Andrew Jones v M.A. Services Group Pty Ltd T/A MA Security Group [2017] FWC 4122

1 Fair Work Act 2009 s.365—General protections Andrew Jones v M.A. Services Group Pty Ltd T/A MA Security Group (C2017/3256) DEPUTY PRESIDENT ASBURY BRISBANE, 9 AUGUST 2017 Application to deal with contraventions involving dismissal - Extension of time – Representative error constituting exceptional circumstances established – Extension granted. Introduction and factual background [1] This Decision concerns an application by Mr Andrew Jones (Applicant) under s. 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute in relation to his dismissal from employment with M.A. Services Pty Ltd T/A M.A. Security Guards (the Respondent). The Applicant states in his Form F8 General protections application involving dismissal, that he was dismissed on 24 May 2017. The application was made on 16 June 2017. [2] By virtue of s. 366(1) of the Act an application under s. 365 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 366(2). The application was made two days outside the time required in s. 366(1) of the Act. Correspondence was forwarded to the Applicant by the Commission advising that his application had been filed outside the required time and setting out the requirements in s. 366(2) which must be established for an extension of time to be granted. Correspondence was also forwarded by the Commission to the Respondent seeking its position in relation to participating in a conciliation conference before the matter of whether an extension of time should be granted was heard and determined. The Respondent did not consent to participating in a conciliation conference prior to the extension of time issue being determined. [3] It is therefore necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made. The matter was listed for Objections Conference/Hearing on 20 July 2017. Submissions were filed by the parties. Permission to be legally represented in relation to the extension of time application was sought by both the Applicant and the Respondent, and pursuant to s. 596 of the Act, I granted permission on the basis that both parties were represented; no issues of fairness arose; and it enabled the matter to be dealt with more efficiently. Essentially the Applicant’s submission that the time in which to make his application should be extended, is based on representative error. The Applicant gave evidence at the Objections Conference/Hearing. On the basis of the evidence [2017] FWC 4122 DECISION -- 1 of 7 -- [2017] FWC 4122 2 given by the Applicant it was necessary to issue Directions for the Applicant’s representative to file and serve on the Respondent, a statement and relevant documents, setting out the basis for the submission that there were exceptional circumstances justifying an extension of time on the basis of representative error. The statement and documents were required to be filed and served by close of business on 20 July 2017. The Respondent’s representative was required to advise the Commission by close of business on 21 July 2017 whether the Respondent sought to cross-examine the Applicant’s representative in relation to the statement. No advice to this effect was received and accordingly I have determined the matter on the basis of the material on the file, including the uncontested statement of the Respondent’s representative. Legislation [4] Section 366(2) of the Act provides as follows: (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 (c) prejudice to the employer (including prejudice caused by the delay); and (d) the merits of the application; and (e) fairness as between the person and other persons in a similar position [5] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:  out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or  involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional.1 [6] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable.2 Consideration [7] In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services3 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)4 as set out below: “[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief. -- 2 of 7 -- [2017] FWC 4122 3 [31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions: Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows: We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”5 [8] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as: “[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”6 [9] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account those matters in s.366(2) of the Act. I will consider each of those matters in turn. Reasons for the delay [10] The reason for delay advanced by the Applicant is representative error on the part of his legal representative. In Robinson v Interstate Transport Pty Ltd, 7 a Full Bench of the Commission held that depending on the particular circumstances of a case, representative error may constitute exceptional circumstances and be a sufficient reason to extend time. In that case the Full Bench held that the conduct of the Applicant is a central consideration to deciding whether representative error provides an acceptable explanation for delay. [11] In particular the Full Bench distinguished the case of an applicant who leaves the matter in the hands of a representative and takes no steps to inquire as to the status of their claim, from one where an applicant gives clear instructions to the representative to lodge a claim and the representative fails to carry out those instructions, through no fault of the applicant. In the latter case an applicant is blameless and it is more likely that a finding that there are exceptional circumstances will be made. 8 Representative error can include inactivity or carelessness of an applicant’s representative.9 [12] Generally parties who place matters in the hands of a legal representative, union representative or paid agent and take all reasonable steps to ensure that instructions are -- 3 of 7 -- [2017] FWC 4122 4 provided that are sufficient to enable steps to be undertaken as required by the Act, have a legitimate expectation that their instructions will be carried out, and a failure on the part of such a representative to do so is an exceptional circumstance. [13] In the present case, the Applicant’s evidence is that he was notified of his dismissal on 16 May 2017, and that his employment would end on 24 May 2017. The Applicant spoke to a number of people about options, made contact with NB Lawyers on 5 June and attended a meeting on 6 June for the purposes of seeking advice in relation to his dismissal. At that meeting the Applicant agreed to move forward with his application and gave instructions to NB lawyers to proceed. NB Lawyers prepared the application and forwarded it to the Applicant, advising him that it needed to be completed and sent back to NB Lawyers by 15 June so that it could be filed with the Commission. [14] Ms Chadburn, Associate with NB Lawyers, provided a sworn statement to the Commission appending various pieces of correspondence between the Firm and the Applicant. The correspondence was redacted with respect to privileged information not relevant to the issue of whether time for making the application should be extended. Ms Chadburn confirmed that on or around 5 June 2017, the Applicant attended the office of the firm for an initial consultation. Following the consultation, also on 5 June 2017, the Applicant sent email correspondence to NB Lawyers stating that he had spoken with his wife and would “settle up the monies owed to you to get you started”. [15] Ms Chadburn states that on or around 6 June 2017, she entered into a date calculator 21 days in order to determine when the application should be filed. For some reason which Ms Chadburn could not explain, there was a miscalculation whereby she believed that the application was required to be filed by 16 June 2017 and continued to hold that belief at all material times. An email was sent from the Firm to the Applicant at 12.15 pm on 6 June advising that a client agreement and a trust account receipt for his payment would be issued shortly and requesting him to provide additional information in relation to his application by 9.00 am on 7 June 2017. The Applicant responded to this email at 2.15 pm on 6 June 2017 and provided the requested information. [16] Ms Chadburn proceeded to draft the Application on the basis of her understanding that it was required to be filed by 16 June 2017 and forwarded the final draft to the Applicant on 14 June 2017. In a covering email the Applicant was requested read the draft to ensure its accuracy, make any amendments and return it to NB Lawyers by 2.00 pm on 15 June 2017. The Applicant complied with this request and sent an email at 6.43 pm on 14 June 2017 requesting that updates be made to the draft application. A final version was provided to the Applicant at 4.45 pm on 15 June with a covering email requesting that he provide final instructions by 11.00 am on 16 June 2017. The Applicant responded at 7.49 am on 16 June confirming instructions that NB Lawyers file the application. The Application was filed at 11.59 am on that date. [17] The Respondent’s representative did not seek to cross-examine the Applicant or Ms Chadburn in relation to the issue of representative error and I accept their evidence. Where there is a discrepancy in the dates given by the Applicant and Ms Chadburn, I prefer the evidence of Ms Chadburn on the basis that she had access to her file and relevant documentation. -- 4 of 7 -- [2017] FWC 4122 5 Any action taken by the person to dispute the dismissal [18] The Applicant did not take steps to dispute the dismissal directly with his former employer. However, this is not a case where the delay is extensive and in the context where the application was filed two days out of time this factor is not determinative. I accept that the Applicant took steps to seek advice within a reasonable period after his dismissal took effect. I also accept that the Applicant responded promptly to all requests from his legal representative to provide instructions. Prejudice to the employer (including prejudice caused by the delay) [19] The Respondent asserts that it has been prejudiced by increased administrative workload and fees charged by its representative to deal with the extension of time proceedings. I do not accept that these are matters that weigh against an extension being granted. The Commission is required to consider an extension of time regardless of the position taken by the Respondent. The Respondent has not responded to the extension of time matter in any way that is materially different from the Form F3 Response to the application and has used the Commission’s pro forma documentation for its outline of argument. The Respondent’s representative did not cross-examine the Applicant at the Conference/Hearing in relation to extension of time and did not seek to cross-examine Ms Chadburn in relation to her statement. [20] It is also the case that the Respondent refused to participate in conciliation until the extension of time issue was heard and determined. While the Respondent is entitled to take this position, the costs associated with the extension of time proceedings might have been avoided had the Respondent not taken this position. [21] The Respondent provides no other evidence of prejudice if an extension is granted other than the usual prejudice associated with being required to defend the application. Merits of the application [22] In the matter of Kornicki v Telstra-Network Technology Group10 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said: “If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”11 [23] After considering the material filed by the parties it is clear that there are factual disputes between the parties and it is not apparent that the application is without merit or that merit is anything other than a neutral consideration. -- 5 of 7 -- [2017] FWC 4122 6 Fairness as between the person and other persons in a similar position [24] It is well established that representative error is a factor which has been accepted as an exceptional circumstance triggering the discretion to extend time, in circumstances where an applicant is blameless in the delay and has not contributed to it. In such cases no issue arises with respect to fairness as between an applicant and other persons who have made applications outside of the required time for other reasons. [25] The facts in this case are consistent with other cases where an extension of time has been granted on the basis of representative error. The Applicant in this case sought advice soon after his dismissal took effect, responded promptly to requests made by his legal representative for him to take various steps or to provide information and did not contribute to the delay. His representative failed to properly document the time in which his application was required to be filed and provided an incorrect time frame for him to confirm the draft application, resulting in it being filed outside the required time. As such no issue of fairness arises. Conclusion [26] I am satisfied that there are exceptional circumstances sufficient for me to exercise my discretion to extend time and that it would be fair and equitable to do so. An extension of time to 16 June 2017 is granted. The file will be referred for conciliation. DEPUTY PRESIDENT Appearances: Ms M. Chadburn of NB Lawyers appearing for the Applicant. Ms J. Warn of HR Gurus appearing for the Respondent. Hearing details: Brisbane. 20 July. 2017. Printed by authority of the Commonwealth Government Printer <Price code C, PR595169> -- 6 of 7 -- [2017] FWC 4122 7 1 Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394 2 Ibid at [15]. 3Wheelan C, [2009] FWA 1638, [30] and [31]. 4 Lawler VP, [2010] FWA 1394. 5 In this regard Wheelan C referred to Maan v Minister for Immigration and Citizenship [2009] FCAFC 150. 6 Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5]. 7 [2011] FWAFB 2728. 8 Ibid at [25]. 9 Clark v Ringwood Private Hospital (1997) 74 IR 413. 10 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C. 11 Ibid. -- 7 of 7 --