DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Marquin Napier
v
Thomas Foods International (Murray Bridge Division)
(U2017/12108)

Application for an unfair dismissal remedy – jurisdictional issue raised – application out of time – applicant ascertained his rights - representative error – no exceptional circumstances – application dismissed

[1] Marquin Napier 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 Thomas Foods International Murray Bridge Pty Ltd (Thomas Foods). Thomas Foods operates a large meat processing abattoir at Murray Bridge in regional South Australia.

[2] Mr Napier was dismissed on 18 October 2017 with immediate effect. On 23 October 2017 he instructed, by phone and email, an ACT-based solicitor, Mr Peter Agoth, to act on his behalf. Mr Agoth agreed to act on a pro bono basis.

[3] Mr Napier’s application was lodged on-line by Mr Agoth on his behalf on 13 November 2017. That is 26 days after his dismissal took effect. Applications under section 394 of the FW Act must be made within 21 days. The application is five days out of time. The merits of Mr Napier’s application cannot be heard and determined unless the Commission grants an extension of time. Thomas Foods opposed an extension.

[4] Mr Napier’s application has not been the subject of conciliation as Thomas Foods advised the Commission on 20 November 2017 that it sought to first have the extension of time issue determined.

[5] On 23 November 2017 my Associate corresponded with both Mr Napier and Thomas Foods advising that the extension of time issue would be considered in a telephone hearing on 22 December 2017. Information about an extension of time under the FW Act was provided to the parties. Mr Napier was directed to provide a witness statement and a copy of any document relied upon relevant to the extension of time issue by 11 December. The employer was given an opportunity to file written material in response by 18 December.

[6] On 23 November 2017 a request was made by Mr Agoth to re-list the matter to a later date on account of his unavailability. I acceded to that request. The matter was relisted for 12 January 2018.

[7] A written submission in the form of an unsworn statement by Mr Agoth dated 12 December 2017 was lodged on behalf of Mr Napier. The employer elected not to lodge written materials.

[8] I conducted a hearing by telephone on 12 January 2018. A sound file recording of the telephone hearing was made by the Commission.

[9] Mr Agoth appeared with Mr Napier. By consent, I granted Mr Agoth permission under section 596 of the FW Act to represent Mr Napier on the ground that it would contribute to the efficient conduct of proceedings. Thomas Foods was represented by a company officer Mr Damian Kelly.

[10] After hearing an opening submission from Mr Agoth I suggested to both Mr Agoth and Mr Napier that it would be in the interests of their case if each were to give oral evidence on matters relevant to the extension of time. Each agreed to do so. I proceeded to take oral evidence from both Mr Agoth and Mr Napier. Thomas Foods made oral submissions but did not present witness or documentary evidence.

[11] Somewhat unusually, there were material differences between the oral evidence of Mr Napier and the written submission of his representative Mr Agoth. In light of Mr Napier’s evidence, Mr Agoth sought to amend aspects of his written submission and explain other differences. I do not need to make findings on how or why those differences of evidence emerged other than to note that both sought to honestly inform the Commission of the events to the best of their knowledge and belief. Mr Napier’s evidence was clear and direct. He was the person who was directly notified of his dismissal by the employer and who provided instructions to Mr Agoth. To the extent that I need to make findings on matters where the evidence differs, I accept the evidence of Mr Napier given the clarity with which it was given.

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

The Legal Principles

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

“394 Application for unfair dismissal remedy

…

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

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

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

[14] Mr Napier’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 1 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.”

[15] 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))

[16] Based on the submissions as amended after the oral evidence, the reason for delay is two-fold: a miscalculation by Mr Napier and representative error by Mr Agoth.

[17] The relevant facts, as I find them, are as follows:

1. Mr Napier was told by management of Thomas Foods on 18 October 2017 that he was dismissed for misconduct with immediate effect. He was handed a letter of termination. Mr Napier collected his belongings, returned company property and left the premises.

2. The letter of termination stated as follows: 2

“We regret to advise that your employment contract will be terminated immediately, effective on 18/10/2017. This action is due to failing to follow company policies and procedures and misconduct.

…...

“Details of your termination entitlements, including outstanding leave, will be processed and paid into the bank account provided.”

3. Mr Napier initially thought he would have to accept his dismissal but after speaking to friends in the days following he was told that he could claim unfair dismissal. His friends told him he had 21 days to do that.

4. On 20 October 2017 Mr Napier telephoned the Fair Work Commission information line to confirm the information he had been provided by friends. He was told that a dismissed employee could make an unfair dismissal claim. He was told that claims needed to be made within 21 days.

5. Mr Napier decided he needed legal assistance. On the advice of a friend, on 23 October 2017 Mr Napier made contact by telephone with an ACT-based solicitor, Mr Agoth. Mr Agoth agreed to act on a pro bono basis. Mr Agoth did not have specific background in workplace litigation but accepted the instructions. Mr Napier emailed Mr Agoth the termination letter he had received from Thomas Foods. Mr Agoth read the letter. Mr Agoth advised Mr Napier that he could make an application for unfair dismissal. Mr Agoth advised him that it would need to be made within 21 days. He did not specify a date by which it needed to be made. He did not specify what was meant by ‘days’. Mr Napier instructed Mr Agoth to lodge an application on his behalf.

6. After 23 October 2017 Mr Napier left the matter in the hands of Mr Agoth. Between 23 October and 13 November he did not have any further dealings with the matter, with Mr Agoth or the Commission. He was preoccupied looking for alternative work.

7. Mr Agoth lodged the unfair dismissal application on-line on 13 November 2017.

8. Mr Napier next became aware of the matter when he received a letter from the Commission dated 23 November 2017 which advised him that his application lodged on 13 November appeared to be lodged outside the 21 day time frame and that a hearing on an extension of time would be required.

[18] Mr Napier says that although he was aware within a couple of days of his dismissal that he needed to lodge an application within 21 days of the dismissal taking effect, he did not understand what was meant by ‘day’. He says that he thought it meant working day, excluding weekends. On that basis he believes his application is within time.

[19] I do not accept this as a reasonable explanation for the delay. There is no suggestion in Mr Napier’s evidence that he was informed by either friends, his solicitor or the Fair Work Commission information line that the 21 day period excluded weekends. Nor is there evidence that this was a misunderstanding he conveyed to his solicitor or was held by his solicitor. To the extent that Mr Napier held this misunderstanding it was a mere assumption on his part. He was not misled into that misunderstanding.

[20] The further reason for the delay advanced is that of representative error by Mr Agoth.

[21] Mr Agoth acknowledges that it was his responsibility to file the application having received instructions on 23 October to do so. He says that he was instructed at the time by Mr Napier that his dismissal was on notice. He (Mr Agoth) says he knew there was a 21 day limit for filing applications but that he believed he had until 18 November to do so, four weeks after the termination letter.

[22] I do not consider this a reasonable explanation for the delay. I do not find that Mr Napier believed he had been dismissed on notice and I do not find that Mr Napier told Mr Agoth that he had been. While Mr Napier may have been unsure about what his termination payments would include, and may have mentioned that to Mr Agoth on 23 October, he did not convey incorrect information to Mr Agoth about the date his dismissal took effect. Rather he provided Mr Agoth with the formal documentation – the letter of termination. Even taking into account Mr Agoth’s lack of familiarity with the workplace jurisdiction, the termination letter is sufficiently clear on this point that it ought to have clarified to Mr Agoth any misunderstanding or confusion he had from his discussion with his client about termination payments.

[23] I also reject the more specific submission by Mr Agoth, on Mr Napier’s behalf, that Mr Napier and Mr Agoth both believed that the dismissal was a dismissal on notice and that it would not take effect for four weeks from 18 October. I find that Mr Napier understood from 18 October, as a consequence of what he was told by Thomas Foods management as well as the contents of the termination letter, that he had been dismissed on that day and that his dismissal had taken immediate effect. I do not find (as Mr Agoth submitted) that Mr Napier expected to be paid wages in lieu or given four weeks’ notice in lieu. His evidence was that he expected his termination payments to include accrued entitlements and wages owed for work that had been performed up to 18 October only. To the extent that Mr Agoth believed this, it was not a reasonably held belief on his part. The terms of the letter of termination, which he had been provided on 23 October, made it clear that this was a case of instant dismissal with immediate effect.

[24] There is no further explanation advanced for why the application was not lodged within 21 days of 18 October.

[25] In these circumstances, the reasons for delay are factors that weigh against the granting of an extension.

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

[26] The dismissal took effect on 18 October 2017. I have found that Mr Napier was aware of that fact on that day. I have found that he produced a letter of termination which ought reasonably to have made his solicitor aware of that fact.

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

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

[28] Mr Napier took prompt action to ascertain his rights and within less than a week had taken advice and instructed a solicitor to file proceedings on his behalf. However neither he nor his solicitor drew the attention of the employer to the fact that Mr Napier was in dispute over the dismissal. Mr Napier’s evidence is that he did not advise his manager on 18 October that he disagreed with the dismissal as he was ‘in shock’ at being dismissed. Whilst this is so, he took no action directly or on his behalf to communicate with his former employer to put them on notice that the dismissal was disputed.

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

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

[30] As a general principle, 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 Thomas Foods operations are likely to be prejudiced on account of an application not having been made by the due date. Given the delay is of five days only there is unlikely to be prejudice to witness evidence, including employer witnesses.

[31] However, it is a principle well established by the Commission that the mere absence of prejudice is an insufficient basis to grant an extension. 3

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

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

[33] Mr Agoth asserted that Mr Napier’s application has a strong chance of success. Thomas Foods assert that the application is vexatious with little or no chance of success.

[34] In circumstances where a dismissal is for misconduct, 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 Napier and Thomas Foods. In the absence of hearing evidence and submissions on these matters, I am unable to draw any conclusion about the merits of the application.

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

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

[36] No evidence or submissions from Mr Napier or Thomas Foods raise issues of fairness with and between other persons. The alleged dismissal, on the information before me, concerns Mr Napier in his capacity as an individual employee.

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

Conclusion

[38] The delay in lodgement is not extreme, being five days. However, having regard to the 21 day statutory time limit, the delay in lodgement is significant. It is not so short to be inconsequential.

[39] In considering whether exceptional circumstances exist, the conduct of Mr Napier throughout the whole period after dismissal is relevant to whether an extension of time should be granted. 4

[40] I have found the reasons for delay advanced to be unconvincing.

[41] The long standing approach adopted by the Commission 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. 5 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.6

[42] I am satisfied that on 23 October 2017 Mr Napier instructed Mr Agoth to lodge an application on his behalf. However Mr Napier did not follow-up with Mr Agoth whether he had done so or not. This was despite Mr Napier knowing that there was a 21 day limit (of some description) on his application. He could have followed up with Mr Agoth at any time inside the 21 days. He did not do so. He simply left the matter with his pro bono solicitor and moved on to seeking new employment.

[43] Nor did Mr Napier (or Mr Agoth on his behalf) dispute the dismissal with the employer at any time during this period, or put the employer on notice that the matter was to be challenged.

[44] The reasons for delay are unconvincing and do not adequately explain inaction across the whole period of the delay. Whilst I readily find that Mr Napier moved quickly to provide instructions and that the delay was primarily caused by the failures of his solicitor Mr Agoth, he knew there was a 21 day time limit but remained inactive in following the matter up with his solicitor.

[45] Having regard to the length of the delay and the conclusions I have reached, I am not satisfied that exceptional circumstances exist so as to warrant an extension of time. The application will not proceed to a hearing on the merits.

[46] Mr Napier’s application is dismissed. An Order giving effect to this decision will be issued.

DEPUTY PRESIDENT

Appearances:

M. Napier, on his own behalf, and P. Agoth, with permission, for the Applicant.

D. Kelly, for the Respondent.

Hearing details:

2018.

Adelaide.

12 January.

 1   [2011] FWAFB 7251. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251 at [5]

 2   Exhibit A1

 3   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

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

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

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

Printed by authority of the Commonwealth Government Printer

<PR599516>