[2020] FWCFB 5426
FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Jordan Donohoe
v
QuickComms Australia Pty Ltd
(C2020/6365)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT SAUNDERS
COMMISSIONER WILSON

MELBOURNE, 13 OCTOBER 2020

Appeal against decision [2020] FWC 3957 of Deputy President Millhouse at Melbourne on 28 July 2020 in matter number U2020/9178.

[1] The appellant, Ms Jordan Donohoe, was dismissed from her employment with the respondent, QuickComms Australia Pty Ltd, on 29 May 2020. She lodged an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (Cth) (Act) outside of the time prescribed. Deputy President Millhouse considered whether the appellant should be allowed a further period within which to lodge the application and on 28 July 2020, declined to allow a further period because the Deputy President was not satisfied that exceptional circumstances existed warranting the grant of an extension of time 1 (Decision).

[2] The appellant applies for permission to appeal and if granted, she appeals against the Decision. The application for permission to appeal and the merits of the appeal were heard concurrently.

Permission to appeal

[3] An appeal under s.604 of the Act is by way of rehearing, but the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision-maker. 2 An appeal may only be made with the permission of the Commission. This appeal is one to which s.400 of the Act applies and which provides:

“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”

[4] The test under s.400 is stringent. 3

[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 4 Granting permission to appeal may be in the public interest if the appeal raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate tribunal is required, or where the decision at first instance manifests an injustice, or the result is counter-intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.5

[6] For reasons which will shortly become apparent, we consider the Decision manifests an injustice and we consider it is in the public interest that permission to appeal be granted.

Appeal grounds and contentions

[7] Much like the way in which the matter was argued before the Deputy President, the appeal grounds set out in the notice of appeal lack structure, organisation and particulars. We need not set them out here. It is sufficient that we set out the substance of errors the appellant says were made by the Deputy President. The first is that the Deputy President erred in failing to find that the appellant’s solicitor failed to advise the appellant of the time limitation that applied under the Act to the making of an unfair dismissal remedy application.

[8] Secondly, the appellant contends the Deputy President erred in concluding that she did not give instructions to her solicitor to lodge the unfair dismissal remedy application until 29 June 2020 (10 days after the time for lodgement had passed), without considering or making a finding about the reason for that delay (during the period 20 to 29 June 2020), which the appellant contends is wholly attributable to her solicitor’s conduct of the matter.

[9] The third broad contention of the appellant seeks to engage with the second limb of House v The King 6, namely that upon the facts, the Decision is unreasonable or plainly unjust.7

Decision

[10] Before turning to the Decision, we set out briefly the matters that were in evidence before the Deputy President relevant to the appeal.
[11] The appellant was dismissed from her employment with effect on 29 May 2020 during a telephone discussion with her employer. 8 A letter of termination was sent to the appellant by email on the same day. Also on that day, the appellant sent an email to Mr Don Cameron, her solicitor, attaching the letter of termination and seeking to make an appointment to discuss it.9

Mr Cameron replied to the appellant’s email on 1 June 2020 and the substance of the advice given was to first obtain a copy of the report (if any) of the “independent investigation” to which reference is made in the letter of termination, and which appears to underpin the reason for the dismissal. 10 On the same day the appellant sent an email to the respondent stating that her solicitor had requested a copy of “evidence for the investigation” and could the respondent please forward a copy of this to her, or advise her of an avenue to retrieve the information she is requesting.11 Shortly thereafter the appellant received a reply email from the respondent advising that she should ask her solicitor to send an email to the respondent requesting the information.12 The appellant forwarded the email to her solicitor and was informed by return email that a letter to the respondent would be drafted and sent.13

[12] The letter was sent to the respondent on 3 June 2020. 14 On 5 June 2020 the appellant was speaking with her solicitor about another matter. During that conversation she asked whether there had been a response to the letter sent to the respondent requesting the investigation report and was told that no response had been received.15

[13] On 16 June 2020 the appellant sent an email to Mr Cameron seeking an update about any response from the respondent. 16 She was told by return email that the solicitor was yet to hear from the respondent but would continue to follow up.17

[14] The respondent, it appears through its solicitors Eden Lawyers, responded on 17 June 2020 to the letter Mr Cameron had sent on 3 June 2020 requesting a copy of the investigation report “basically saying they didn’t have a copy and it couldn’t be supplied in any event”. 18

[15] This correspondence was not sent to the appellant until 29 June 2020 (by email at 4:04 pm), and only after she had sent Mr Cameron another email on 25 June 2020 asking for an update. 19 In the same communication on 29 June 2020, Mr Cameron sought the appellant’s instructions to lodge an unfair dismissal remedy application.20 Later on 29 June 2020, at 4:30 pm, the appellant sent an email to Mr Cameron giving him the instructions sought.21

[16] On 30 June 2020 at 9:30 am, Mr Cameron sent an email to the appellant requesting copies of certain emails and the appellant duly complied on the same day. 22

[17] On 3 July 2020, Mr Cameron sent a completed unfair dismissal remedy application to the appellant which she reviewed, signed and dated. 23 The appellant first attempted to lodge the application electronically but encountered difficulty, so she lodged it by email on 3 July 2020.24 Subsequently but on the same day, the appellant advised Mr Cameron that she had lodged the application by email.25

[18] It is uncontroversial that the appellant’s unfair dismissal remedy application should have been lodged by 19 June 2020 but was lodged 14 days late.

[19] Paragraphs [1]-[17] of the Decision deal with background factual matters and extension of time principles. The Deputy President’s consideration begins at [18] of the Decision. The reason for the delay in lodging the unfair dismissal remedy application advanced by the appellant was “representative error”. The Deputy President was persuaded that the period of delay between 30 June 2020 and the date the application was lodged is satisfactorily explained by representative error because of the failure by Mr Cameron to expedite the lodgement of the application after receiving instructions to do so in circumstance where time for lodgement had already passed. 26

[20] The Deputy President was not persuaded that the appellant’s lack of knowledge of the timeframe 27 provided an acceptable reason for the delay.

[21] As to whether the period of delay between 20 and 29 June 2020 could be attributed to representative error, the Deputy President reasoned as follows:

“[22] It is not necessary for an applicant to demonstrate that they were “blameless” for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a representative in a timely fashion. 

[23] There is no evidence before the Commission that Ms Donohoe instructed Mr Cameron to lodge an unfair dismissal application on her behalf at any time prior to 29 June 2020, during the period of the delay.

[24] . . . Mr Cameron was instructed by Ms Donohoe to obtain a copy of the investigation report on 1 June 2020. Following provision of these instructions, Ms Donohoe said that she made enquiries with Mr Cameron’s office on 5, 16 and 25 June 2020 as to receipt of the report. Relevantly, Ms Donohoe had not instructed Mr Cameron to lodge an application for unfair dismissal remedy during this period.

[25] However, the respondent’s advice of 15 June 2020 that it did not have a copy of the investigation report from Telstra was not relayed to Ms Donohoe until 29 June 2020. Notwithstanding this, Ms Donohoe’s evidence in the proceeding was that “I didn’t want to push an unfair dismissal application without a report because we don’t know what’s on the report.” On this evidence, I am not persuaded that had Ms Donohoe received the respondent’s 15 June 2020 advice prior to 29 June 2020, that Ms Donohoe would have instructed Mr Cameron to institute an unfair dismissal application on her behalf at such time.

[26] Ms Donohoe provided Mr Cameron with instructions to lodge an unfair dismissal application on 29 June 2020. However, the statutory timeframe for lodgement of Ms Donohoe’s application lapsed at midnight on 19 June 2020. Accordingly, the period between 20 June 2020 (being the first day of the delay) and 29 June 2020 (being the date that Mr Cameron received instructions to institute an unfair dismissal application) cannot be attributed to representative error.” 28

[22] The reference in the above passages to “15 June 2020” is incorrect as on the evidence the respondent’s advice was received by Mr Cameron on 17 June 2020. 29

[23] The Deputy President concluded in considering the reasons for the delay as follows:

“[31] I do not find that Ms Donohoe has provided an acceptable explanation for the delay for the period 20 June 2020 (being the first day of the delay) and 29 June 2020 (being the date that Ms Donohoe instructed Mr Cameron to institute an unfair dismissal application). The absence of an acceptable reason for this part of the delay weighs against the grant of an extension.

[32] The finding of representative error for the period from 30 June 2020 does not bear upon the period 20 to 29 June 2020 and does not otherwise outweigh the conclusion reached.” 30

[24] The Deputy President considered at [33]-[34] of the Decision the fact the appellant became aware of the dismissal on the date it took effect was a matter weighing against the appellant because she had the full 21 day period within which to lodge the application. The Deputy President was not persuaded at [35]-[36] of the Decision that any of the steps the appellant took vis--vis Mr Cameron was action taken to dispute the dismissal and so also concluded the absence of any action weighed against the appellant.

[25] The Deputy President assessed the other matters pertaining to prejudice, merits and relative fairness, which she was required to take into account in assessing whether there were any exceptional circumstances, as weighing neutrally (at [38]-[45] of the Decision).

[26] The Deputy President was not satisfied there were any exceptional circumstances (at [46] of the Decision) and she dismissed the application (at [47] of the Decision).

Consideration

Whether advice about 21 day time limit given

[27] The appellant contends that the Deputy President erred in failing to take into account that the appellant’s solicitor failed to advise her of the 21 day statutory time limit within which an unfair dismissal remedy may be made and thus failed to take into account a material consideration in assessing the reason for the delay.

[28] Two difficulties arise from this contention. First, the contended failure on the part of the solicitor was not put as any part of the explanation for the delay during the hearing before the Deputy President. It is asserted for the first time on appeal. It is fundamental to the proper administration of justice that the substantial issues between the parties are ordinarily settled at the first instance proceeding. 31 Save in the most exceptional circumstances, a party on appeal will be held to its case at first instance.32 This is not a case where the exception might be engaged.

[29] Secondly, there is no evidence which would properly support such a conclusion in any event. The contention that Mr Cameron failed to provide the advice is at its core an allegation that he acted negligently in the discharge of his duties to his client. Mr Cameron gave evidence before the Deputy President, but he did not say that he failed or neglected to advise his client of the statutory time limit. He was not asked by the Deputy President nor by the respondent whether he advised his client about the statutory time limit. The appellant did not give evidence that such advice was not given. At its highest, the appellant said, in response to a question from the Deputy President, that she was not aware there was a statutory time limit for making an unfair dismissal remedy application. The Deputy President dealt with the import of that evidence, correctly in our view, at [30] of the Decision.

[30] We do not consider that it would be appropriate, notwithstanding whatever else might be said about Mr Cameron’s handling of the matter on his client’s behalf, to infer from this evidence alone that such advice was not given, particularly as the proposition was never put to Mr Cameron and as a matter of fairness, such an adverse finding should not be made in these circumstances. Moreover, on appeal though Mr Cameron remains instructing solicitor on the record, he has not sought to adduce or give supplementary evidence about whether or not he advised his client that she had 21 days after the date on which her dismissal took effect to lodge an unfair dismissal remedy application.

[31] It follows that such of the appeal grounds as engage with this contention must fail.

Reason for the delay (during the period 20 to 29 June 2020)

[32] The appellant contends the Deputy President erred in concluding that the appellant did not given instructions to her solicitor to lodge the unfair dismissal remedy application until 29 June 2020 without considering or making a finding about the reason for that delay (during the period 20 to 29 June 2020). The appellant contends that on the facts the delay during the period 20 to 29 June 2020 is wholly attributable to her solicitor’s conduct of the matter. This contention engages with grounds 6 and 7 of the notice of appeal.

[33] We agree that on the facts disclosing the solicitor’s conduct of the matter, particularly after 17 June 2020, the Deputy President did not take into account that conduct as explaining why it is that the appellant did not give instructions to her solicitor in relation to the unfair dismissal remedy application until 29 June 2020.

[34] The appellant contacted her solicitor on the day she was dismissed and sent him a copy of the termination letter she had received from the respondent. She was plainly seeking advice about the dismissal. She was advised that the report into the independent investigation should first be obtained in order that advice about the dismissal might be given. First the appellant, then her solicitor, sought to obtain the report from the respondent.

[35] On 17 June 2020, the appellant’s solicitor was advised in writing that no report would be furnished. For reasons not satisfactorily explained by Mr Cameron, he did not forward this important correspondence to the appellant until 29 June 2020. All the while, the appellant continued making inquiries of her solicitor about the production of the report. After the last occasion on which the appellant inquired (on 25 June 2020), the correspondence, along with a request for instructions to prepare and lodge an unfair dismissal remedy application, was sent to the appellant. She responded to the request for instructions, with her instructions to proceed, within 30 minutes of the request.

[36] As against these facts, the Deputy President’s observation that she was not persuaded that “had Ms Donohoe received the respondent’s 15 June 2020 (sic) advice prior to 29 June 2020, that Ms Donohoe would have instructed Mr Cameron to institute an unfair dismissal application on her behalf at such time”, is counterintuitive. There is no reason to suppose that had the appellant been given the correspondence on 17 or 18 June with the same request for instructions, that she would have been any less diligent in providing those instructions than she was on 29 June 2020. It is far more likely that she would have done so. Indeed, the diligence with which she responded to the 29 June 2020 request for instructions is consistent with her diligence in seeking advice after the dismissal, following her solicitor’s advice to contact her former employer about the report, forwarding the respondent’s response to her request to her solicitor, making inquiries of her solicitor about progress and in reviewing and lodging the unfair dismissal remedy application once she had received it from her solicitor.

[37] It seems clear enough that this period of delay, if not wholly then certainly substantially, is explained by the solicitor’s error in not promptly forwarding to the appellant the correspondence of 17 June 2020. Had he done so it is more likely than not that the appellant’s unfair dismissal remedy application would have been lodged within time.

[38] The Deputy President did not consider whether this period of delay was explained by the solicitor’s conduct of the matter and erred in not doing do. Consequently, as this matter is material in assessing the reason for the delay and whether there be exceptional circumstances, we consider the Deputy President’s discretion miscarried and we uphold this aspect of the appeal.

Unreasonable or plainly unjust

[39] Given our conclusion above it is unnecessary to consider this aspect of the appeal.

Rehearing

[40] For the reasons given we would uphold the appeal and quash the Decision. We consider the most appropriate course that we should adopt is to rehear and determine the matter for ourselves.

[41] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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 nor unprecedented, nor even very rare. 33 

[42] Exceptional circumstances may 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 can be considered exceptional. 34 

[43] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[44] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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.

[45] 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. We consider these matters in the context of the appellant’s application.

1. Reason for the delay

[46] We adopt the Deputy President’s analysis of the reason for the delay for the period following 29 June 2020.

[47] For the reasons earlier given we concluded that the delay in the period between 20 June 2020 and 29 June 2020 is satisfactorily explained by representative error. The delay was substantially the result of the inattention given to the conduct of the appellant’s file by the appellant’s solicitor.

[48] Thus, the whole of the period of the delay may be attributed to representative error, which in our view is of a kind for which she should be held blameless. She sought out legal advice about her dismissal and followed her solicitor’s advice. When asked by her solicitor to take steps in relation to the matter, she did so diligently. The appellant also made follow up inquiries about the progress of her matter with her solicitor on three occasions in the space of 20 calendar days. If only her solicitor had been as diligent.

[49] In the circumstances the reason for the delay weighs in favour of the appellant.

2. Whether the appellant first became aware of the dismissal after it had taken effect

[50] The appellant was notified of the dismissal on the same day that it took effect and therefore she had the full period of 21 days to lodge the unfair dismissal application. That this is so might normally weigh against the appellant because she had the benefit of the full 21-day period to lodge an application. However, given the circumstances described in our consideration of the reasons for the delay, the fact that she immediately sought advice and was poorly served by the manner of her representation, we do not consider this factor to weigh against the appellant in this case.

3. Action taken to dispute the dismissal

[51] We do not, as the Deputy President did, consider this matter weighs against the appellant. On the same day the appellant was notified of the dismissal she sought out advice from her solicitor. That she took a step to obtain advice about whether she could dispute the dismissal rather than actually disputing her dismissal by giving instructions to her solicitor to commence proceedings, is respectfully, in the context of assessing the steps taken, too fine a distinction. The fact she took the first rather than the second step is not a reason to attribute negative weight to this matter. We consider the matters highlighted in [35] of the Decision are all matters which show the appellant took steps to dispute her dismissal and that she did so weighs in her favour.

4. Prejudice to the employer

[52] We adopt the Deputy President’s analysis and conclusion as to prejudice, set out at [38]-[39] of the Decision.

5. Merits of the application

[53] We are required to take into account the merits of the application in considering whether there are exceptional circumstances. The competing contentions of the parties in relation to the merits of the application are set out in the forms F2 and F3 filed in the Commission. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s.396(a) makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that we make an assessment about the merits of the case based on the limited material that is available.

[54] Putting to one side the dispute about whether the appellant engaged in the conduct said to have be uncovered or disclosed by the investigation, it seems apparent on the material that the appellant was not provided any material particulars about the conduct alleged nor was she given an opportunity to respond to the allegations. At the very least this raises the case to a level that it has some real rather than remote prospect of success. That this is so weighs slightly in favour of the appellant.

6. Fairness as between the person and other persons in a similar position

[55] We adopt the Deputy President’s conclusion as to this consideration set out at [44]-[45] of the Decision.

[56] The delay has been satisfactorily explained. The other relevant matters either weigh in the appellant’s favour or are neutral. None of the considerations weigh against the appellant. When each of the matters set out in s.394(3), in the context of this case, are considered and weighed as well as examining those matters individually and collectively, we are comfortably satisfied that there are exceptional circumstances.

[57] Because we are satisfied that there are exceptional circumstances, we will exercise our discretion to allow an extension of time and allow a further period under s.394(3). There is no reason to not so do. In the circumstances of this case, an injustice would be visited on the appellant if an extension of time were refused.

[58] We extend the period within which the appellant’s unfair dismissal remedy may be lodged to 3 July 2020.

Orders

[59] We order as follows:

1. Permission to appeal is granted;

2. The appeal is upheld;

3. The decision [2020] FWC 3957 is quashed;

4. A further period within which the appellant may lodge an application under s.394(2) is allowed and is until 3 July 2020; and

5. The application is remitted to Deputy President Millhouse.

DEPUTY PRESIDENT

Appearances:

J Horowitz of counsel on behalf of the appellant
T Love-Linay and M Quick
on behalf of the respondent

Hearing details:

2020

Melbourne (via video)

8 October 2020

Final written submissions:

Appellant, 21 September 2020
Respondent
, 28 September 2020

Printed by authority of the Commonwealth Government Printer

<PR723476>

 1   [2020] FWC 3957

 2   Coal & Allied v AIRC (2000) 203 CLR 194 at [17]

 3   Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [43], per Buchanan J, Marshall and Cowdroy JJ concurring

 4   GlaxoSmithKline Australia Pty Ltd v Making [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.

 5   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, (2010) 197 IR 266 at [27]

 6   [1936] HCA 40; (1936) 55 CLR 499

 7   Ibid at p 505

 8   Appeal Book at p 16, PN58

 9   Appeal Book at pp 16-17, PN58, PN66-PN68

 10   Appeal Book at p 17, PN71

 11   Ibid, PN72

 12   Appeal Book at p 18, PN72

 13   Ibid, PN73

 14   Appeal Book at p 12, PN20

 15   Appeal Book at 18, PN74

 16   Ibid

 17   Ibid

 18   Appeal Book at p 12, PN20

 19   Appeal Book at p 14, p 18, PN45, PN74

 20   Appeal Book p 14, p 16, p 18, PN45, PN60, PN74

 21   Appeal Book p 14, p 16, p 18, PN47, PN62, PN74

 22   Appeal Book pp 16-17, PN62-PN63

 23   Appeal Book p 17, PN63

 24   Ibid

 25   Ibid

 26   [2020] FWC 3957 at [28]-[29]

 27   Ibid at [30]

 28   Ibid at [22]-[26]

 29   Appeal Book at p 12, p 13, PN20, PN28-PN29

 30   [2020] FWC 3957 at [32]-[32]

 31   Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7

 32   University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483

 33   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]

 34   Ibid