[2014] FWC 930
The attached document has been amended to correct a typographical error at paragraph [7],
“20 January 2013” has been amended to “20 January 2014”.
Katrine Huynh
Associate to Vice President Hatcher
12 February 2014
1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Trung Hoang
v
WMS Gaming Australia Pty Ltd
(U2013/13342)
VICE PRESIDENT HATCHER SYDNEY, 10 FEBRUARY 2014
Application for relief from unfair dismissal - jurisdictional objection - extension of time
Introduction
[1] Mr Trung Hoang (the applicant) filed an application for an unfair dismissal remedy
pursuant to s.394 of the Fair Work Act 2009 (the Act) on 6 September 2013. There is no issue
that he was dismissed by WMS Gaming Pty Ltd (the respondent) effective from 9 August
2013. The application was therefore filed 28 days after the dismissal, and seven days after the
21-day period prescribed in s.394(2) for the filing of an application. The application is
therefore incompetent unless an extension of time is granted by the Commission.
[2] Section 394(3) prescribes the circumstances in which an extension of time can be
granted as follows:
“394 Application for unfair dismissal remedy
....
(3) The FWC may allow a further period for the application to be made by a person
under subsection (1) if the FWC is satisfied that there are exceptional circumstances,
taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken
effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Issues arising in the application
[3] The issues that will arise if this matter goes to hearing may be identified in the
application itself, the employer’s response, and the documents attached to the application and
response.
[2014] FWC 930
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 930
2
[4] The applicant was employed by the respondent in 2004 as a Senior Artist. The
applicant was first subject to performance management in 2012 over concerns of the quality
of work he produced, his ability to meet deadlines and issues with communication. It appears,
from the respondent’s perspective, that the applicant’s performance improved only marginally
in the short term.
[5] Throughout 2013 the applicant continued in the opinion of the respondent to display
unsatisfactory performance, and was subsequently issued a first warning letter on 3 June 2013
and a final warning letter on 25 June 2013. On 7 August 2013 the applicant was issued with a
written notification warning him that there were sufficient grounds for the respondent to
terminate his employment and advising that a meeting was scheduled for 9 August 2013 to
give him an opportunity for him to provide further information before a final decision was to
be reached. Following the meeting on 9 August 2013, the applicant was issued with a letter
terminating his employment with the respondent.
[6] The applicant contends that his dismissal was unfair because he completed all tasks
allocated to him, he followed and complied with all instructions given to him by his leader,
his knowledge and skills were up-to-date, his performance was good and satisfactory, and that
his termination was therefore harsh, unjust and unreasonable.
The extension of time hearing
[7] The applicant’s application for an extension of time was originally listed for hearing
on 20 January 2014. That hearing was adjourned in accordance with a request from the
applicant’s solicitors, Peaceful Lawyers. The reason for the requested adjournment was that
the applicant’s counsel was on leave and not available to give advice. The matter was then
listed for 10.00 am on 31 January 2014. When the matter was called on that morning, the
applicant was represented by counsel, but neither the applicant himself nor any person from
Peaceful Lawyers was present. Counsel informed me that he was appearing on a pro bono
basis, that due to a misunderstanding the applicant was not present, and that he had not had an
opportunity to take any instructions from the applicant. After a short adjournment, counsel
advised that he had spoken to the applicant by telephone, that the applicant would be able to
attend the Commission later that day, and that the basis for the extension of time application
would be that the applicant was mentally distressed as a result of his dismissal and
consequently unable to file his application within the prescribed time. On that basis, the
matter was stood over until 2.00 pm that day.
[8] The applicant was present in court with his counsel when the matter resumed at 2.00
pm. The applicant gave viva voce evidence, and was cross-examined on his evidence by the
respondent’s solicitor. In addition, the applicant tendered some documents. It emerged during
the applicant’s evidence that representative error was likely to be an issue, and when the
applicant’s counsel gave his closing submissions, he confirmed that representative error was
relied upon as an additional ground for the grant of the extension of time.
[9] The respondent had not been put on notice prior to the applicant giving evidence that
representative error was a basis for the application for an extension of time. I do not criticise
the applicant’s counsel for this. He was clearly appearing in the matter at short notice, had no
solicitor present to instruct him, and was taking instructions from the applicant “on the run”. I
would also infer that the applicant’s solicitors had not provided counsel with any proper brief
[2014] FWC 930
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in the matter. However, in order that the respondent was not prejudiced by this, I gave the
respondent an opportunity to file further written submissions on the issue of representative
error. The respondent’s solicitor filed such submissions in accordance with the Commission’s
directions on 5 February 2014.
The evidence
[10] In respect of the reason for the delay in the filing of his application, the applicant’s
evidence was that in the days following his dismissal he was in a mental state of shock and
confusion as he was unable to understand the true reasons for his dismissal. The applicant said
that this mental state continued for about a week until he was able to calm down and seek
assistance from his friends. Acting upon the advice of his friends to seek legal assistance and
to act as quickly as he could, the applicant began to contact lawyers listed in the newspaper.
The applicant said that of the ten lawyers he contacted over a period of some days, the
majority advised that they did not undertake unfair dismissal matters, with the exception of
Peaceful Lawyers.
[11] The applicant’s initial contact with Peaceful Lawyers was by way of telephone and
occurred “in week two after the dismissal”. He explained his case to Mr Thai Nguyen, a
solicitor at the firm. Following the initial conversation the applicant attended the office of
Peaceful Lawyers on two occasions at the request of Mr Nguyen. The first occasion occurred
a couple of days after the telephone conversation, and the applicant was interviewed about his
case. A couple of days again after that, the applicant saw Mr Nguyen again. Mr Nguyen told
him that he had a strong case, and that he (Mr Nguyen) would take it on and make an
application.
[12] The applicant tendered two documents in connection with his dealings with Mr
Nguyen. The first was a costs agreement with Peaceful Lawyers executed by the applicant and
Mr Nguyen on 23 August 2013.1 This agreement recorded the following (underlining added):
“The work we have been instructed to do is: Act as a solicitor for and on behalf of
Client; Receive instructions from Client; Provide Client with legal advice; negotiate
with Client’s employer, WMS Gaming Australia Pty Ltd, re Client’s dismissal,
reinstatement, and entitlements; Work with appropriate Australian government
Departments (eg, the Ombudsman), Tribunal and Courts; Prepare and lodge
application with supportive documents for Client’s in relation to the Client’s dismissal;
Liaise and update Client as to the progress of the application; Or other tasks as
required.”
[13] Annexed to the costs agreement was a costs disclosure which stated the following:
“The professional fees are to the paid as follow:
$2,200 after initial the assessment of documents and Client’s circumstance;
conferences with Client; and signing of this Costs Agreement and Disclosure. In
the event that if Client unable to be reinstated and or no compensation paid and or
no entitlement paid-Client will lose /forfeit this $2,200.00.
1 Exhibit B
[2014] FWC 930
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$3,300 to be paid after all supportive documents and application are lodged. In the
event that if Client able to be reinstated and or receive compensation for at least 6
months up front and or receive entitlements - Client will pay further $3,300.00.”
[14] The second document was a receipt issued by Peaceful Lawyers to the applicant and
also dated 23 August 2013.2 It showed that the applicant had on that day paid $2,000 in
professional fees, as part payment of a total amount of $5,500.
[15] After waiting for a further week after he last seen Mr Nguyen, the applicant attempted
to contact Mr Nguyen to ascertain the progress of his matter. He tried to telephone Mr
Nguyen, but he was not put through to him and was told he was too busy. He then decided to
take some action on his own behalf. He prepared a draft letter addressed to the respondent
dated 3 September 2003 (in oral testimony the applicant clarified that the date should have
been 3 September 2013). The applicant tendered this draft letter.3 It outlined the reasons for
the applicant’s view that his termination was unfair, unjust and unreasonable, and sought that
he be reinstated or be given six months’ pay. When asked in cross-examination about those
aspects of the letter which apparently reflect the unfair dismissal provisions of the Act, the
applicant said that he had received advice from friends which led him to put those matters in
the letter.
[16] The applicant said that he did not send the letter, because approximately one or two
days after the drafting of the letter, he was contacted by Mr Nguyen notifying him that that an
unfair dismissal application had been lodged. In cross-examination, he accepted that it may
have been up to four days later (the application having been lodged on 6 September 2013).
The applicant said that Mr Nguyen did not tell him, and he was otherwise unaware, of the 21
day period in which to lodge an unfair dismissal application. He said he first became aware of
this when he read the respondent’s response to his application.
Submissions
[17] The applicant submitted that an extension of time should be granted on the basis that
the applicant suffered psychological distress and shock as a result of the dismissal which
hindered his capacity to seek immediate legal assistance. The applicant further submitted that
representative error was another factor which led to the delay, in that the applicant’s solicitor
was responsible for the delay from 23 August 2013 when he said he would file an application
to 6 September 2013 when the application was actually filed. Additionally, it was submitted,
the applicant’s lack of proficiency in the English language and his limited knowledge of the
process of lodging unfair dismissal applications were also contributing factors preventing the
applicant from acting on his own behalf. It was submitted that these factors taken as a whole
formed sufficient grounds to find that there were exceptional circumstances which led to a
delay in the lodgement of the unfair dismissal application.
[18] The respondent submitted that there were no exceptional circumstances which
warranted the grant of an extension of time. The evidence, the respondent submitted, did not
support the proposition that mental distress or shock was the reason for the late filing of the
application. The respondent pointed to the following factual matters as demonstrating a lack
of any real explanation for the delay and a lack of exceptional circumstances:
2 Exhibit C
3 Exhibit A
[2014] FWC 930
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Ignorance of the time limit does not amount to exceptional circumstances.
The applicant did not obtain legal representation until 14 days after the dismissal,
despite knowing that he should act as quickly as possible.
The applicant “admitted in his evidence” that he did not give express instructions to
Peaceful Lawyers to file his application, and relied on their advice that a claim
should be filed.
There was “no evidence” of the applicant leaving messages with Mr Nguyen.
There was no indication that representative error was the reason for the delay until
after 2.00 pm on 31 January 2014, during the hearing.
The applicant’s solicitor did not give any evidence about the reason for the delay,
and was not present when the applicant gave his evidence.
Considerations
[19] In order to grant an extension of time I must be satisfied that there are exceptional
circumstances taking into account the criteria set out in s.394(3) of the Act. I will consider
each of those criteria in turn having regard to the evidence before me.
[20] I record from the outset that I accept the evidence of the applicant. He presented as a
truthful witness, he answered questions (including questions in cross-examination) directly
and without evasion, and his account of what occurred in the period 9 August to 6 September
2013 was as clear and consistent as one could expect from a witness who did not speak
English as his first language and who was trying to recall the chronology of events which
happened approximately four months ago. Most importantly, his account was corroborated at
the crucial point by the costs agreement and the receipt issued by Peaceful Lawyers. Those
documents only came into evidence because, in response to a question asked by myself after
the end of the applicant’s examination in chief, the applicant volunteered that he had some
documents in his bag which might clarify the matter. The documents were only put into
evidence as a result of the applicant then producing them from his bag. This was consistent
with the overall impression I had that the applicant did not enter the witness box with the
intention of blaming his solicitor for the delay; the issue of representative error only emerged
as the applicant gave his description of the chronology of events. That serves to enhance the
applicant’s credibility.
[21] For reasons which I will explain, I do not accept the respondent’s submission that the
weight to be given to the applicant’s evidence was diminished by the facts that the
explanation the applicant gave for the delay did not emerge until during the hearing and that
no evidence was adduced from his solicitor to corroborate the applicant’s evidence.
The reason for the delay
[22] I do not accept that the distress or shock which the applicant suffered as a result of his
dismissal constituted a reason for the delay. There was no evidence that the applicant suffered
any sort of diagnosable mental injury as a result of his dismissal such as to incapacitate him.
A degree of distress after being dismissed is both understandable and usual; it could not
constitute an exceptional circumstance. In any event, the applicant’s evidence was that only a
week after his dismissal, his shock and distress had diminished to the degree that he was able
to begin to take steps to contest his dismissal.
[2014] FWC 930
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[23] I consider that the real reason for the delay was negligent conduct on the part of the
applicant’s solicitors. The evidence, including the costs agreement and the receipt,
demonstrates that as from 23 August 2013 Peaceful Lawyers’ services had been secured for
the purpose of the lodgement of an unfair dismissal application. The applicant had paid
Peaceful Lawyers $2000 for that purpose. In that circumstance, having regard to the terms of
the costs agreement and his solicitors’ professional obligations, the applicant was entitled to
expect that his solicitor would file a competent unfair dismissal application. In objective
terms, Peaceful Lawyers had, once the costs agreement was executed and the first fees
payment made on 23 August 2013, another week to file the application. Upon a perusal of the
application that was ultimately filed, it is fair and indeed generous to say that no more than an
hour’s work was required to complete it. There was no reason why, the services of Peaceful
Lawyers having been retained, the application could not have been filed in time.
[24] It was reasonable for the applicant, having engaged and paid for the services of a
solicitor, and not having been advised of the 21-day time limit, to wait a week or so before
contacting his solicitor to inquire as to progress. The failure of the solicitor to take those calls,
which might have prompted him to get on with filing the application, further extended the
delay. Theoretically, the applicant might have made his own independent inquiries as to his
legal rights (on the internet, for example) and filed his own application, but again he was
entitled to expect that his solicitors would do what they had been paid to do. I find that the
delay, which in this case was only seven days, was entirely the fault of Peaceful Lawyers.
Whether the person first became aware of the dismissal after it had taken effect
[25] The applicant was aware of his dismissal taking effect on 9 August 2013, upon
receiving the letter of termination.
Any action taken by the person to dispute the dismissal
[26] I have earlier set out the evidence of the applicant, which I have accepted. That
evidence demonstrates that by the end of the second week after his dismissal, the applicant
had taken action to dispute his dismissal by seeking advice from a firm of solicitors and
securing their services in order to have an unfair dismissal application filed. That action ought
to have been sufficient to allow his application to be filed in time. I also note that the
applicant, after he was unable to make contact with his solicitor, drafted but did not send a
letter to the respondent putting his dismissal in issue.
Prejudice to the employer (including prejudice caused by the delay)
[27] The respondent conceded and I accept that the grant of an extension of time would not
cause any prejudice to the respondent.
Merits of the application
[28] It is not possible at this stage to reach any conclusions about the merits of the
application. The respondent submitted, and I accept, that based on the documents annexed to
the application and the employer’s response it would be unlikely that the applicant could
demonstrate any procedural unfairness in his dismissal. However, the applicant contends that
his dismissal was substantively rather than procedurally unfair, in that the performance-based
reasons for his dismissal were unfounded. The merits of that contention could not be assessed
[2014] FWC 930
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without hearing the evidence, and certainly the material before me at this stage could not
allow any reasonable conclusion to be drawn about it. The most that can be said is that I am
not satisfied it is without merit.
Fairness as between the person and other persons in a similar position
[29] This factor is not relevant in the present case.
Conclusion
[30] I am satisfied that there are exceptional circumstances present in this case. The delay
was caused by negligence on the part of the applicant’s solicitors. There is nothing usual or
normal about negligence on the part of a solicitor. It is well established, at least in respect of
a relatively short delay, that the engagement of a solicitor well within the required time period
to file an application is sufficient to constitute exceptional circumstances without the need to
demonstrate some further action having been taken on the applicant’s part. The position was,
with respect, well described by the Full Bench in Robinson v Interstate Transport Pty Ltd4 (in
the context of the very similar extension of time provision in s.366 of the Act):
“[30] Mr Robinson arranged legal advice three days after the termination of his
employment. At that time Mr Robinson requested that Mr Tayler prepare a client
agreement for his consideration and upon receiving the agreement, he executed the
agreement on 13 May 2010, within a week of its receipt. On the day he executed the
agreement, Mr Robinson instructed Mr Tayler to file a general protections application
on his behalf. It is unsurprising that Mr Robinson, having instructed his representative
to lodge his application, relied upon the representative to give effect to his instructions.
To suggest the failure of Mr Robinson to take any action in relation to the lodgement
of his application, after instructing his legal representative to do so and having
complied with all of the representative’s requirements for accepting instructions,
represents inaction on his part, unreasonably imposes a further responsibility upon him
beyond his action of providing clear instructions to Mr Tayler to lodge his application.
[31] As noted by a Full Bench in D La Rosa v Motor One Group Pty Ltd, in the
context of s.170CE of the WR Act:
“As is evident from Clarke, little might be required to satisfy the Commission
that the applicant was blameless in the delay. In the context of a relatively short
delay, it may simply be a matter of establishing that the applicant gave
instructions to lodge [in this case] a Notice of Election and thereafter left
matters in the hands of his or her representative.”
....
[36] We find that there was an acceptable explanation of the reason for the delay in
lodgement of the application - representative error resulting from the oversight of
Mr Robinson’s original representative of the electronic reminder whilst the filing of
the application was within his care and responsibility. In circumstances where Mr
Robinson had promptly sought legal advice following his termination, promptly
4 [2011] FWAFB 2728, (2011) 211 IR 347
[2014] FWC 930
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executed a client agreement prepared on his instructions and, upon doing so,
immediately instructed his original representative to lodge a general protections
application, we find that he was entitled to rely upon his representative to act on his
clear instructions to file an application and was blameless for the delay in lodgement
of the application.
[37] There is no evidence that Mr Robinson took any action to dispute the
dismissal, other than instructing his legal representative to make a s.365 application
under the Act. We consider this to be of limited significance in the circumstances of
this matter, given the short delay in filing the application. In any event, we are
satisfied that there is nothing further Mr Robinson could have been reasonably
expected to do.”
[31] What is all the more extraordinary in the circumstances in this case, although not of
direct relevance to the delay and not necessary for my conclusion concerning exceptional
circumstances, is the conduct of the applicant’s solicitors in respect of the extension of time
application. Far from trying to make good their negligence in filing the application late by
coming forward at the extension of time hearing to admit their error and thereby accept
responsibility for the delay, Peaceful Lawyers did not attend the hearing at all and did not
even provide any instructions to counsel identifying themselves as the cause of the delay. The
applicant was left to explain the situation himself as best he could. This represented a
continuation of the less than satisfactory performance of Peaceful Lawyers’ professional
obligations. That is why I do not consider, contrary to the respondent’s submissions, that the
applicant’s explanation for the delay was in any way vitiated by the lack of assistance he
received in the extension of time hearing from his solicitors. Having regard to these matters,
and the fact that the applicant’s counsel appeared pro bono (for which the Commission
records its appreciation), the applicant does not appear to have received to this point much
value for the legal fees that he has paid.
[32] In summary, the applicant was not to blame for the delay, the delay was short, and no
prejudice has been caused to the respondent. I order that the applicant be allowed an extension
of time in which to file his application.
VICE PRESIDENT
Appearances:
Q. Nguyen of counsel for Mr T. Hoang
A. Deboos, solicitor, for WMS Gaming Pty Ltd
Hearing details:
2014.
OF THE FAIR WORK MISSION THE
[2014] FWC 930
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Sydney:
January 31.
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