[2017] FWC 4320
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Gavin Aunger
v
Vinpac International Pty Ltd
(U2017/7047)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 18 AUGUST 2017

Application for an unfair dismissal remedy – jurisdictional issue raised – application out of

time – exceptional circumstances - extension of time granted

[1] Gavin Aunger has lodged an application with the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Vinpac International Pty Ltd (Vinpac). Vinpac is a wine packaging and distribution business. It is a wholly owned company within the Woolworths Group. It employs approximately 260 persons.

[2] Mr Aunger was told he was dismissed on 8 June 2017 by Vinpac’s Maintenance Team Leader, Michael Timmis. He was told his dismissal was effective from that day. At that meeting he was accompanied by Stuart Gordon, an organiser with the Australian Manufacturing Workers Union (AMWU) South Australian Branch. He subsequently received a letter from Vinpac dated 9 June 2017 confirming his termination. The letter is relevant to matters I consider later in this decision.

[3] The application was referred to a Commission appointed conciliator who conducted a conference of the parties on 20 July. The matter was not resolved.

[4] Mr Aunger’s application was lodged on 30 June 2017. That is 22 days after his dismissal took effect. Applications under section 394 of the FW Act must be made within 21 days. The application is 1 day out of time. The merits of Mr Aunger’s application cannot be heard and determined unless the Commission grants an extension of time. Vinpac opposed an extension.

[5] On 24 July 2017 my Associate corresponded with both Mr Aunger and Vinpac advising that the extension of time issue would be considered in a telephone hearing on 17 August 2017. Information about an extension of time under the FW Act was provided to the parties. Mr Aunger was directed to provide a witness statement and a copy of any document relied upon relevant to the extension of time issue by 8 August. The employer was given an opportunity to file written material in response by 11 August. Materials were received from Mr Aunger on 8 August and from Vinpac on 10 August.

[6] Mr Aunger participated in the telephone hearing on 17 August with the assistance of the AMWU. He was represented by Mr Miller an Assistant Research Officer of the AMWU and supported by Mr Gordon and Mr Nguyen of the AMWU. Vinpac was represented by Mr David, a company Employee Relations Specialist SA/NT. A sound file recording of the telephone hearing was made by the Commission.

[7] Two witnesses gave evidence in support of Mr Aunger’s extension of time application, Mr Aunger himself and Mr Stuart Gordon. Vinpac did not call evidence. Written and oral submissions were made by both parties.

[8] I found all witnesses to be honest and reliable within the bounds of their recall. Mr Aunger has experienced personal difficulties in the lead up to his dismissal and since. These were acknowledged by Vinpac in the letter of termination. Although uncertain on some matters, his evidence was sufficiently clear to be reliable. Mr Gordon’s evidence was consistent with his witness statement.

[9] The evidence and submissions largely concern a single issue – representative error. This is the reason for delay advanced by Mr Aunger. The facts associated with the representative error are largely uncontested. I make the following findings:

[10] Vinpac opposed the extension of time on the following grounds:

[11] This decision about the extension of time is reached on the basis of all of the documentary material, submissions and oral evidence placed before me.

Consideration

[12] Section 394 of the FW Act relevantly states:

[13] Mr Aunger’s application can only proceed to a full hearing and determination if he can establish that “exceptional circumstances” exist within the meaning of section 394(3) so as to warrant an extension of time. I have considered the provisions of section 394(3) as they apply to this matter in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 2 which stated:

[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.”

[14] I now consider each of the factors set out in section 394(3) of the FW Act.

Reason for the delay (section 394(3)(a))

[15] The reason for delay is representative error. It arose from a miscalculation by Mr Gordon. Mr Gordon did not miscount the number of days but rather he calculated 21 days from 9 June rather than 8 June when the dismissal took effect.

[16] Given that Mr Gordon is an experienced union official, and given that he was in attendance at the dismissal meeting on 8 June, this is an error that should not have been made.

[17] However, Vinpac’s letter of 9 June, which Mr Gordon was relying on when making his (mis)calculation, has a contributory element. It commences by referring to the meeting of 8 June, discusses certain matters and then concludes “[A]ccordingly, this letter is to give you notice that your employment with Vinpac International is terminated with immediate effect as a result of serious misconduct”. The letter does not at any stage repeat the verbal advice of the previous day that the termination occurred on 8 June and took effect on that day.

[18] This omission, and the inference in its letter that the dismissal took effect on the date of the letter (9 June) which was a different date than the date it had in fact taken effect, leads me to conclude that Vinpac may have inadvertently contributed to the error.

[19] I do not find, however, that the error would not have been made by Mr Gordon if the letter had been accurately worded. If Mr Gordon was operating solely on the basis of reading the date of the letter and no more, he would have still made the miscalculation. However, if the letter had accurately stated what Mr Timmis had told Mr Aunger the previous day, Mr Gordon may have been alerted to the difference between the date of the letter and the date the dismissal took effect. The evidence and recall of Mr Gordon is not so specific as to enable me to make a finding either way on this point.

[20] Mr Gordon’s miscalculation was not the sole cause of the delay. He had full instructions to lodge a completed and signed application on 26 June. It is not unreasonable for a person to ask an administrative staff member to review an application that is within time and would remain within time, before lodgement. However, on learning that Ms Thomas was absent, Mr Gordon could have made other arrangements in the AMWU’s South Australian office for checking and lodgement in both his and her absence. While I agree with Vinpac’s submission that Mr Gordon had other options to delegate the task, his explanation for not doing so goes directly to his miscalculation of dates. He was never indifferent to the need to lodge on time. He simply believed, wrongly as it turned out, that he could do so himself on the day he returned from interstate.

[21] In the circumstances of this particular representative error, the reason for the delay is a factor that weighs in favour of the granting of an extension.

Awareness of the dismissal taking effect (section 394(3)(b))

[22] The dismissal took effect on 8 June and Mr Aunger and Mr Gordon were both present when Mr Timmis advised that fact. However, I have found that Mr Timmis letter of 9 June conveyed different advice and may have inadvertently contributed to the representative error.

[23] I also take into account the fact that the letter of termination dated 9 June was sent by post and not received by Mr Aunger until 15 June. This is a full week after dismissal, a period that encompasses one third of the 21 day period. Had the letter been sent electronically, it could have been received on 9 June, or the following day.

[24] On the facts in this case, I consider this to be a factor in favour of granting an extension.

Action taken to dispute dismissal (section 394(3)(c))

[25] I am satisfied that both Mr Aunger and Mr Gordon were informed of the reasons for dismissal at the meeting on 8 June. While it was reasonable for both to wait until Mr Aunger received the foreshadowed letter of termination before commencing proceedings, there is no evidence before me to suggest that either Mr Aunger or his representative informed or spoke to Vinpac disputing the reasons for dismissal.

[26] On the facts in this case, I consider this to be a factor that weighs against granting an extension.

Prejudice to the employer (section 394(3)(d))

[27] An employer is entitled to arrange its affairs and organise its resources on the basis that claims of this nature can no longer be made beyond the lodgement period, except in exceptional circumstances. However, there is no evidence that Vinpac’s operations are likely to be prejudiced on account of an application not having been made by the due date. Nor is there likely to be prejudice to witness evidence, including employer witnesses.

[28] That said, the absence of prejudice, of itself, does not provide a basis for an extension of time. On the facts in this case, I consider this to be a neutral factor.

Merits of the Application (section 394(3)(e))

[29] Mr Aunger’s application refers to personal issues affecting his health and well-being in the period before his dismissal, and claims these were known by the employer. Vinpac’s response asserts conduct and performance failures after counselling and warnings. The employer claims reasonable attempts were made to accommodate Mr Aunger’s personal circumstances.

[30] These contentions are likely to involve disputed facts or disputed inferences from agreed facts. They are also likely to require an objective assessment of the reasonableness of conduct by both Mr Aunger and Vinpac. In the absence of hearing evidence and submissions on these matters, I am unable to draw any conclusion about the merits of the application.

[31] On the facts in this case, I consider this to be a neutral factor.

Fairness between persons in similar position (section 394(f))

[32] No evidence or submissions from Mr Aunger or Vinpac raise issues of fairness with and between other persons.

[33] On the facts in this case, this is not a relevant factor.

Conclusion

[34] The delay in lodgement is short, being 1 day.

[35] However, an extension is not to be granted simply because the delay is short. In considering whether exceptional circumstances exist, the conduct of the applicant throughout the whole period after dismissal is relevant to whether an extension of time should be granted. 3

[36] The long standing approach adopted by the FWC and its predecessors establishes that representative error may be an acceptable reason for a delay insofar as it may not be fair to visit the error of a representative on the Applicant. 4 However, that approach requires that primary consideration must be given to the behaviour of the Applicant to establish that an Applicant took all appropriate steps to action the application and did not contribute to the delay.5

[37] I am satisfied that Mr Aunger took active steps over the 22 days between the dismissal and the lodgement on 30 June to ascertain his rights, take advice from his union on his rights, decide a course of action that involved having “a shot at unfair dismissal” 6, and instructing his union to make the application on his behalf. Relevantly, he provided these instructions on 26 June, 18 days after dismissal.

[38] Mr Aunger did not unreasonably delay making his decision. It was reasonable for him to wait until he read the termination letter which did not arrive until day 7. Between day 7 and day 18 he read the letter, he sent the letter to his union, spoke to his union, gathered supporting papers and then met with his union. He genuinely believed that his application had been lodged electronically at the end of the meeting on 26 June. He made no contribution to the events of days 19 to 22. He left the matter in the hands of an experienced union official.

[39] What he did not do, and the issue of conduct that weighs against him, is that neither he nor his representative disputed the dismissal with the employer at any time during this period.

[40] Mr Aunger did not, however, contribute by act or omission to the representative error by Mr Gordon. While the events of days 19, 20 and 21 in the AMWU office were unfortunate and unexpected, it is not wholly unusual that a staff member may be absent from work on account of illness. Systems should accommodate for that contingency. I accept the genuineness of Mr Gordon’s evidence that he did not believe he needed to put in place a contingency. Ultimately the events of days 19, 20 and 21 resulted in a late lodgement because of the miscalculation by Mr Gordon on about day 12.

[41] In all the circumstances, I am satisfied that exceptional circumstances exist so as to warrant an extension of time. The application will proceed to a hearing on the merits, unless otherwise resolved between the parties.

[42] Mr Aunger’s application for an extension of time is granted. An Order giving effect to this decision will be issued.

DEPUTY PRESIDENT

Appearances:

Mr G. Aunger, on his own behalf, and Mr G. Miller, Mr M. Nguyen and Mr S. Gordon , for the Applicant.

Mr. P. David, for the Respondent.

Hearing details:

2017.

Adelaide.

17 August.

1 Statement of Stuart Gordon Exhibit A1, paragraph 6

 2   [2011] FWAFB 7251. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251 at [5]

 3   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403 at 408-409

 4   Clark v Ringwood Private Hospital (1997) 74 IR 413

 5   Davidson v Aboriginal & Islander Child Care Agency Aboriginal Legal Service of Western Australia (Inc) (1998) 105 IR 1 at page 6

 6   Statement of Gavin Aunger, Exhibit A2, paragraph 5

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