[2017] FWC 4021

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Michael Edwards
v
Tiger Airways Australia Pty Ltd T/A Tigerair
(C2017/3392)

COMMISSIONER BISSETT

MELBOURNE, 9 AUGUST 2017

Application to deal with contraventions involving dismissal- jurisdictional objection – extension of time – granted.

[1] Mr Michael Edwards was employed by Tiger Airways Australia Pty Ltd T/A Tigerair (Tigerair) until his employment was terminated arising from redundancy on 3 May 2017. Mr Edwards has made a claim pursuant to s.365 of the Fair Work Act 2009 (FW Act) (the s.365 application) alleging that he was dismissed in breach of the general protection provisions of the FW Act. He claims he was dismissed for exercising a workplace right to make a complaint (s.340) and/or for being temporarily absent from the workplace (s.352) and/or because of his age (s.351).

[2] Mr Edwards made his application on 22 June 2017.

[3] Section 366 of the FW Act states:

366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(b) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position.

[4] Mr Edwards made his application 50 days after the dismissal took effect. The FW Act requires that an application be made within 21 days after the date the dismissal took effect. Mr Edward’s application was therefore made 29 days late.

[5] Mr Edwards seeks an extension of time within which to make his application.

Evidence

[6] Mr Edwards gave evidence that he received notification of his dismissal on 3 May 2017. He was home on personal leave on that day.

[7] Early the following week Mr Edwards flew to New Zealand to be with his ailing father-in-law. Mr Edwards’ wife could not fly as she was in the advanced stages of pregnancy at the time so he was required to make the trip. He was in New Zealand for 10 days (until about 16 May 2017).

[8] On his return a friend asked Mr Edwards about the loss of his job. He indicated that he intended to dispute his dismissal and was told by the friend that he needed to see to it quickly as he only had 21 days within which to make an application.

[9] Mr Edwards said he rang McDonald Murholme, solicitors, on about 17 May 2017 to seek advice. He was advised he could not get an appointment for a week. Being aware that he needed to make an application quickly he then rang Just Relations, Consultants. He said he advised the person he spoke to from Just Relations what had occurred to him, his salary and what he had received in payments on his termination.

[10] Mr Edwards said that soon after Mr Garry Dircks of Just Relations rang him and he went through the details with Mr Dircks. He told Mr Dircks that he had been earning over $300,000 a year and had received $177,534 in payment when he was dismissed. Mr Edwards said he was advised that, while he earned over the high income threshold, he was most likely covered by an award so that would not be a problem.

[11] Mr Edwards said that at no time was he advised by Mr Dircks that there were two different types of claims he could make with respect to his dismissal (unfair dismissal or general protections involving dismissal), nor was he advised that any remedy for unfair dismissal included a maximum compensation of six months’ remuneration with a compensation cap at the time of $69,450.

[12] Just Relations made an application for unfair dismissal on behalf of Mr Edwards on 18 May 2017 1 (the s.394 application). That application was made within the statutory time period for making an application of 21 days.

[13] On 8 June 2017 Mr Edwards attended a conciliation conference by telephone with respect to his s.394 application with Mr Dircks from Just Relations. He said the telephone conference, whilst conducted appropriately, “felt wrong”, particularly in regards to discussion of the maximum remedy of six months’ pay. Mr Edwards said that what he was looking for from his s.394 application was some acknowledgement of the errors of Tigerair and a commitment from it to safety. He said that his s.394 application was never about money.

[14] Mr Edwards said he did not see a copy of the Form F3 - Employer Response Form to his s.394 application for unfair dismissal until the day of the conciliation.

[15] Mr Edwards said he thought about the conciliation conference for a day and still considered that something was just not right about it. He then rang McDonald Murholme and got an appointment to see Mr Andrew Jewell on 14 June 2017. He attended that meeting and was advised that, given his circumstances and concerns, he should have made an application alleging a breach of the general protections provisions of the FW Act involving dismissal and that his s.394 application should be discontinued. Mr Edwards said he was advised not to have further contact with Just Relations.

[16] Over the following week Mr Edwards said he worked with McDonald Murholme putting his application together. To do this he needed to find what paperwork he could to support the s.365 application.

[17] On 22 June 2016 McDonald Murholme lodged a s.365 application on behalf of Mr Edwards alleging a contravention of the general protections provisions involving dismissal and discontinued his s.394 application.

[18] Mr Edwards said he was not aware that there were two different types of applications that could be made with respect to his dismissal and these were never explained to him by Just Relations. He said that he relied on the advice of Just Relations as he considered them to have expertise in such matters. Mr Edwards said he did not undertake any research of his own as to what his options after dismissal might have been.

[19] Mr Edwards agreed that, during the period of consultation leading up to redundancy, he discussed with Mr Edward Nell from The Association for Virgin Australia Group Pilots (association representative) what he understood the real reason for his redundancy to be. His association representative suggested that he get independent advice on that question.

Extension of time

[20] The Fair Work Commission (Commission) has the power to grant an extension of time within which an application pursuant to s.365 of the FW Act is made if the Commission is satisfied that there are exceptional circumstances taking into account those matters set out in s.366 of the FW Act.

[21] I now turn to consider each of these.

Reason for the delay

[22] Mr Edwards says that the reason for the delay in making his s.365 application is representative error. He submits that it should have been obvious to his representative from Just Relations that he earned well in excess of the high income threshold and was not covered by an award or an agreement so would not have been eligible, for this reason, to make an application for unfair dismissal. Further, he says it should have been obvious to his representative at that stage that, by virtue of the payment he had received on being made redundant, it was unlikely he would achieve any compensation if found to have been unfairly dismissed.

[23] Mr Edwards submits that had his representative paid any attention to these matters, he could have advised Mr Edwards as to the correct application to make (s.365 application) and such an application would have been made within time.

[24] Mr Edwards submits that it was reasonable for him to rely on an experienced practitioner (which the website of Just Relations says Mr Dircks is) to provide him with the correct advice and to ensure the correct application was made. Mr Edwards argues that he gave competent instructions to his representative at that time. He relied on Just Relations to provide him with appropriate advice given those instructions but that, ultimately, the advice was wrong.

[25] Because of that error his application with respect to the general protections provisions of the FW Act was late.

[26] Mr Edwards further submits that he failed to take any action in relation to making an application to the Commission immediately after the time of his dismissal for a number of reasons including the necessity to travel overseas to visit his ailing father-in-law and the inability to get an early appointment with the legal advisor of his first choice (which he subsequently went to following the conciliation on the s.394 application) which took him to Just Relations who made an error in the application made.

[27] Mr Edwards referred me to a number of decisions of the Commission to support his claim.

[28] Mr Edwards says that any delay after he subsequently discontinued his s.394 application and the making of the s.365 application is due to McDonald Murholme lodging, on his behalf, a competent application detailing all of those matters necessary to have it properly considered by the Commission and the need for him to gather the information necessary for it to do so. In any event, he submits that the reason for the delay lays at the feet of his second choice representative and, had that representative given him the correct advice, there would be no delay in making his application.

[29] Tigerair submits that Mr Edwards has not established representational error and that even if he has, it does not constitute exceptional circumstances such that an extension of time should be granted. Further, it submits that if representational error is found it fails to explain the totality of the delay in making his application.

[30] Tigerair submits that Mr Edwards had the benefit of advice from his association representative during the consultation period leading up to his termination of employment and he did not seek any advice from him about any other reason for his redundancy.

[31] Tigerair also submits that Mr Edwards did nothing about his s.394 application until he contacted Just Relations towards the end of the time period allowed for making an application to the Commission. Further, it says that Mr Edwards has not provided adequate information to know if Mr Dircks provided incorrect advice and/or lodged the wrong application based on that information.

[32] Tigerair stated that the Commission is obliged to consider the conduct of Mr Edwards in making a decision as to representative error and if this provides a reason for the delay in making an application. There is a distinction to be made, it submits, where an applicant does nothing compared to where clear instructions are given and the representative fails to carry out those instructions. 2

[33] Tigerair says that Mr Edward’s professed ignorance of the law, in that he was unfamiliar with the unfair dismissal jurisdiction, is not an acceptable reason for a delay in making an application to the Commission within the appropriate time limit, nor is ignorance of the statutory time limit.

[34] Tigerair submits that Mr Edwards knew of his redundancy seven weeks prior to the termination of his employment. He had adequate opportunity to seek appropriate advice, including undertaking his own investigations, prior to the expiration of the 21 day time limit on the most appropriate application to make. Further, it submits that if Mr Edwards was not happy with the advice he could have sought alternative advice and still made his application within time.

[35] Tigerair submits that representative error cases tend to favour slips or simple errors by representatives including, for example:

● filing the application on the wrong form;
● technical issues prohibiting timely lodgement by a representative;
● representative overlooking filing date; or
● incorrectly but reasonably filing in the wrong jurisdiction.

[36] It submits that the error complained of in this case falls into none of these categories and there is no evidence from Mr Dircks of incorrectly filing an unfair dismissal on the basis of the instructions held by him. It says that if Mr Edwards did not explain to Mr Dircks that he had concerns that the real reason for the termination of his employment went to the exercise of a workplace right or other prohibited reason, it is inconceivable that an experienced practitioner such as Mr Dircks would file the wrong application.

[37] Tigerair submits that if Mr Edwards did not brief Mr Dircks on either his belief as to the real reason for the termination of his employment or the circumstances of his employment (his rate of pay and the payment made to him on termination) then the Commission cannot be satisfied that representation error is an acceptable reason for the delay.

Consideration

[38] The Full Bench of the Australian Industrial Relations Commission summarised the principles relevant to the consideration of representative error in Davidson v Aboriginal & Islander Child Care Agency 3 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. 4

[39] This is not a case of representative error most commonly seen by the Commission where a representative fails to act on instructions so that an application is filed outside the statutory time limit. Rather, it is put as an error in the jurisdiction sought to be invoked by Mr Edward’s representative. In this respect it is more akin to filing in the wrong jurisdiction (i.e. the State tribunal instead of the Commonwealth tribunal).

[40] Whether Mr Dircks made an error as to the type of application he made is dependent on the instructions given by Mr Edwards. Whilst I accept that Mr Edwards is a highly competent professional, his skills are not in the operation of the Commission or the intricacies of the FW Act. Because of this he sought advice from a professional, a person with expertise in the field. Mr Edwards freely admits that he did not know that there were two different types of applications potentially open to him.

[41] What Mr Edwards said to Mr Dircks by way of instructions can only be determined from the testimony of Mr Edwards. Mr Dircks was not called as a witness in the proceedings. I was not asked to draw any inference from that. Given the lack of contrary evidence I must accept the evidence of Mr Edwards.

[42] When asked in his evidence why he though his dismissal was “unfair”, Mr Edwards set out in some detail the relationship he saw between his dismissal, the complaints he made, the threats to him by the Chief Pilot of Tigerair regarding the Flight Data Analysis Procedures. He says that he explained this to Mr Dircks.

[43] On this basis I am satisfied that the information provided by Mr Edwards to Mr Dircks about why his dismissal was unfair and the information regarding salary and payout should have alerted Mr Dircks to the likelihood that Mr Edwards’ proper application would not be an unfair dismissal application but would be a general protections claim involving dismissal.

[44] In McIntryre v Special Broadcasting Services Corporation T/A SBS Corporation 5 lawyers for the applicant had filed an application for a general protections dispute involving dismissal. On receipt of the respondent’s material the lawyers realised that the application was doomed to failure and that the correct application to make was an unlawful termination application.

[45] In that matter Commissioner Cambridge observed:

[29] Unfortunately, but not unsurprisingly, those who advised the applicant were unaware that the anti-discrimination law in New South Wales does not make it unlawful to discriminate against a person on the basis of their political opinion. In passing, I note that discrimination on the basis of religion may also not be specifically established to be unlawful under the Anti-Discrimination Act 1977 (NSW) and apparently a similar position applies in South Australia.

[30] Consequently, the applicant, acting upon legal advice, sought to challenge his dismissal with an application that could not possibly succeed…

[46] In deciding that the jurisdictional objection of SBS Corporation should be dismissed and an extension of time granted, the Commissioner said:

[45] My conclusions have been broadly drawn from a purposive interpretation of the Act cognisant that it is beneficial legislation. In simple terms, I believe that the Act, and s. 723 in particular, should not be interpreted in a manner which would deprive an individual of access to a fair hearing or, as may be euphemistically described, a person’s “day in court”. In the circumstances of this case the applicant does not seek multiple proceedings or remedies but simply seeks to have his day in court.

[47] In Hooper v Mater Pathology Services T/A Matter Miscordiae Health Services Brisbane Limit 6 Commissioner Spencer considered an application for an extension of time in circumstances where the applicant had filed her application within time but in the Queensland Industrial Relations Commission on the basis of legal advice given to her. The Commissioner found:

[24] In this matter a period of the delay can be attributed to legal representative error, that is the advice received by the Applicant regarding filing the application in the QIRC, was received within the 21 day time frame, required in that jurisdiction. Whilst the legal representative states that they did not receive instructions to act on behalf of the Applicant, they confirm the advice provided regarding the filing in the incorrect jurisdiction. At the time of receiving the information from the solicitors (on 30 November and or 3 December) an application would have been able to have been made with the timeframe stipulated by the Act. The advice regarding the incorrect jurisdiction for filing impeded the Applicant from filing with the FWC within the 14 day timeframe.

[48] In Pitrau v Barrick Mining Services Pty Ltd 7 the Commission granted an extension of time to an applicant who had engaged a lawyer who agreed that there was representational error. Deputy President McCarthy said:

[20] I find that the reason for the delay was representational error; the error was both an error of type of application lodged and one of judgement in not taking appropriate steps to correct the error. It was also a representational error not to seek at least a stay of the Court proceedings.

[49] The Commissioner found that an extension of time should be granted taking into account the objects of Part 3-1 of the FW Act and where the matter was one “involving the protection of rights” which could be contrasted to the objects of Part 3-2 of the FW Act (where the unfair dismissal provisions can be found) which include balancing the needs of employers and employees.

[50] Tigerair seeks to distinguish each of these cases on the grounds that the factual matrix is substantially different. In particular it submits that there is no evidence Mr Edwards gave clear instructions or that he was blameless. Further, it says that on finding the wrong application had been made it took him a further two weeks to make the correct application.

[51] In this case I am satisfied that there is representational error. On the basis of the instructions given to Mr Dircks by Mr Edwards and given Mr Dircks’ extensive experience in the Commission generally and in the unfair dismissal jurisdiction particularly, he should have known that an unfair dismissal application had extremely limited chances of success (he would have to have proven award or agreement coverage of Mr Edwards) and that, in any event, there was little Mr Edwards could gain from such an application given the payment he had received on termination.

[52] I am also satisfied that Mr Edwards did appreciate the urgency of acting quickly on his return from New Zealand and, had the error not occurred, his application would have been made within time.

[53] On appreciating that all did not appear right at the conciliation of the s.394 application, I am satisfied that Mr Edwards took action to get further advice as to his options. In doing so he returned to his first representative of choice (McDonald Murholme) where he again found he would have to wait a week for an appointment. Whilst some criticism can be levelled at Mr Edwards for doing nothing else to ascertain the correct application, I accept that, having felt his fingers may have been burned in his second choice of representative at the first attempt to gain advice, he wanted to go back to where he believed he would get correct advice.

[54] There was a further delay of a week in McDonald Murholme filing Mr Edward’s s.365 application. This is not explained except that Mr Edwards was gathering “detailed” information to enable it to make a “proper” application. Whilst it is not clear why, knowing that Mr Edward’s s.365 application would be out of time, McDonald Murholme did not expedite the process of making the application. I am satisfied that, to the extent this is a further delay to be explained, Mr Edwards had given instructions to McDonald Murholme and was actively doing those things required of him to allow the s.365 application to be made. Mr Edwards is blameless in any delay once he had given instructions to McDonald Murholme for any delay in it making a s.365 application on his behalf.

[55] I am satisfied that Mr Edwards did not sit on his hands in the 21 day period within which his initial application was required to be filed (nor afterward). He had reason to be overseas that he could not control. On his return he moved quickly to have an application made.

[56] Much was made by Tigerair that Mr Edwards did nothing prior to his dismissal to raise a general protections dispute or raise with Tigerair his concerns about the real reason for the termination of his employment.

[57] I am not satisfied that this is relevant. The matters I am required to consider go to whether a “further period” beyond the 21 days allowed for an application should be granted. There is nothing in s.366 of the FW Act that requires me to have regard to actions an applicant may have, but did not take, prior to termination of employment. I do not consider that action Mr Edwards didn’t take prior to the termination of his employment is a relevant consideration in considering the reason for delay.

[58] For these reasons I am satisfied that there is an acceptable reason for the delay in Mr Edwards making his application with respect to a breach of the general protections provisions of the FW Act involving dismissal.

Action taken to dispute the dismissal

[59] Mr Edwards’ representative, Just Relations, made an application to the Commission (albeit an incorrect application) within 21 days of the date of dismissal. Tigerair has been aware that there was a dispute regarding the dismissal although I accept perhaps not the extent of the dispute not long after the termination of Mr Edwards’ employment.

[60] I am also satisfied that Mr Edwards did nothing to raise his concerns as to his perceptions of the real reason for his dismissal with Tigerair or elsewhere either before or after his dismissal.

Prejudice to the employer

[61] It is up to the Respondent in a matter to demonstrate that there is prejudice to it in granting an extension of time. In Brisbane South Regional Health Authority v Taylor 8 it was found that a long delay will give rise to a general presumption of prejudice.9 Once the Respondent provides evidence of the prejudice it would suffer it is up to the Applicant to show that the facts do not amount to prejudice.

[62] Tigerair says that it is prejudiced by the time that has now elapsed since Mr Edwards’ dismissal and the facts he now asserts as the reason for his dismissal.

[63] Mr Edwards says that there is no prejudice to Tigerair.

[64] Apart from the assertion of prejudice, Tigerair presents no evidence to which Mr Edwards could respond.

[65] I note that the delay in this matter is not overly extensive. No prejudice has been identified which would weigh against the grant of an extension of time.

Merits of the application

[66] It is not necessary for the Commission to determine the merits of an application in making a decision with respect to the grant of an extension of time. Rather:

…the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement…Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case…In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. 10

[67] Little evidence is before the Commission with respect to the merits of Mr Edwards’ application. What is clear however is that there is a dispute about the reasons for his dismissal.

[68] Mr Edwards says it is because he exercised a workplace right and for other protected reasons whilst Tigerair says it was a genuine redundancy.

[69] Given the contested nature of the asserted facts it is not possible for the Commission, on the material before me, to make any determination on the merits and I decline to do so.

[70] This factor weighs neither for or against the granting of an extension of time.

Fairness between the applicant and others in a like situation

[71] The determination of the question of fairness requires a consideration of the position of the applicant “in relation to other applicants employed by the same employer and affected by the same issue who filed applications in time.”¹¹

[72] There are other employees of Tigerair who were made redundant at around the same time as Mr Edwards. I do not however understand any of them to have an active application before the Commission. This is therefore not a relevant matter in determining this application.

Relevant law

[73] Section 366 of the FW Act does not allow the Commission to consider the exercise of its discretion to extend time within which an application pursuant to s.365 of the FW Act may be made unless exceptional circumstances are found to exist.

[74] The meaning of exceptional circumstances was considered in Nulty v Blue Star Group Pty Ltd 12 where the Full Bench of the Commission found:

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. 13

[75] In Brodie-Hanns v MTV Publishing Limited 14Marshall J of the Industrial Relations Court of Australia found that:

…The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

[76] An applicant for an extension of time must provide a credible reason for the total period of the delay. 15

Consideration

[77] Mr Edwards submits that the failure of his first representative to make the appropriate application is an exceptional matter. He submits that whilst other events that contributed to the delay may not be out of the ordinary they, in combination with this one exceptional matter, combine such that exceptional circumstances exist. Tigerair says that there are no exceptional circumstances and the s.365 application should be dismissed for having been made outside the 21 day time limit prescribed by the FW Act.

[78] The critical matter for consideration is whether the reason for the delay (all other matters bearing little if any weight in my consideration) amounts to exceptional circumstances such that an extension of time should be granted.

[79] I am satisfied that the reason for the delay in making the s.365 application is representational error on the part of Just Relations, in that it made an incorrect application when, on the basis of the instructions given it should have known that a s.394 application was not the correct application to make, and on the part of McDonald Murholme in that it did not further expedite Mr Edward’s s.365 application when it knew it was out of time and it should have known that Mr Edwards would have to explain the totality of the delay in making the s.365 application. I am further satisfied Mr Edwards did not contribute to these delays. To this extent it seems to me to be irrelevant that, had Just Relations made the correct application the matter would not be before the Commission for an extension of time. Regardless of how an extension of time comes to the Commission there is a requirement to explain the totality of the delay in making the application.

[80] I am satisfied that Mr Edwards had engaged representatives to provide him with the best advice available. He trusted them. Errors on their part should not be visited on Mr Edwards in circumstances where he took appropriate action within reasonable timeframes given his personal circumstances.

[81] I am satisfied that the reason for delay, that is representative error, is such that the circumstances are exceptional.

[82] Further, having found exceptional circumstances I have decided to exercise my discretion and grant Mr Edwards an extension of time until 22 June 2017 within which to make his s.365 application. No cogent reason was put forward by Tigerair as to why I should not exercise my discretion in such a way.

[83] An order 16 granting an extension of time will be issued with this decision.
Seal of the Fair Work Commission with member's signtaure.