1
Fair Work Act 2009
s.394—Unfair dismissal
Neil Finlayson
v
Western Health T/A Western Hospital
(U2014/11294)
COMMISSIONER GREGORY MELBOURNE, 20 OCTOBER 2014
Application for extension of time.
Introduction
[1] Mr Neil Finlayson was employed by Western Health T/A Western Hospital (“Western
Health”) as a security guard between 18 March 2002 and his dismissal on 7 July 2014. An
unfair dismissal application was lodged on his behalf by his legal representatives, Nowicki
Carbone Lawyers, on 29 July 2014, one day after the 21 day time limit set by s.394 of the
Fair Work Act 2009 (Cth) (“the Act”).
[2] However, s.394(3) of the Act allows an extension of time to be granted if the Fair
Work Commission (“the Commission”) believes there are “exceptional circumstances” to
warrant the exercise of this discretion. It provides:
“(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.”i
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DECISION
E AUSTRALIA FairWork Commission
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The issue to be decided
[3] Are there “exceptional circumstances” existing under s.394(3) of the Act to warrant
the Commission exercising its discretion to grant Mr Finlayson additional time in which to
make his application?
The evidence and submissions
[4] This matter is somewhat unusual in that two separate submissions have been filed on
behalf of Mr Finlayson. The first submission, together with a witness statement from Ms
Alice Robinson, Mr Finlayson’s representative from Nowicki Carbone, submits the
application was lodged out of time due to representative error.ii However, the second
submission argues Mr Finlayson’s application was actually received within time, and an
extension of time is not required.iii
[5] After receiving both submissions the Respondent’s representative, Tresscox Lawyers
advised the Commission they did not intend to make submissions, and consented to the
Applicant’s request that the matter be determined on the papers. On 3 September the
Commission accordingly advised both parties the matter would be determined in this way.
The first submission
[6] The witness statement of Ms Robinson from Nowicki Carbone sets out the following
series of events in regard to the reason for delay in lodging. iv
On 14 July Mr Finlayson attended Nowicki Carbone and gave Ms Robinson
instructions in relation to an unfair application.
On 24 July Ms Robinson sent a draft of the F2 document to Mr Finlayson seeking
his instructions as to the contents of the document.
On 25 July Ms Robinson received instructions from Mr Finlayson and finalised the
document for lodgement. She emailed him advising his suggested amendments had
been incorporated and confirmed the document would be lodged on his behalf.
Ms Robinson arranged for a cheque in payment of the filing fee. It was ready on 28
July 2014.
On 28 July a copy of the application with the cheque was posted to the Commission.
However, Ms Robinson said while it is her usual “practice” to both post and email a
copy of the application to the Commission, in this case she omitted to send a copy by
email.v
On 29 July she became aware she had not emailed a copy of the application to the
Commission. She then arranged for an email to be sent. It was received on 29 July at
12:05pm and is the first receipt of the application by the Commission.
[7] Her statement concludes by indicating:
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“As a result, and through my error as the Applicant’s representative, the application was
lodged one day out of time.”vi
[8] The submission also refers to various decisions in support of the contention that where
the Applicant is blameless, and the delay in lodging has occurred through no fault of his/her
own, this can constitute the “exceptional circumstances” that warrant an exercise of the
discretion to extend time to make application.
[9] In the Full Bench decision of M N Robinson v Interstate Transportvii (“Robinson”) the
application was lodged three days late due to what was submitted to be representative error.
The Full Bench concluded (references omitted):
“[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.’
[32] For these reasons we are satisfied that Commissioner Simpson erred in his
approach to representative error and his findings as to Mr Robinson’s conduct in that
regard. This error led to an ultimate conclusion which was unsupported by the facts
and which resulted in a decision which was plainly unjust to Mr Robinson in
circumstances where he had acted promptly to obtain legal representation and
instructed his legal representative to file his application. We are satisfied that the
Commissioner erred in the sense of House.”viii
[10] Mr Finlayson’s submissions also made reference to the matter of Clark v Ringwood
Private Hospitalix (“Clark”) in support of the contention that where an Applicant is blameless
representative error can constitute “exceptional circumstances.”x
[11] The submission also made reference to the other matters in s.394(3)(b) - (f) of the Act
that the Commission is required to take account of. In summary, it submits –
Mr Finlayson was aware of his dismissal at the time it occurred.
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He took action to dispute his dismissal after it occurred and within the next seven days
had sought legal advice and instructed his Solicitor to prepare and lodge an unfair
dismissal application on his behalf.
There is no particular prejudice to the employer in granting an extension of time, other
than the usual obligation to respond to the application that would arise in the normal
course of events.
A neutral finding should be made about the respective merits of the matter.
There are no relevant matters about fairness arising between Mr Finlayson and any
other employees in a similar position.
The second submission
[12] The relevant parts of the second submission provided on behalf of Mr Finlayson state
as follows:
“4. The Applicant submits that pursuant to the Unfair Dismissal Benchbook the 21 day
period began the day after his termination took effect, being 8 July 2014. In so
submitting, the Applicant refers the Commission to section 36(1) of the Acts
Interpretation Act 1907 (Cth), which provides the legislative authority for the
calculation of the 21 day period after his dismissal.
5. In light of the Acts Interpretation Act 1907 (Cth) and pursuant to section 394(2) of
the Fair Work Act 2009 (the Act) the Applicant submits that the 21 day timeline in
which to submit his Form F2 Unfair Dismissal Application (the application) began on
8 July 2014 and ended on 29 July 2014. Therefore, the last day for submitting the
application was 29 July 2014.
6. The Applicant further submits that the application was lodged with the Fair Work
Commission via email at 12.05 pm on 29 July 2014, thereby meaning it was lodged
within the 21 day time period as prescribed by the Act.
7. In view of the foregoing, the Applicant respectfully submits that a granting of an
extension of time is not required, as the application was lodged within time. Further
and/or in the alternative, the Applicant notes that he has made submissions with
respect to the delay of one day, in the event that the Commission finds that the 21 day
time limit expired on 28 July 2014.”xi
Consideration
[13] I intend to deal, firstly, with the second submission received on behalf of Mr
Finlayson. It contends that the 21 day period begins to be counted from the day after the
termination takes effect. In Mr Finlayson’s case this would be 8 July. Therefore, the
submission argues the 21 day time period concludes on 29 July.
[14] The submission places particular reliance upon the Unfair Dismissal Benchbook
published by the Commission in July this year. At page 15 the Benchbook poses the question,
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“How is 21 days calculated?” It responds by indicating, “The 21 days for lodgement does not
include the date that the dismissal took effect. This means that day one commences the day
following the dismissal.” The submission interprets this to mean that the 21 days begins to be
counted from the day after the dismissal, so that it is effectively day zero, and day 1 is the
second day after the date of dismissal.
[15] I do not agree with this submission. While it is agreed that the day of dismissal is not
included in the 21 days, the 21 day period does begin to be counted from that date. There is no
contest about the fact that Mr Finlayson was dismissed by Western Health on 7 July.
Therefore, the 21 day period begins to run from that date, and “day 1” is then the day after
that date, being 8 July, and “day 21” is 28 July.
[16] As the application was filed on 29 July it was therefore filed one day after the requisite
21 day period. While I do not believe it is necessary to provide further explanation about what
has been the long-standing practice in calculating the number of days, I note that a similar
conclusion was reached by Senior Deputy President Richards in the matter of Hemi v BMS
Constructionsxii, after he also had regard to the requirements of the Acts Interpretation Act
1901.
[17] Therefore, I am satisfied Mr Finlayson’s unfair dismissal application was filed outside
the requisite time period, if only by one day.
[18] I now turn to consider whether it is appropriate to exercise the discretion to grant Mr
Finlayson additional time in which to make application. In considering this I must have regard
to each of the considerations in s.394(3) of the Act. A number of decisions of this Tribunal
and its predecessors have considered what is required to find exceptional circumstances exist
to justify an extension of time being granted. I refer, for example, to the decision of the Full
Bench in Nulty v Blue Star Groupxiii. It was made in the context of a general protections
application, however, the principles established have been held to be of broader application. A
relevant extract from the Full Bench decision is contained at [13] and [14] and states:
“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.
Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional
circumstance. Indeed, unfortunately, it would seem to be all too common for
dismissed employees to be unaware of the time limits imposed in relation to making
an application for an unfair dismissal remedy or a general protections FWA
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application. The parliament has chosen to condition the discretion to extend time for
making such applications on the existence of “exceptional circumstances”. In doing so
the parliament must be presumed to have proceeded on the basis that an employee who
is aggrieved at being dismissed ordinarily ought be expected to seek out information
on any remedy they may have in a timely fashion such that delay on account of
ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”xiv
[19] I have had regard to these principles, and the various matters in s.394(3) I am required
to take account of, in coming to a decision in this matter.
(a) the reason for the delay
[20] The Full Bench in Clark stated “The following general propositions should be taken
into account in deciding whether or not representative error constitutes an acceptable
explanation for delay. Those propositions are as follows:
“1. 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.”xv
“2. 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.”xvi
“3. 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 carry out those instructions, through no fault of the applicant and despite the
applicants efforts to ensure that the claim is lodged.
4. 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
pursuant to s.170CE (8).”xvii
[21] The decision in Robinson v Interstate Transport Pty Ltdxviii (“Robinson”) is also relied
upon by Mr Finlayson. In that matter the Applicant gave a clear direction to his Solicitor to
make application on his behalf, and the subsequent delay in lodging was due to the Solicitor
overlooking a reminder on the case management system. This was despite the fact that after
providing instructions to his Solicitor the Applicant did little from that point to enquire about
progress of the matter. The application was dismissed at first instance and the decision
appealed. The Full Bench, firstly, noted with approval the approach adopted in Clark. It
continued to indicate:
“[29] We find that the Commissioner erred in diminishing the significance of the
representative error on the basis that Mr Robinson was inactive between 13 May 2010
and 18 June 2010.”xix
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[22] It continued to indicate in the next paragraph :
“[30] 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 the providing clear instructions to Mr Taylor to lodge his application.”xx
[23] It continued:
“[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
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.”xxi
[24] The Full Bench accordingly upheld the appeal concluding:
“In our view, the error by Mr Robinson’s original representative, in circumstances in
which Mr Robinson is blameless for the delay, constitutes an exceptional circumstance
in which the application should be accepted late.”xxii
[25] I now turn to consider the present matter in light of these decisions and the
submissions and evidence of the parties.
[26] I am satisfied the relevant authorities regarding the matter of “representative error”
require that a “clear direction” has been given to the representative. This was the case in
Robinson, where a clear and express direction was given by the client to the Solicitor to make
application on his behalf. I am also satisfied that this is what occurred in the present matter,
and having given that clear and express direction Mr Finlayson cannot be blamed for the fact
his application was not lodged within the requisite time period. I am also satisfied the
decisions referred to make clear that this situation can constitute the “exceptional
circumstance” that warrant an extension of time being granted in which to make application.
[27] I am also required to take account of the remaining matters in s.394(3) and now deal
with each in brief detail.
(b) whether the person first became aware of the dismissal after it had taken effect
[28] It is clear Mr Finlayson was aware of his dismissal after it had taken effect.
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(c) any action taken by the person to dispute the dismissal
[29] Mr Finlayson clearly took action to dispute his dismissal by seeking legal advice
within the 21 day timeframe, and by giving instructions for an unfair dismissal application to
be lodged on his behalf. The evidence of Ms Robinson indicates that he sought legal advice
within a week after his dismissal, and gave instructions at that time for an unfair dismissal
application to be lodged on his behalf.
(d) prejudice to the employer (including prejudice caused by the delay)
[30] Western Health did not make submissions about this matter, and Mr Finlayson submits
it will suffer no particular prejudice, other than what would ordinarily involved in dealing
with an application of this kind. Given that Western Health is a large and well resourced
employer, and the delay involves only one day, I am satisfied this is essentially a neutral
consideration in all the circumstances of this matter.
(e) the merits of the application
[31] I am in no position to express any view about the respective merits of Mr Finlayson’s
application based on the submissions in this matter. I also note that the relevance of the issue
of “merit,” when determining an application for an extension of time, was considered by a
Full Bench of the Australian Industrial Relations Commission in Kyvelos v. Champion Socks
Pty Limitedxxiii (“Kyvelos”) when dealing with similar legislative provisions to those now
contained in the Act. The The Full Bench held:
“In considering whether to accept an application which has been lodged outside the time
prescribed in s.170CE(7) the Commission may consider whether, on the basis of the
material relied on by the parties, the applicant has a sufficient case on the merits
although the discretion should be exercised having primary regard to the circumstances
which led to the late lodgement.”xxiv
[32] It continued:
“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). In particular, it is undesirable that parties be
exposed to the requirement to present their evidentiary cases twice.”xxv
[33] As indicated, I have not formed a view about the respective merits of the matter, based
on the submissions now before the Commission. However, the decision in Kyvelos indicates
that I am not required to do so at this point. I am therefore satisfied this is also a neutral
consideration.
(f) fairness as between the person and other persons in a similar position.
[34] I am again satisfied this is a neutral consideration.
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Conclusion
[35] I have had regard to each of the considerations in s.394(3) in coming to a decision in
this matter. As indicated, I am satisfied the reason for the delay, being representative error, is
the most significant matter to be taken into account. I am also satisfied the reason for the
delay was entirely due to Mr Finlayson’s representative. In these circumstances I am satisfied
it is appropriate to exercise the discretion available to the Commission to grant additional time
to Mr Finlayson in which to make application. The matter will now be listed again to deal
with the substantive issues concerning his unfair dismissal application.
COMMISSIONER
Final written submissions:
The Applicant filed submissions in accordance with directions on 15 August 2014 and filed
further submissions on 20 August 2014.
The Respondent declined to file submissions and advised the Commission of this on 26
August 2014.
Printed by authority of the Commonwealth Government Printer
Price code C, PR555008
i Fair Work Act 2009 (Cth) at s.394(3).
ii Submissions with respect to extension of time submitted by the Applicant on 15 August 2014 at para 10.
iii Further Submissions with respect to extension of time submitted by the Applicant on 20 August 2014 at para 7.
iviv Witness Statement of Alice Robinson dated 15 August 2014 .
v Ibid at para 12.
vi Ibid at para 14.
vii [2011] FWAFB 2728.
viii Ibid at [30]-[32].
ix (1997) 74 IR 413.
x Submissions with respect to extension of time submitted by the Applicant on 15 August 2014 at para 12.
xi Further Submissions with respect to extension of time submitted by the Applicant on 20 August 2014 at para 4-7.
xii [2013] FWC 3593.
xiii [2011] FWAFB 975.
xiv Ibid at [13]-[15].
xv Above n.vi; PR5279 at page 7.
THE FAIR WORK COMMISSION SEAL THE
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xvi Ibid.
xvii Ibid at page 8.
xviii [2011] FWAFB 2728.
xix Ibid at [29].
xx Ibid at [30].
xxi Ibid at [36].
xxii Ibid at [41].
xxiii Dec 1294/00 M Print T2421.
xxiv Ibid at [14].
xxv Ibid.
