. These forms were then returned to the organiser to enable further investigation into the matter.3 This form was not returned to Mr Tullgren.4 It became apparent in February 2011 that an unfair dismissal application had not been lodged. Mr Tullgren lodged the application on behalf of the Applicant the day after he became aware the application had not been made.5

[7] United Voice submits for Mr Burgess that the reason for the delay in lodging the application for relief from unfair dismissal is representative error on the part of United Voice.

[8] United Voice at all times took responsibility and advised the Applicant that it would lodge the unfair dismissal application. 6

[9] United Voice submits that the Applicant is blameless in the delay for filing the application, that the failure to file the application was a clerical error and that United Voice, who regularly files matters in Fair Work Australia, normally does so within the prescribed time limits - that is, that the failure in this instance is not normal for United Voice.

[10] United Voice further argues that, by approaching United Voice and requesting that it file an unfair dismissal application, the Applicant has sought to dispute the dismissal, that there is no prejudice to the employer in granting the extension of time and that there is merit in the application in that the Applicant says he was struck by his supervisor.

Affidavit and submission of the Respondent

[11] Mr Jones of the Respondent relied on an affidavit of Mr White, an employee of the Respondent, as to the events surrounding the termination. This affidavit was admitted although United Voice disputed the version of events surrounding the termination as outlined therein.

[12] Mr Jones submitted that it would not be fair to allow the Applicant to be granted an extension of time as he was not hospitalised such that he could not lodge the application. Further, he submitted, the Respondent should not be disadvantaged by having to deal with the application through an error of United Voice.

[13] Mr Jones further submitted that there was little merit in the application, that Mr White had worked for the Respondent for many years and was trustworthy and his affidavit should be preferred.

Legislation

[14] Section 394(2) of the Act requires that an application for unfair dismissal be made within 14 days after the dismissal took effect, or within such further period as Fair Work Australia allows under s.394(3) of the Act. That sub-section provides as follows:

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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

(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.

[15] In Parker v Department of Human Services, 7 Whelan C considered the meaning of the term ‘exceptional circumstances.’ She found that

[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression 'exceptional circumstances' as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. 8

[16] I adopt this approach to the meaning of exceptional circumstances.

Consideration

[17] The basis on which the Applicant sought that an extension of time be granted is error on the part of the Applicant’s representative - United Voice. United Voice does not dispute that it undertook to file the application and that it is responsible for the delay in that filing. The Applicant approached United Voice on this matter soon after his dismissal and well within the time limit for filing.

[18] In Clark v Ringwood Private Hospital, 9 a Full Bench of the AIRC set out those matters which should be taken into account when deciding whether or not representative error constitutes an acceptable explanation for the delay:

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;

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;

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;

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.

[19] In this matter the reason for the delay sits squarely with the Applicant’s representative.

[20] In Simpson v Patrick Stevedoring Pty Ltd T/A Patrick Auto Bulk and General 10 Asbury C stated:

In my view, a dismissed employee who entrusts an officer of a Union, of which he or she is a member, to lodge an unfair dismissal claim has a legitimate and reasonable expectation that the necessary steps will be taken in the time and the manner required under the Act. Regardless of whether the error in filing the application was a clerical error or an error of law, it is not a regular or routine circumstance or a circumstance that is routinely or normally encountered, that there is an error on the part of an officer of a Union in calculating the time in which an application for an unfair dismissal remedy should be filed. 11

Conclusion

[21] The reason for the delay is the failure of the Applicant’s representative (United Voice) to file the application in time. I accept the evidence of Mr Tullgren that the failure to file the application within time is highly unusual for United Voice and that the delay was caused by an error on the part of an employee of United Voice. The Applicant approached United Voice within 4 days of the dismissal to have action taken to dispute the dismissal. The applicant is not to blame for the delay and should not be disadvantaged by the conduct of his representative.

[22] I accept that there is some prejudice to the employer caused by the delay. Should this application be granted it will be required to defend itself against the application. Beyond this disadvantage of delay the Respondent put nothing else with respect to any prejudice it may suffer. I have however taken the views of the Respondent into account in coming to my decision.

[23] Whilst little was put to me on the merits of the application there are clearly competing factual issues that can only be determined with a proper consideration of the evidence. In such a circumstance the merits of the matter do not weigh against the exercise of discretion to allow the extension of time.

[24] A consideration of fairness as between this applicant and other persons in a similar position supports the exercise of my discretion to grant an extension of time.

[25] Having considered all of the material before me in this matter I am satisfied that exceptional circumstances exist such that I should exercise my discretion under s.394 of the Act and grant an extension of time for the filing of the application. An order that the time for filing be extended to 22 February 2011 will be issued.

COMMISSIONER

Appearances:

P Tullgren of United Voice for the Applicant.

C Jones for the Respondent.

Hearing details:

2011.

Melbourne.

May 6.

1 Endnotes

At the time this matter commenced United Voice was known as the LHMU. For ease of reading and comprehension the union is referred to as United Voice throughout this decision.

2 United Voice, in its material, erroneously states the dismissal was on Friday 18 November 2010. 18 November 2010 was a Thursday.

3 Exhibit A1 paragraph 11.

4 Exhibit A1 paragraph 13.

5 Exhibit A1 paragraphs 15-16.

6 Exhibit A2 paragraph 5.

7 [2009] FWA 1638 (15 December 2009).

8 Maan v Minister for Immigration and Citizenship (2009) FACFC 180.

9 Print P5279 (22 September 1997).

10 [2010] FWA 5056 (8 July 2010).

11 [2010] FWA 5056 (8 July 2010), at [12].

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