Adrian Biddle v Miele Australia Pty. Limited [2023] FWC 1972

1 Fair Work Act 2009 s.394—Unfair dismissal Adrian Biddle v Miele Australia Pty. Limited (U2023/6230) COMMISSIONER MIRABELLA MELBOURNE, 15 AUGUST 2023 Application for an unfair dismissal remedy – unfair dismissal application filed out of time – circumstances not exceptional – application dismissed. [1] This decision concerns an application made by Mr Adrian Biddle (the Applicant) for an extension of time to make a claim for unfair dismissal outside of the 21-day period required by s.394(2) of the Fair Work Act 2009 (the Act). [2] On 10 July 2023, the Applicant made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy. The Applicant alleges he was unfairly dismissed by Miele Australia Pty. Limited (the Respondent) on 24 April 2023. [3] This decision concerns whether I should exercise my discretion to allow the Applicant a further period of lodgement of his application. [4] After taking into account the views of the Applicant and the Respondent regarding whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter.1 [5] At the determinative conference on 14 August 2023, both the Applicant and Respondent were self-represented. [6] The Applicant gave evidence on his own behalf. When did the dismissal take effect? [7] It is not in dispute, and I so find, that the dismissal took effect on 24 April 2023. [8] On 10 July 2023, the Applicant applied for an unfair dismissal remedy. Applications of this kind must be made within 21 days after the dismissal took effect or if there are exceptional circumstances, such further period as the Commission allows.2 [2023] FWC 1972 [Note: An appeal pursuant to s.604 (C2023/5225) was lodged against this decision - refer to Full Bench decision dated 16 October 2023 [[2023] FWCFB 187] for result of appeal.] DECISION -- 1 of 7 -- [2023] FWC 1972 2 [9] To have filed his application within the 21-day period, the Applicant had to have done so before midnight on 16 May 2023. Extension of time [10] Additional time can be allowed under s.394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.3 [11] In deciding whether I am satisfied that there are exceptional circumstances, I must consider: • The reason for the delay, • Whether the person first became aware of the dismissal after it had taken effect, • Any action taken by the person to dispute the dismissal, • Prejudice to the employer (including prejudice caused by the delay), • The merits of the application, and • Fairness as between the person and other persons in a similar position. Relevant factors [12] Reason for the delay: The Act does not specify what reason for delay might tell in favour of granting an extension; however, decisions of the Commission have referred to an “acceptable” or “reasonable” explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour; however, all of the circumstances must be considered.4 [13] In his Form F2 application and outline of submissions, the Applicant says the reason for his delay in lodging the unfair dismissal application was that he had initially pursued a general protections application, which was lodged with the Commission on the Applicant’s behalf by his legal representatives, A Whole New Approach Pty Ltd (AWNA), on 9 May 2023. [14] The Applicant says that in his initial discussions with AWNA, he was presented with the choice between filing an unfair dismissal application or general protections application. He says he decided to proceed with a general protections application and said at the determinative conference words to the effect of he made this choice because he “felt that unfair dismissal was not going to be the best remedy for [him]”. [15] The Applicant says he ceased engaging AWNA’s services on 5 July 2023 because he believed AWNA did not adequately address his concerns regarding disability discrimination in the Form F8 application lodged with the Commission. He says these were “critical errors” -- 2 of 7 -- [2023] FWC 1972 3 which caused two barristers to evaluate his general protections claim as being without merit. He received this advice from counsel, firstly from Mr Conrad Banasik on 11 May 2023 and from Mr Kurt Esser on 4 July 2023. [16] The Applicant says he disagreed with Mr Banasik’s advice that he did not have an arguable case regarding the general protections application. The Applicant also disagreed with Mr Esser who concurred with Mr Banasik’s conclusions regarding the viability of the Applicant’s general protections application. [17] At the determinative conference, the Applicant gave evidence that he decided to submit his application for an unfair dismissal remedy on 9 July 2023 when he realised he was not able to explain to people the nature of a general protections application as it pertains to his circumstances. He said words to the effect of “the difficulty is I lack the ability right now in those complex matters to be able to articulate … the precise circumstances and how they relate to my situation, it’s something that is because of the impairments I have”. [18] The Applicant gave evidence that subsequent to being granted a s.368 certificate at the Commission, he wished to proceed to the Federal Circuit and Family Court of Australia (FCFCOA) and that there was delay in communication between him and AWNA. [19] The Applicant says that rather than lodging his general protections application in the FCFCOA, the deadline to do so being 10 July 2023, he lodged this application with the Commission. [20] In response, the Respondent submits that in cases involving late lodgement of unfair dismissal applications and alleged representative error, there is a distinction between delays caused by the representative where the employee is blameless and when the employee has contributed to the delay.5 [21] The Respondent submits that the Applicant has not offered any explanation as to the reason for the delay in relation to the period from 5 July 2023 to 10 July 2023. [22] The Respondent further submits that the Applicant has not demonstrated that AWNA made any “critical errors” as alleged, and that the Applicant was able to competently instruct AWNA who carried out his instructions without error. The Respondent submits that the delay in filing this application cannot be attributed to representative error by AWNA because the Applicant had not instructed AWNA to file an unfair dismissal claim. [23] The Respondent submits that AWNA’s advice to lodge the general protections application could not be characterised as a critical error because AWNA had not yet seen the Respondent’s response to the application. [24] The Respondent submits that even if AWNA’s advice were to be regarded as erroneous, the Applicant nonetheless still had the benefit of advice from counsel from 11 May 2023 and from 4 July 2023. [25] The Respondent asserts that the reason for the 56-day delay in filing the unfair dismissal application was, rather than poor legal advice, that the Applicant had instructed AWNA to lodge -- 3 of 7 -- [2023] FWC 1972 4 the general protections application under the belief it was a more suitable claim and had a subsequent change of heart. [26] The Respondent submits that the Applicant clearly contributed towards the delay in filing the unfair dismissal application when he disagreed with advice from counsel on both occasions. [27] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period.6 [28] The Applicant says that the reasons for the delay were that: • He had initially pursued a general protections application to dispute his dismissal, and • Because of an illness from which he was suffering, he did not believe he would be able to explain to his representatives the nature of the Respondent’s alleged discriminatory conduct towards him so as to allow those representatives to properly advocate for him in the general protections application. [29] The test for representative error is not whether the Applicant received good or bad advice, it is whether his representative’s action or inaction caused the delay.7 [30] The general protections application was lodged on 9 May 2023 and at least from 11 May 2023 when the Applicant says he received counsel’s advice that his general protections application was without merit, he had an additional 4 days within which to lodge an unfair dismissal application so that it could be lodged within time. The Applicant did not do so. [31] In this matter, the Applicant did not instruct his representative to file an unfair dismissal application. The Applicant gave evidence that he was of the initial view that a s.394 application would not provide the best remedy for him. The Applicant contends that representative incompetence and poor legal advice caused a substandard general protections application to be lodged on his behalf, therefore delaying the lodgement of an unfair dismissal application. [32] I find that the Applicant did not agree with legal advice he received regarding his general protections application, decided that he could not explain to his legal representatives how such an application could succeed and accordingly changed his mind and decided to file an unfair dismissal application. [33] I find that the Applicant was not blameless and contributed to the delay in lodging the unfair dismissal application. [34] For the reasons above, I am not satisfied that the Applicant provided an acceptable or reasonable explanation for the delay. -- 4 of 7 -- [2023] FWC 1972 5 [35] The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances. [36] Whether the person first became aware of the dismissal after it had taken effect: The Applicant was notified of the dismissal on the same day that it took effect and, therefore, had the full period of 21 days to lodge the unfair dismissal application. This factor does not weigh in favour of a grant of additional time to make the application. [37] Any action taken by the person to dispute the dismissal: At the determinative conference, the Applicant gave uncontested evidence that from the date his employment was terminated, he made it clear that he disagreed with the termination. [38] In particular, he submits that he took action to dispute the dismissal by retaining the services of AWNA on 24 April 2023 and instructing them to lodge a general protections application on his behalf. [39] The Respondent submits that although the Applicant took steps to dispute his dismissal by lodging the general protections application, he took no steps between 5 July 2023 and 10 July 2023 to contest the dismissal which they say should weigh against the Applicant. [40] I consider that the action taken in lodging a general protections application constitutes action taken by the Applicant to dispute the dismissal. [41] This weighs in favour of granting an extension of time. [42] Prejudice to the employer: The Applicant submits that the Respondent would not suffer prejudice if an extension of time were granted because they would have been aware due to his general protections claim and resulting negotiations that the matter of his dismissal was not resolved. [43] The Applicant does concede that the Respondent may be prejudiced if the Commission were to order reinstatement in the substantive matter due to the time which has elapsed, but that any unfairness to the Respondent would be mitigated by their alleged conduct. [44] The Respondent makes no submissions as to prejudice. [45] In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted. I consider this to be a neutral consideration. [46] Merits of the application: The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed and I do not repeat them here. [47] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed -- 5 of 7 -- [2023] FWC 1972 6 assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration. [48] Fairness as between the person and other persons in a similar position: The Applicant in making submissions on this factor stated he took the necessary steps to provide instructions to AWNA to lodge a general protections application, but that AWNA made several errors in drafting the application, leading to two barristers advising the Applicant he did not have an arguable case. [49] The Respondent submitted that it is not aware of decisions made by the Commission which contain factual resemblance to this case and that, therefore, this factor should be weighed neutrally. [50] The matters raised by the Applicant are not relevant matters in considering fairness as between him and other persons in a similar position. [51] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. In the present case, neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I, therefore, consider this to be a neutral consideration. Conclusion and disposition [52] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I find that there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed. [53] An order to this effect will be issued with this decision. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR765005> -- 6 of 7 -- [2023] FWC 1972 7 1 Fair Work Act 2009 (Cth), s.399. 2 Fair Work Act 2009 (Cth), s.394(2). 3 Nulty v Blue Star Group (2011) 203 IR 1 at [13]. 4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 5 Clark v Ringwood Private Hospital Print P5279 (AIRCFB, Ross VP, Drake DP, Deegan C, 22 September 1997), [(1997) 74 IR 413, at pp. 418‒420]; Davidson v Aboriginal & Islander Child Care Agency Print Q0784 (AIRCFB, Ross VP, Watson SDP, Eames C, 12 May 1998), [(1998) 105 IR 1]; cited in McConnell v A & PM Fornataro T/A Tony’s Plumbing Service [2011] FWAFB 466 (Lawler VP, O’Callaghan SDP, Bissett C, 31 January 2011) at para. 35, [(2011) 202 IR 59]. 6 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287, [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349, [29]-[31]. 7 McConnell v A & PM Fornataro T/A Tony's Plumbing Service (2011) 202 IR 59. -- 7 of 7 --