1
Fair Work Act 2009
s.394—Unfair dismissal
Laetisha Diotti
v
Lenswood Cold Stores Co-op Society T/A Lenswood Organic
(U2015/12407)
SENIOR DEPUTY PRESIDENT
O’CALLAGHAN
ADELAIDE, 10 NOVEMBER 2015
Application for relief from unfair dismissal - extension of time not granted.
[1] Ms Diotti has lodged an application pursuant to s.394 of the Fair Work Act 2009
(the FW Act) in relation to the termination of her employment with Lenswood Cold Stores
Co-Operative Society Ltd T/A Lenswood Apples (Lenswood Co-Op). The application was
considered a telephone conference convened on 9 November 2015. At this conference, I
advised that I had concluded that the application was lodged outside of the statutory time limit
but that I would consider whether the time for lodgement of Ms Diotti’s unfair dismissal
application should be extended. This decision sets out the background and my reasons for
concluding that this time should not be extended.
[2] The application was lodged on behalf of Ms Diotti by Mr Blewett, of United Voice.
[3] That application advised that Ms Diotti’s dismissal took effect on 29 September 2015
and provided the following reason for the late lodgement:
“Because the applicant was not provided with reasons for her dismissal, she was
initially unsure what to do. However she spoke with United Voice on 15 October, and
instructed United Voice to issue proceedings. The proceedings were not, however,
issued until 22 October 2015. This was due to oversight by United Voice in the course
of the transfer of the matter from one official to another.
There is no prejudice to the employer. A United Voice Official contacted the employer
on 19 October 2015 to request an explanation of the reasons for the dismissal of the
applicant. In that discussion United Voice official advised the employer that the matter
may be contested, which was why United Voice sought the reasons for dismissal. The
employer undertook to provide written reasons to the applicant.
Given the circumstances, in particular that the cause of delay is an error by United
Voice, and the lack of prejudice to the employer, an extension of time should be
granted.”1
[2015] FWC 7659 [Note: An appeal pursuant to s.604 (C2015/7384) was
lodged against this decision - refer to Full Bench decision dated 27 January
2016 [[2016] FWCFB 349] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2016FWCFB349.htm
[2015] FWC 7659
2
[4] On 23 October 2015 my Associate corresponded with both Ms Diotti and Lenswood
Co-Op and advised that the extension of time issue would be considered through a
telephone conference on 9 November 2015. Substantial information about the extension of
time issue was provided to the parties. Ms Diotti was directed to provide a witness statement
and a copy of any document relied upon relative to the extension of time issue by
2 November 2015.
[5] The Employer’s Response to the application indicated that Lenswood Co-Op
opposed the extension of time and asserted that Ms Diotti’s application lacked merit.
[6] On 20 October 2015, Mr Blewett provided an outline of submissions relative to the
extension of time issue, and statements made out by Ms Diotti and himself. This material was
to the effect that an extension of time should be granted as the delay was the result of
representative error. Mr Blewett asserted that the delay was the result of an error on the part
of United Voice in belatedly lodging the application and should not be visited on the
applicant. Mr Blewett’s statement advised that Ms Diotti had indicated to an official of United
Voice, on 16 October 2015, that she would like to challenge her dismissal. Mr Blewett
understood that a United Voice official spoke with Lenswood Co-Op management on 19
October 2015. Mr Blewett advised that the matter was referred to him on 19 October 2015 but
the short timeframe for the lodgement of the matter was not brought to his attention. He
confirmed this was the reason for the late lodgement. Ms Diotti’s statement confirmed that,
after the termination of her employment she went away for a few days to Kangaroo Island
and, on her return, checked the Fair Work Commission website to establish that she was
eligible to make an unfair dismissal application. At that point she was aware that she had 21
days in which to lodge a claim. Ms Diotti did not pursue the application at that time as she
was uncertain about whether she would succeed in such a claim and did not understand that
United Voice could assist her in these circumstances. On 16 October 2015 she spoke with a
United Voice official in relation to an underpayment claim arising from her previous
employment. She then raised her concerns about the termination of her employment with
Lenswood Co-Op. She understood that official would take the matter up with Lenswood Co-
Op. Ms Diotti confirmed that she spoke with the United Voice official again on 19 October
and was advised that Lenswood Co-Op would be providing reasons for her dismissal to
United Voice within the next few days and that her claim had been referred to the industrial
section of United Voice. Ms Diotti also spoke with Mr Blewett on 22 October 2015. In that
discussion Mr Blewett asked her if she wanted to lodge a claim and she confirmed that this
was the case.
[7] Ms Diotti did not participate in the conference on 9 November 2015 but was
represented by Mr Blewett of United Voice. Mr Parker, of counsel, sought permission to
represent Lenswood Co-Op. That permission was granted by agreement pursuant to
s.596(2)(a). Additionally, Mr Winter of Lenswood Co-Op participated in the conference. I
note that a sound file record of this telephone conference was kept.
[8] I have considered the extension of time issue on the material before me.
[9] The information provided to the parties included a copy of s.394 and advised of the
factors I am required to take into account in considering this matter.
[10] Section 394 relevantly states:
[2015] FWC 7659
3
“394 Application for unfair dismissal remedy
....
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.”
[11] Ms Diotti’s unfair dismissal application was made two days outside of the 21 day
time limit and hence, can only be pursued if this time limit is extended.
[12] I have considered the provisions of s.394(3) in the context of the Full Bench
decision in Nulty v Blue Star Group Pty Ltd2 which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional
circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of
FWA considered the meaning of the expression “exceptional circumstances” in
s.394(3) and held:
“[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.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of
principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was
considered by Rares J in Ho v Professional Services Review Committee No 295, a
case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour
observed:
[2015] FWC 7659
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“23. I am of opinion that the expression ‘exceptional circumstances’ requires
consideration of all the circumstances. In Griffiths v The Queen (1989) 167
CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision
which entitled either a parole board or a court to specify a shorter non-parole
period than that required under another section only if it determined that the
circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they
may reasonably be regarded as amounting to exceptional
circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the
relevant circumstances in combination was a failure to consider matters which
were relevant to the exercise of the discretion under the section (167 CLR at
379). Deane J, (with whom Gaudron and McHugh JJ expressed their
concurrence on this point, albeit that they were dissenting) explained that the
power under consideration allowed departure from the norm only in the
exceptional or special case where the circumstances justified it (167 CLR at
383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J
referred with approval to what Lord Bingham of Cornhill CJ had said in R v
Kelly (Edward) [2000] QB 198 at 208, namely:
‘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.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and
moon appear in the sky everyday and there is nothing exceptional about seeing
them both simultaneously during day time. But an eclipse, whether lunar or
solar, is exceptional, even though it can be predicted, because it is outside the
usual course of events.
27. 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’ in s 106KA(2) 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. And, the
section is directed to the circumstances of the actual practitioner, not a
hypothetical being, when he or she initiates or renders the services.”
[2015] FWC 7659
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[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.”
[13] Mr Blewett asserts that the delay was occasioned by representative error. In order to
consider the entirety of the period from when Ms Diotti was dismissed, I have relied on her
statement which confirms that, after she was dismissed on 29 September 2015, she went away
to Kangaroo Island for a few days.3 On her return she checked the Fair Work Commission
website and was, from that point, aware of the 21 day time limit.4 Apart from accessing the
Fair Work Commission website, she did not seek to challenge the termination of her
employment in any way until 16 October 2015, which was the 17th day after the termination
of her employment. Her statement indicates that, in an unrelated telephone call made to her by
a United Voice official on that day, she explained the circumstances of her dismissal and said
that she would challenge that dismissal if she could. Ms Diotti’s statement confirms hers, and
the union official’s awareness that compliance with the 21 day time limit meant that the
matter had to be pursued quickly.5 Ms Diotti’s statement confirmed that the union official
spoke with her again on 19 October 2015 and advised that she had spoken with the employer
who would be providing reasons for her dismissal within the next few days. Ms Diotti’s
statement confirms that the official said that the matter had been referred to the United Voice
industrial section who would determine whether a claim would be launched. There is nothing
in Ms Diotti’s statement which confirms that she gave explicit instructions to initiate this
application until 22 October 2015 through a telephone discussion with Mr Blewett. In
considering the reasons for the delay I have concluded that there was a period of some
17 days when Ms Diotti effectively did nothing to pursue an application. For most of this time
I have concluded that she was aware of the 21 day time limit. I have accepted Mr Blewett’s
position that the file was referred to him on 19 October 2015, and that, the normal approach
would be to mark such a file as requiring urgent action. Nevertheless, Mr Blewett considered
the file on 22 October 2015, obtained instructions from Ms Diotti to lodge the application,
and did so on that same day. To the extent that the application was not lodged on 20 or 21
October 2015, there is an element of representative error.
[14] The long standing approach6 of the Commission is that representative error may
represent an acceptable reason for the delay and, hence in terms of the current legislative
requirement, an exceptional circumstance. That approach is founded on the principle that, if
an applicant did not contribute to a delay caused by his or her representative, it would not be
fair to hold that error against the applicant. There is no coherent explanation for the delay, of
some 17 days before Ms Diotti indicated concern to her union relative to the termination of
her employment. In these circumstances, I am not satisfied that Ms Diotti’s circumstances
[2015] FWC 7659
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mean that the relatively minimal effect of that representative error favour a finding of an
exceptional circumstance and hence, an extension of time. Whilst I have accepted an element
of representative error associated with Mr Blewett’s inaction in processing the matter between
19 October 2015 and 22 October 2015, any such representative error is not, of itself, a basis
for an extension of time. Appropriate account must be taken of the overall circumstances and
the conduct of the applicant.7 Consequently, all of the actions, or in this case, lack of action on
the part of Ms Diotti are central to the question of whether there is an acceptable reason for
the delay. The circumstances here are simply not properly characterised as fairly explaining
the delay on the basis of representative error. The delay here was fundamentally caused by
lack of action on the part of Ms Diotti even though she was aware of the 21 day time limit.
She simply left it too late to request the assistance of her union.
[15] I have noted that United Voice took action on 16 October 2015, shortly after Ms Diotti
advised of the concerns she had about the termination of her employment, so as to seek an
explanation for this dismissal. Whilst this represents an alternative form of action to the
lodgement of this application, Ms Diotti’s delay in bringing the matter to the attention of
United Voice was of her own making.
[16] I am not satisfied that the granting of an extension of time represents prejudice to the
respondent in this matter but this, of itself, cannot represent a basis for an extension of time.
[17] In terms of the merits of the application, the limited information available to me
indicates that Ms Diotti was dismissed on a summary basis after behaving abusively and
threateningly toward another employee, and Mr Winter. I have noted Mr Blewett’s advice is
that Ms Diotti disputes the Lenswood Co-Op assertions. If these allegations are established,
they would generally represent a valid reason for the termination of her employment.
Notwithstanding this, information about the detail of the process followed by Lenswood Co-
Op are not before me. Consequently, I have regarded the merits of the matter as a neutral
factor with respect to the extension of time issue.
[18] I have reviewed Ms Diotti’s circumstances in the context of the various authorities
referred to me by Mr Blewett. Each of those matters involved consideration of the applicant’s
behaviour in the context of representative error. An appropriate starting point is the Full
Bench decision in M N Robinson v Interstate Transport Pty Ltd8. In that matter the Full Bench
detailed the same approach which I have set out above, in the following terms:
“[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.
[2015] FWC 7659
7
[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.
(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.””
(references omitted)
[19] In Robinson, the Full Bench addressed the particular circumstances of that matter in
the following terms:
“[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.
[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
[2015] FWC 7659
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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.
[33] Accordingly, we grant permission to appeal, uphold the appeal and quash the
decision of Commissioner Simpson in [2011] FWA 696.”
(references omitted)
[20] Consequently, it is clear that the circumstances in that matter were very different to
those of Ms Diotti. In that matter the applicant arranged legal advice three days after his
dismissal and continued to act promptly to pursue the matter. In contrast, Ms Diotti waited for
at least 17 days and, it appears even longer, before giving the instruction to lodge this
application.
[21] In Hoang v WMS Gaming Australia Pty Ltd9 the applicant made contact with the
representative in the second week after the dismissal took effect and consequently promptly
concluded a costs agreement with that representative. In Finlayson v Western Health10 the
applicant gave instructions to lodge the application within seven days of the employment
termination and was found to have acted appropriately to pursue the matter. In Combes v Lee
Crane11 there was no apparent dispute that the applicant had acted properly in the matter and
that the delay was entirely the fault of the representative. In Clement v Grange Aged Care12
the applicant contacted a union immediately following the termination of employment and
persistently followed up on the application. In Varcoe v ACE Insurance13 the applicant gave
instructions with respect to the lodgement of an application and entered into a costs payment
arrangement within nine days of the termination of employment taking effect. I have
concluded that each of these authorities have considered the entirety of the period from when
the termination of employment took effect with particular emphasis on the actions taken by an
applicant. In this case, Ms Diotti elected not to take action until late in the 21 day time period.
Whilst it is true that the application could still have been lodged within time, it was
Ms Diotti’s lack of action at an earlier time that ultimately led to the late lodgement of the
application. If it was the case that United Voice had been requested to initiate the application
at an earlier time and failed to do so, I may well have arrived at a very different conclusion.
[2015] FWC 7659
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However, the facts of this matter relative to persons in similar circumstances to Ms Diotti do
not generally support an extension of time.
Conclusion
[22] For the reasons I have set out above, I am not satisfied that Ms Diotti’s circumstances
can be regarded as exceptional so as to support an extension of time. The request for an
extension of time is refused and, accordingly, the application will be dismissed. An Order
(PR573703) reflecting this decision will be issued.
Appearances (by telephone):
S Blewett for the Applicant.
J Parker of counsel for the Respondent.
Hearing (Conference) details:
2015.
Adelaide:
November 9.
Printed by authority of the Commonwealth Government Printer
Price code C, PR573702
1 Form F2, para 1.4
2 [2011] FWAFB 975
3 Ms Diotti’s Statement, para 9
4 Ms Diotti’s Statement, paras10 and 16
5 Ms Diotti’s Statement, para 13
6 amongst other matters, Clark v Ringwood Private Hospital (1997) 74 IR 413
7 see for example Clark v Ringwood Private Hospital Print S5279 and Comcare v O’Hearn [1993] 119 ALR 85
8 [2011] FWAFB 2728
9 [2014] FWC 930
10 [2014] FWC 6076
11 [2015] FWC 3930
12 [2015] FWC 315
13 [2015] FWC 2805
HIE PAIN WORK CO FAIR SIDENT ALLA FOISSHA EAL O Ht SENIOR DEPUTY
