Doorley v State of Queensland (Department of Premier and Cabinet) [2019] QIRC 89

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Doorley v State of Queensland (Department of Premier and Cabinet) [2019] QIRC 089 PARTIES: Doorley, Neil Robert (Applicant) v State of Queensland (Department of Premier and Cabinet) (Respondent) CASE NO: GP/2018/33 PROCEEDING: General Protections DELIVERED ON: 11 June 2019 HEARING DATES: On the papers MEMBER: Black IC HEARD AT: Brisbane ORDER: 1. The application for extension of time is granted 2. The period for making the application in matter number GP/2018/33 is extended until 21 December 2018. CATCHWORDS: INDUSTRIAL RELATIONS ACT 2016 – GENERAL PROTECTIONS APPLICATION RELATING TO DISMISSAL – LATE FILING - EXTENSION OF TIME SOUGHT – REPRESENTATIVE ERROR LEGISLATION: Industrial Relations Act 2016 (Qld) s 284, s 285, s 289, s 310 Fair Work Act 2009 (Cth) s 366 CASES: Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 Robinson v Interstate Transport Pty Ltd [2011] -- 1 of 14 -- 1 FWAFB 2728 Long v Keolis Downer [2018] FWCFB 4109 Kyvelos v Champion Socks Pty Ltd, Print T2421 AIRC FB 10 July 2000 Kornicki v Telstra-Network Technology Group (1997) 140 IR 1 APPEARANCES: Susan Moriarty and Associates for the applicant Crown Law for the respondent Decision The Application [1] Neil Robert Doorley (the applicant) lodged an application on 21 December 2018 pursuant to the general protections provisions of the Industrial Relations Act 2016 (IR Act). The application relates to actions taken against the applicant by his employer, the Department of Premier and Cabinet (the Department). The applicant commenced work with the Department in September 2015. [2] Section 310(1)(a) of the IR Act prescribes that a general protections application relating to dismissal must be made within 21 days of the dismissal taking effect. The applicant's dismissal took effect on 27 November 2018 and the application was filed on 21 December 2018. The application was three days out of time. [3] On 29 March 2019, an application in existing proceedings was filed requesting an extension of time and leave to proceed with the application. The application is opposed by the respondent. Submissions [4] The parties exchanged written submissions in accordance with directions issued on 11 April 2019. No hearing was conducted. Legislation [5] Section 310 relevantly states: 310 Time for application (1) An application relating to dismissal must be made within – (a) 21 days after the dismissal took effect; or (b) if the commission allows a further period under subsection (2) – the further period. (2) The commission may allow a further period if the commission is satisfied 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 -- 2 of 14 -- 2 (e) fairness as between the person and other persons in a similar position. [6] I accept that in its approach to these proceedings, the Commission should be guided by the jurisprudence associated with s 366 of the Fair Work Act 2009 (Cth). Section 366 of the Fair Work Act 2009, which is expressed in similar terms to s 310 of the IR Act, is set out below: 366 Time for application (1) An application under section 365 must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (2). (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 like position. Expiry of time limit [7] The applicant submitted that the general protections application was made two days after the expiry of the statutory time limit. The respondent however maintained that the application was made three days after the expiry of the time limit. [8] Pursuant to s 310(1) of the IR Act, the application is to be made within 21 days after the dismissal took effect. The dismissal took effect on 27 November 2018. The effect of s 38 of the Acts Interpretation Act 1954 is that the time period is to be calculated by excluding the day of the dismissal. [9] Therefore, the first day to be counted is 28 November 2018 and the last day by which the application needs to be made is 18 December 2018. As the application was not filed until 21 December 2018, the application was filed three days out of time. Exceptional Circumstances [10] Pursuant to s 310 of the IR Act, the Commission may allow, after the expiry of the 21 day limit, a further period to make an application if it is satisfied that there are exceptional circumstances taking into account a number of factors which are set out below: (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. [11] Whether or not "exceptional circumstances" exist is a determination to be made by reference to a consideration of the factors specified. The discretion to extend time is -- 3 of 14 -- 3 only enlivened in exceptional circumstances. A finding that exceptional circumstances exist does not of itself mean that an application to extend time must succeed. [12] The meaning of the term "exceptional circumstances" was considered by a Full Bench of the Fair Work Commission in Nulty v Blue Star Group Pty Ltd:1 [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. Reason for delay [13] It is accepted that the delay to be considered is not measured by reference to the date of termination but is limited to the period that has elapsed between the expiry of the 21 day period and the date of filing. The Fair Work Commission decision in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters2 refers: [40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay. [14] In this matter therefore, the period under review extends from 4.00 pm on 18 December 2018 to 21 December 2018. The applicant attributes the delay in filing to two factors: (a) A failed attempt of electronic filing of the application; and (b) A change in the approved forms to be used in filing applications. [15] The applicant characterised the failed attempt at electronic filing as "representative error", while the misfortune arising from a change in approved forms was said to be an uncommon and usual event. [16] In an affidavit sworn on 27 March 2017, Mr Coyne, a solicitor for the applicant, said that he accessed the Commission's website on 13 December 2018 and downloaded the approved forms for use in commencing a general protections application. He said that both the application and the supporting affidavit were drafted over the next few days 1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 2 Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 -- 4 of 14 -- 4 and that he attended to the electronic filing of the documents at 12.11 pm on 18 December 2018. [17] When Mr Coyne did not receive confirmation of filing by 20 December 2018, he caused inquiries to be made of the Commission about the status of the application. When it became clear that the documents had not been received by the Commission, he asked his receptionist to attend at the Industrial Registry for the purpose of filing the documents. However, when the receptionist arrived at the Registry she was informed that the documents had not been prepared using the approved forms. [18] The requirement to urgently prepare the documents using the approved forms was complicated by the fact that, at the time, the applicant was holidaying in Coolum. In the end result the documents were forwarded to the Commission by express post late in the day on 20 December 2018. The Industrial Registry confirmed receipt of the documents in an email dated 21 December 2018. [19] While Mr Coyne said in his affidavit that the general protections application and the applicant's affidavit was served electronically on the Office of the Premier on 20 December 2018, the respondent disputed the proposition that it had been served on 20 December 2018. Notwithstanding this difference, it is not in dispute that a stamped copy of the documents was served on the respondent on 21 December 2018. [20] The respondent did not accept the applicant's explanations for the late filing of documents. It was the respondent's submission that the updated forms were included on the Commission's website on 28 September 2018 and that Mr Coyne could not have downloaded the old version of the forms on 13 December 2018. Given that the new forms were in place as at September 2018, it followed in the respondent's perspective, that Mr Coyne should have known well before 18 December 2018 that the forms had been updated. [21] It was in these circumstances that the respondent argued that Mr Coyne had made a number of wrong or inaccurate assertions in his affidavit, including the following propositions: (a) The Commission updated its approved forms at the close of business on 18 December 2018; (b) The sole indication of an update to the forms was a notification sent to the applicant's legal representatives on 18 December 2018; (c) The Commission did not give any notice of any forthcoming change to the approved forms; (d) There was no grace period, where superseded forms were still accepted by the Commission. [22] In advancing this submission, the respondent said that the approved form had been updated on 28 September 2018, and that a reminder about new forms and provision for a grace period had been given in an email footer used in Industrial Registry communications as early as 14 September 2018:3 3 Affidavit of Peta Tyquin (Attachment PT-02) -- 5 of 14 -- 5 IMPORTANT: From 28 September 2018 new forms will be made available to users of the Queensland Industrial Court, Queensland Industrial Relations Commission, Industrial Magistrates Court, and the Industrial Registry. The new forms will entirely replace the current forms. Old forms will still be accepted for filing until 5.00pm on 30 November 2018. After that time the old forms will no longer be accepted for filing. [23] In reply submissions the applicant suggested that notwithstanding the email footer reminders, Mr Coyne had not received any direct communication from the Registry about the change of forms and that Mr Coyne had a genuine explanation in that he did not become aware of the change to forms until after the filing of the application on 18 December 2018. [24] The effect of the applicant's submission was however that if the Commission did not accept Mr Coyne's explanations, representative error was sufficient ground to support a conclusion of exceptional circumstances. [25] Representative error was considered by a Fair Work Commission Full Bench in Robinson v Interstate Transport Pty Ltd4: [24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act. [25] The approach in Clark’s Case was summarised in Davidson’s Case as follows: 'In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay: (i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged. (ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant. (iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged. 4Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728 -- 6 of 14 -- 6 (iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.' [26] The submission was that in this matter the applicant had taken all necessary steps to enable his legal representatives to commence proceedings on his behalf and that the delay in filing could not be attributed to the applicant himself. It was submitted that the following steps demonstrated that applicant had taken all necessary steps to ensure that legal proceedings were commenced on or before 18 December 2018: (a) The applicant contacted his lawyers on the day of his dismissal; (b) The applicant attended on his lawyers on 6 December 2018; (c) The applicant instructed his lawyers to commence proceedings on 10 December 2018; (d) The applicant settled the application and executed his affidavit on 18 December 2018. [27] I am not persuaded that the two reasons for delay advanced by the applicant are meritorious. They are relevant however to a consideration of representative error. In this regard I accept that the delayed filing of the application was attributable to representative error and to an error that was in no way related to any failure or omission on the part of the applicant himself. This conclusion positively assists a finding that exceptional circumstances are present. Action taken to dispute dismissal [28] The effect of the respondent's submission was that the applicant had not taken any action to dispute his dismissal other than to engage solicitors to prepare a general protections application. It was submitted that there was no evidence that the applicant had taken action to put the respondent on notice that the applicant was disputing his dismissal. [29] While the applicant may not have put the respondent on notice of his intentions until the service of his application on 21 December 2018, it cannot be said that the applicant had not actively been considering his options and taking action to contest the lawfulness of his dismissal. The applicant had contacted lawyers on the day that his services were terminated, and he had subsequently worked with his lawyers to do what had to be done to commence general protections proceedings in the Commission. [30] In my view that there was not much more that the applicant could have done. In the time available between the date of termination and the date for filing, he had engaged lawyers, instructed the commencement of proceedings, and settled the terms of the application and prepared a supporting affidavit. The applicant was clearly motivated to dispute the lawfulness of the dismissal. This factor assists the applicant in the consideration of the question of whether exceptional circumstances exist. Prejudice to the employer [31] The respondent submitted that it was prejudiced in the following ways: -- 7 of 14 -- 7 (a) The bringing of a concurrent complaint before the Anti-Discrimination Commission Queensland (ADCQ) dealing with the same issues raised by the general protections application; (b) The respondent has already been put to cost in this application. As the application is difficult to understand and the issues are ill-defined, it is likely to prejudice or delay the hearing of the matter; (c) A prima facie prejudice will occur by allowing the application which the respondent would normally have the benefit of it being barred by limitation; (d) The respondent should not be lightly put to the cost and inconvenience of defending an application unless the interests of justice so dictate. This is particularly so in the absence of an application which properly pleads a case. [32] The respondent said that it would be unfair and prejudicial to allow the general protections application to continue while a concurrent proceeding in relation to the same subject matter is on foot before the ADCQ. It will cause the respondent to simultaneously defend two proceedings dealing with the same subject matter through two separate procedures, and subject it to the costs of both proceedings. [33] I am not persuaded by the arguments presented. The applicant's services were terminated on 27 November 2018 and the respondent was aware that he had filed a general protections application on 21 December 2018. Beyond having to deal with the application as it would have needed to if there were no delay, no prejudice to the respondent has been demonstrated. The late lodgement of an application by three days is hardly likely to significantly add to the inconvenience and cost incurred in defending an action brought against it. [34] I accept that the anti-discrimination complaint raises similar issues to those canvassed in the general protections application, however the complaint is brought in a different legislative context and there is no statutory bar to the applicant bringing concurrent proceedings in different jurisdictions. Further, I accept the submission of the applicant that any prejudice claimed to exist cannot be causally connected to the out-of-time application in circumstances where the applicant was at liberty to complain to the ADCQ at any time. [35] While the respondent may have reservations about the merits of the application as currently pleaded, this criticism has limited utility in circumstances where, at this stage of proceedings, a detailed consideration of the applicant's substantive case is not being undertaken. Fairness [36] This consideration invites a comparison between the applicant and another employee in the position of the applicant. The purpose of this consideration is to ensure that the applicant does not obtain any forensic advantage from the delay in commencement of the proceedings. In Ballarat Truck Centre v Kerr,5 the Fair Work Commission Full Bench stated: [26] It appears to be clear that s.366(2)(e) should be limited to a comparison of persons who have also had their employment terminated and are thus capable of lodging a s.365 5 Ballarat Truck Centre v Kerr [2011] FWAFB 5645 -- 8 of 14 -- 8 application. A time limit for the lodgement of an application under Part 3-1 of the Act is only provided for with respect to s.365 applications. The Act imposes no time constraints on other applications available under Part 3-1. It follows that the consideration stipulated in s.366(2)(e) of the Act requires a comparison between people who are capable of bringing a s.365 application. Further, as Mr Follett submitted, if s.366(2)(e) allowed for a comparison to a person who had not been dismissed, then, as the Act imposes no time constraints on other applications under Part 3-1, that comparison would always produce comparative unfairness and it could hardly be seen to be indicative of whether there are exceptional circumstances for which a further period of time could be granted. [37] In the circumstances of this case, no particular issues of fairness as between the applicant and others in a similar position arises. This factor does not contribute to the overall determination to be made and is appropriately regarded as neutral. Merit [38] The applicant submitted that the Commission need not consider the merits of the application in detail and that it was only necessary for the application to meet the standard of a prima facie case. The applicant relied on the test identified in Kornicki v Telstra-Network Technology Group6 in submitting that the Commission need only be satisfied that application was not without merit. The respondent however correctly noted that Kornicki was decided in a different legislative context and that the correct test was to be found in the later decision of Long v Keolis Downer7 where it was held that it must be shown that there is some merit in the substantive application: [71] The discretion to extend time in s.394(3) is not enlivened on the basis of a finding that it would be ‘unfair not to do so’; rather the Commission must be satisfied that ‘there are exceptional circumstances’. For the consideration in s.394(3)(e) to weigh in favour of such a finding it must be shown that there is some merit in the substantive application. The weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application. [39] Whatever the test, the respondent asserted that the application was devoid of merit and that this factor could not be relied on in the application to extend time. The respondent submitted that the facts alleged in the supporting affidavit were incapable of establishing the contraventions alleged. In these circumstances, the substantive application was doomed to fail and any consideration of the merits of the application should weigh heavily against a finding of exceptional circumstances. [40] The applicant alleged two contraventions against the respondent: (a) That the respondent has contravened s 285 of the Act as it took adverse action against the applicant because he exercised, or proposed to exercise, his workplace rights; (b) That the respondent has knowingly or recklessly made false or misleading representations about the workplace rights of the applicant. Section 285(1) contravention [41] Section 285 of the IR Act is reproduced below: 6 Kornicki v Telstra-Network Technology Group (1997) 140 IR 1 7 Long v Keolis Downer [2018] FWCFB 4109 -- 9 of 14 -- 9 285 Protection (1) A person must not take adverse action against another person— (a) because the other person— (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. [42] The respondent submitted, and I accept, that in order to establish a contravention of s 285(1), the applicant must satisfy the following three elements: (a) that the respondent took adverse action against the applicant; (b) the objective facts necessary to establish circumstances relied on as the prohibited reason - in this case, that the applicant had workplace rights within the meaning of s 284(l)(a) or s 284(l)(c)(ii) and exercised or proposed to exercise those rights; (c) that the respondent took the adverse action for the relevant prohibited reason - in this case, because of the exercise or proposed exercise of workplace rights under s 284(l)(a) or s 284(1)(c)(ii). [43] Section 284(1) of the IR Act provides: 284 Meaning of workplace right (1) A person has a workplace right if the person— (a) has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or (b) is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or (c) is able to make a complaint or inquiry— (i) to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or (ii) if the person is an employee—in relation to his or her employment. [44] At paragraph 51 of his affidavit the applicant said that the respondent contravened s 285 of the IR Act in that it took adverse action against the applicant for exercising workplace rights by making inquiries in relation to his employment; by making complaints in relation to his employment; and by taking personal leave for work related stress. The proposition is therefore that the applicant's employment was terminated because he made inquiries or complaints and because he took personal leave. [45] While it is difficult to form a view about causation at this stage of the proceedings, the following particulars which are included in the applicant's affidavit provide support for a view that the applicant was dissatisfied with aspects of his employment and had complained about various events in the workplace: • The applicant complained in August 2017 to Mr Anderson about being verbally abused by co-workers and being subject to professional sabotage (paragraph 20); • The applicant said in an email dated 28 November 2017 that he had previously raised "specific frustrations and concerns" about his role (paragraph 24); -- 10 of 14 -- 10 • After being informed on 10 January 2018 that a number of allegations and complaints had been made about him, the applicant in a meeting on 12 January 2018 requested a copy of any written allegations (paragraph 28); • The applicant sent an email on Friday 2 November 2018 to Ms Spencer in which he referred to a meeting in which he was told that several people had complained about his conduct or behaviour. The applicant requested that he be provided with copies of written complaints made against him by close of business on Monday 5 November 2018 (paragraph 40); • The applicant sent another email to Ms Spencer on 8 November 2018 in which he referred again to the complaints that had been made about him, insisted that he had been told that complaints had been reduced to writing, and expressed his disappointment that the names of complainants had not been passed on to him. The applicant also said that he wanted details of the complaints so that he could exercise his "basic right of actually being able to respond, and perhaps even seek counselling with the alleged complainants" (paragraphs 40-44); • In a substantive reply to the applicant's email, Ms Spencer told the applicant that she had not raised concerns or complaints about his conduct. She said that what she did say was that she had heard "both positive things about the contacts you have in the media but I have also been advised that aspects of your style and approach are challenging to some. Since you have joined our team, I have a greater appreciation of both of these" (paragraphs 40-44); • In an email in response dated 8 November 2018, the applicant continued to complain about not having received copies of written complaints and then said that he would be "happy to go back to my old portfolio and a more suitable senior media advisor can be found if that suits" (paragraphs 40-44); • On 22 November 2018, the applicant emailed his employer and said that after taking two weeks stress related leave, he would return to work on 26 November 2018. In the email he asked to be relocated because Ms Spencer had failed to provide him with copies of written complaints about him and because of what he described as other issues "regarding the office dynamic" (paragraph 48). [46] While it appears by reference to these parts of the affidavit that the applicant is raising concerns about various aspects of his employment, the respondent did not accept that the any such concerns were underpinned by a statutory or contractual entitlement or right which was considered necessary to establish the exercise or proposed exercise of a workplace right under s 284(1)(c)(ii). [47] Notwithstanding that the respondent's proposition is not without merit, I think it would be premature at this stage of the proceedings to conclude on the basis of the respondent's arguments that the applicant had no prospects of proving the alleged contravention in the substantive proceedings. Section 289(1) contravention [48] Section 289 of the IR Act is set out below: 289 Misrepresentations (1) A person must not knowingly or recklessly make a false or misleading representation to another person about— -- 11 of 14 -- 11 (a) the workplace rights of the other person or a third person; or (b) the exercise, or the effect of the exercise, of a workplace right by the other person or a third person. Note— This subsection is a civil penalty provision. (2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it. [49] The applicant stated that the respondent had knowingly or recklessly made false or misleading representations about his workplace rights or his proposed exercise, or exercise, of his workplace rights. The alleged false and misleading representation related to the withdrawal of the applicant's resignation and his subsequent decision to remain in the employ of the respondent on the basis of assurances made by Mr Anderson. [50] The only part of the affidavit relevant to this alleged contravention is that which appears at paragraph 20 (b) where it is asserted that Mr Anderson made a number of assurances to the applicant including a promise that things would get better and that the applicant would be looked after in the sense that his senior media advisor position would be made permanent. The applicant said that on the basis of promises made by Mr Anderson, he withdrew his resignation. [51] The question for determination in the substantive proceedings is whether the alleged misrepresentations were false or misleading, whether they were made knowingly and recklessly, and whether they were made about the applicant's workplace rights. [52] It is not immediately apparent to me how the assurances relied on were related to the applicant's workplace rights or the applicant's exercise of a workplace right. On the limited supporting material appearing in the applicant's affidavit, it is difficult to conclude that a prima facie case of a contravention of s 289 of the IR Act has been made out. [53] In a general observation on merit, while I think that the applicant's case is not well articulated in the supporting documents, and I understand the respondent's difficulty in discerning the case that has to be answered, I am not inclined to accept the respondent's characterisation of the application as one that is doomed to failure. I prefer a more measured outcome in which the applicant's case is not strong but that there is some merit in the substantive application. [54] A more cautious approach is favoured in circumstances where findings of facts on contested issues are to be avoided. In Kyvelos v Champion Socks Pty Ltd,8 the view was expressed that: It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). 8 Kyvelos v Champion Socks Pty Ltd, Print T2421 AIRC FB 10 July 2000 -- 12 of 14 -- 12 Conclusion [55] The approach to be adopted in arriving at a final decision was explained in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:9 [38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. [39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each. [56] The applicant submitted that the presence of "three compelling features" support a finding of exceptional circumstances: (i) The minimal period of delay; (ii) Representative error; and (iii) Changes to QIRC forms. [57] The respondent submitted that all but one of the five factors under review weighs against a finding of exceptional circumstances, while one factor should be rated neutral to any determination to be made. Additionally, in terms of the exercise of discretion, the respondent argued that three propositions weigh against the exercise of discretion in the applicant's favour: (i) The existence of concurrent proceedings filed within time in a different jurisdiction; (ii) The unmeritorious nature of the applicant's case; (iii) The prejudice caused to the respondent. [58] In my view the facts and circumstances associated with this matter support a conclusion that an extension of time should be allowed. In Long, it was said that the weight to be given to the merit factor was "dependent on the extent to which there is merit in the substantive application". In this matter, merit is not highly weighted because the applicant's affidavit, on its face, does not support a conclusion higher than that there is some merit in the substantive application. [59] An extension of time of three days will cause very limited prejudice to the respondent and I accept that the applicant could not have done much more in terms of disputing his 9 Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 -- 13 of 14 -- 13 dismissal. As was the case in Robinson, representative error is the key consideration in understanding the reason for the delay, and this factor provides substantial support for a finding of exceptional circumstances. [60] I am not persuaded by the respondent's submissions that I should exercise a discretion to reject the application for an extension of time. I do not accept the proposition that the filing of concurrent proceedings, the merit factor or the prejudice factor, either considered individually or collectively, support a conclusion that my discretion should be exercised in favour of the respondent. [61] The application is granted. The period for making an application in matter GP/2018/33 is extended until 21 December 2018. -- 14 of 14 --