1
Fair Work Act 2009
s 604—Appeal of decision
Todd Perry
v
Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine
(C2016/1283)
DEPUTY PRESIDENT SAMS
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER SAUNDERS SYDNEY, 28 SEPTEMBER 2016
Appeal against decision [2016] FWC 2972 of Deputy President Kovacic at Melbourne on 12
May 2016 in matter number C2015/6627.
[1] On 28 July 2016 we granted permission to Mr Todd Perry (Appellant) to appeal
against a decision1 and order2 of Deputy President Kovacic refusing to allow a further period
within which the Appellant could lodge an application under s.365 of the Fair Work Act 2009
(Act). We heard the appeal on 19 August 2016. At the conclusion of the hearing we
announced our decision to allow the appeal and quash the decision of the Deputy President.
We were satisfied, on a rehearing, having regard to the matters set out in s.366(2) that there
were exceptional circumstances warranting consideration of discretion, to allow a further
period within which the Appellant’s application may be lodged. We also announced that there
were no other considerations weighing against the exercise of our discretion and accordingly
we allowed a further period until 16 November 2015 for the application to be lodged. We said
we would publish our reasons for our decision in due course. These are our reasons.
[2] Prior to his dismissal in early October 2015, the Appellant had been employed by Rio
Tinto Shipping Pty Ltd (Respondent) since August 2006. On 16 November 2015, the
Appellant lodged with the Fair Work Commission (Commission) an application under s.365
of the Act, for it to deal with a general protections dispute involving a dismissal. On the facts,
as found by the Deputy President relating to the date of the Appellant’s dismissal,3 in order
for the application to be progressed, the Appellant required the Commission to exercise its
discretion under s.366(2) of the Act to allow a further period within which the application
could be lodged. The Deputy President determined that matter on 12 May 2016.
1 [2016] FWC 2972.
2 PR580270.
3 We note that the Deputy President's finding as to the date of the Appellants’ dismissal was not sought to be agitated on
appeal.
[2016] FWCFB 6963
REASONS FOR DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/awardsandorders/html/PR580270.htm
http://www.fwc.gov.au/decisionssigned/html/2016fwc2972.htm
[2016] FWCFB 6963
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[3] The Deputy President did not allow a further period within which the application
could be lodged and dismissed the application. The Appellant lodged a Notice of Appeal, for
which permission has been granted, against the Deputy President’s decision and order.
[4] The Notice of Appeal lodged by the Appellant sets out the following grounds of
appeal. The Appellant contends that the Deputy President erred:
in not allowing a further period of time for the Appellant to make his application
under s.365 of the Act;
by not being satisfied that the reason for the delay in the Appellant making his
application constituted exceptional circumstances. In particular, the Deputy
President:
(a) erroneously held that the decision in Gao v Department of Human Services
[2011] FWAFB 5605 was relevant to the question of whether exceptional
circumstances existed in the present case;
(b) failed to consider the existence and terms of the Rio Tinto Fair Treatment
System, and the actions of the respective parties under the System;
(c) failed to consider the evidence of the Appellant as to his health;
(d) failed to consider the evidence of the Appellant as to his living arrangements;
and
by not being satisfied that the action taken by the Appellant to dispute the dismissal
constituted exceptional circumstances. In particular, the Deputy President failed to
take into consideration material passages from the Appellant’s correspondence with
the Respondent on 4 October 2015.
[5] It is to be noted from the above that the grounds of appeal do not allege that the
Deputy President failed to take into account that the reason for the delay was explicable on
account of representative error made by the solicitors acting for the Appellant. This is
unsurprising since that explanation was not given during the proceedings before the Deputy
President. Indeed, during the proceedings before the Deputy President, the Appellant did not
disclose the nature of any advice that he received from the solicitors about his dismissal, the
date of its effect or the time within which he might lodge his application. The Appellant
maintained privilege over the legal advice.4
[6] During the hearing of the appeal the following exchanges with Counsel took place:
“DEPUTY PRESIDENT GOSTENCNIK: But one of the difficulties that I have with
that is that your client’s position that is his assumption as to the termination date might
be set to have been reasonably held in circumstances where he received erroneous
advice or at least advice about the termination date. But we don’t know what advice he
4 AB at 62, [37].
http://www.fwc.gov.au/decisionssigned/html/2011fwafb5605.htm
[2016] FWCFB 6963
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received, and for all we know because he doesn’t disclose it, the advice was that the
termination date was 1 October and he should act quickly. We just don’t know.
MR GISONDA: Well, the evidence of Mr Perry at PN138, page 28 of the appeal book,
is that on 27 October we worked on the basis of 21 days after that. That’s the evidence
we do have.
. . .
DEPUTY PRESIDENT GOSTENCNIK: My microphone has some problems but Mr
Gisonda for my part the acceptable explanation for the delay point or the reason for
the delay would be far more persuasive if your client was operating on the basis of
some advice that he received or the fact that he didn’t receive advice at all about the
time limits in circumstances where his solicitors were in possession of the letter of 26
October. Now I note in the statement at first instance, that your client maintained legal
professional privilege over that and putting to one side whether in these circumstances
the solicitors should be acting at all, that’s a matter for them, but there is an
opportunity for your client, if he wishes, to make application to lead further evidence
on appeal, and subject to hearing Mr Dewberry about that point, it’s an application that
we might entertain. If you want a few minutes to discuss that with your client we
could adjourn, allow you to do that and then deal with any application to lead further
evidence if you were to make it.
MR GISONDA: If the Commission - if convenient, if the Commission were to adjourn
for a few minutes I can take some instructions, that’d be - I’d be much obliged.
DEPUTY PRESIDENT GOSTENCNIK: I see Mr Dewberry’s wanting to jump to his
feet so - - -
MR DEWBERRY: Your Honour, I’ll just make the point that you’ll find and I’ll find
the reference in the transcript, during the hearing before Kovacic DP this issue of
representative error was raised and Mr Gisonda - - -
DEPUTY PRESIDENT GOSTENCNIK: I know it was raised, yes. I’ve read the - - -
MR DEWBERRY: He didn’t - yes, he didn’t take the opportunity then so my
submission will be that that opportunity was given and lost.
DEPUTY PRESIDENT GOSTENCNIK: Yes. No, I understand that and we can - if an
application is made we can give consideration to all of that but I’m simply raising the
point that there is capacity to make such an application and Mr Gisonda you can have
a short adjournment to consult with your client and instructing solicitors.
. . .
DEPUTY PRESIDENT SAMS: Yes, Mr Gisonda.
MR GISONDA: Thank you so much for the indulgence. I wish to make an application
to lead further evidence from Mr Perry about what he was advised, if anything, about
the time limit that he had with respect to his claim.
DEPUTY PRESIDENT SAMS: Right. What do you say about that Mr Dewberry.
[2016] FWCFB 6963
4
MR DEWBERRY: The respondent’s position, your Honour, is an opportunity was
given to Mr Perry and his advisers in the hearing before Kovacic DP to lead that
evidence, and that opportunity wasn’t taken, no submission was made of
representative error. In fact, the matter was dealt with as I discussed with your Honour
Gostencnik DP. It was discussed in the matter before Kovacic DP and Mr Perry’s
representative didn’t take up that opportunity, and in my submission this is not a case
where your Honour should exercise a discretion under section 607(2) of the Act to
give further evidence - - -
DEPUTY PRESIDENT GOSTENCNIK: Mr Dewberry, Mr Dewberry.
MR DEWBERRY: Yes.
DEPUTY PRESIDENT GOSTENCNIK: Sorry, can I put this to you.
MR DEWBERRY: Yes.
DEPUTY PRESIDENT GOSTENCNIK: Mr Perry below acts - well presumably takes
advice from his instructing solicitors. On one view, his instructing solicitors if there is
a representative error probably should not have been acting. There appears a conflict
and so the advice that he receives in those circumstances needs to be viewed in that
light and so it’s not simply a case where at first instance Mr Perry had the opportunity
to run a case about representative error. He was represented by the same solicitors who
- if there is a representative error, made the error and were advising him about his
rights as to maintain privilege. So it’s not your garden variety, you had the
opportunity, you didn’t take it up scenario is it?
MR DEWBERRY: Well, I say that’s a matter as between Mr Perry and his advisers
and their insurers. It’s not a matter that we need to get into the detail on today. The
question is whether or not he’s had an opportunity to put that evidence, which he did.
If they made a forensic decision in putting the application together and responding to
the jurisdiction objection to not run a representative error case, then he would have
given instructions on that matter. Presumably he’s going to run that argument now, it’s
something they discussed at the time he took advice from his lawyers in the period
from 27 October onwards and they’ve made again a decision presumably during that
period to make the application on the basis that he was within time and only in
response to the jurisdiction objection raised by the respondent.
Did Mr Perry have to address the issue of why he delayed in making the application?
And again given the opportunity to run a representative error case, he’s given
instructions that he will proceed on the basis that he understood his employment to
come to an end on 26 October, and therefore he had 21 days took that full 21 days in
order to put the application in. So your Honour I don’t think it’s any different to a case
where he’s failed, whether on good advice or not, to lead evidence on this issue, and I
don’t think it’s something that the respondent should be prejudice by now having to
deal further with the matter and further evidence.
DEPUTY PRESIDENT SAMS: Well, is that what you’re foreshadowing, Mr
Dewberry? If the application is granted.
[2016] FWCFB 6963
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MR DEWBERRY: That there would be prejudice or that we would - - -
DEPUTY PRESIDENT SAMS: No, that you would be required to produce further
evidence yourself.
MR DEWBERRY: Well, I don’t know. I’d have to take instructions and see what
evidence Mr Perry puts on about representative error. But there’s prejudice in any
event in having had the matter dealt with by Kovacic DP, having a hearing before your
Honours in relation to permission to appeal, preparing for and turning up and
advocating a case today put on one basis, and then at this late stage meeting an
argument that was available to Mr Perry from that beginning that it was representative
error that caused the delay in him making this application. I don’t think that there’s
any case to show that the evidence couldn’t have been obtained and put before
Kovacic DP at first instance, and that’s the test from Akins v National Australia Bank
which we’ll have to consider if we get into the argument.
DEPUTY PRESIDENT GOSTENCNIK: Anything further?
MR DEWBERRY: Only to say that I think if we’re going to explore this issue further,
I’d like to make some more submissions on section 607(2) and the test from Akins v
National Australia Bank, and your Honours will know that the three principles or the
three factors that must exist from that case are that it must be shown that the evidence
could not have been obtained with reasonable diligence for use at the proceedings at
first instance.
I’ll say that here they could have and a decision was simply made not to run the case
on that basis. The evidence must be such that there must be a high degree of
probability that there would be a different decision, and my submission will be that
ultimately it won’t make a difference to the outcome in this case, given the other
factors under 366, and the evidence must be credible. We can’t test that until the
evidence is given.
DEPUTY PRESIDENT SAMS: Well, we propose to hear the new evidence Mr
Gisonda, so do you wish Mr Perry to go into the box?”5
[7] The Appellant’s evidence was that he first made contact with his solicitors on 27
October 2015,6 the day after he received the correspondence from the Respondent dated 26
October 2015. In that correspondence the date of effect of the termination of the employment
is “clarified” as 1 October 2015.7 The Appellant said that he initially supplied documentation
to his solicitors so that they could assess the merits of his case and he was given advice, that
for an adverse action claim to be made, he had 21 days within which to lodge the application
and that the 21 day period began from 26 October 2015, being the date of the last
correspondence he had received from the Respondent.8 The Appellant also gave evidence that
he did not receive any advice from any other person which was contrary to the advice given to
5 Transcript PN 64 – PN 65, PN 84 – PN 90 and PN 94 – PN 112.
6 Transcript PN 116.
7 AB at 113.
8 Transcript PN 117 – PN 120.
[2016] FWCFB 6963
6
him by his solicitors and that it was his belief, based on that advice, that the 21 day period
commenced from 26 October 2015.9
[8] The Appellant’s evidence was that he had provided documents including the letter of
26 October 2015 to his solicitors electronically, “the very day after contacting” his
solicitors.10 The Appellant’s evidence was also that, at no stage prior to the date of the hearing
of the appeal had there been a discussion between the Appellant and his solicitors that his
solicitors may have made an error in their advice and that he acted diligently in lodging his
application acting on the assumption that the advice his solicitors had given was correct.11
[9] Section 607(2) of the Act provides that:
“The FWC may:
(a) admit further evidence; and
(b) take into account any other information or evidence.”
[10] Relevant material that comes to light subsequent to the time of an initial hearing may
be admitted if it bears on an issue to be determined in the appeal.12 It is uncontroversial that
the exercise of the discretion to admit further evidence is to be guided by the principles set out
in Akins v National Australia Bank.13 In Akins, the Court said that:
“Although it is not possible to formulate a test which should be applied in every case to
determine whether or not special grounds exist there are well understood general
principles upon which a determination is made. These principles require that, in
general, three conditions need be met before fresh evidence can be admitted. These
are: (1) It must be shown that the evidence could not have been obtained with
reasonable diligence for use at the trial; (2) The evidence must be such that there must
be a high degree of probability that there would be a different verdict; (3) The evidence
must be credible.”14
[11] In considering whether to exercise the discretion in s.607(2), it is permissible in an
appropriate case to depart from the principles set out in Akins and the principles need not be
strictly applied.15
[12] It is evident from the evidence given by the Appellant that he was unaware the advice
that he had received from his solicitors might have been erroneous until the matter was raised
by us during the hearing of the appeal. It seems to us that in order that the Appellant be able to
9 Transcript PN 121 – PN 123.
10 Transcript PN 139 – PN 143.
11 Transcript PN 161 – PN 164.
12 The Australian Workers' Union v Killarnee Civil & Concrete Contractors Pty Ltd, ITF The Thompson Family Trust;
Construction, Forestry, Mining and Energy Union [2011] FWAFB 4349 at [22].
13 (1994) 34 NSWLR 155.
14 Ibid at [160].
15 J.J. Richards & Sons Pty Ltd v Transport Workers' Union of Australia [2010] FWAFB 9963 at [95].
http://www.fwc.gov.au/decisionssigned/html/2010fwafb9963.htm
http://www.fwc.gov.au/decisionssigned/html/2011fwafb4349.htm
[2016] FWCFB 6963
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raise the issue of representative error during the hearing of the initial application, the
Appellant needed to be aware that such an error was made or at least possibly made by his
solicitors. That his solicitors did not raise this possibility with him is, to say the least,
unfortunate. The Appellant’s solicitors, having been in possession of all of the relevant
documents and having advised the Appellant to make the application, should have advised
him of the real possibility that such an application would be out of time given the content of
the letter dated 26 October 2015.
[13] Once objection was taken, the failure to advise the Appellant that the application was
possibly out of time or of the possibility that a representative error may have been made is
quite remarkable. Also remarkable is that fact that the solicitors did not appear to advise the
Appellant that representative error might found an acceptable explanation for the delay, or
that he could put his case in the alternative, namely that his dismissal took effect on 26
October 2015 but if that be wrong, the error was made by his solicitors. But even more
remarkable is that the solicitors continued to act without furnishing that advice or at least to
have advised the Appellant of the obvious conflict of interest that had arisen. Had the
Appellant been advised, as he should have been once objection to the application was taken,
to seek alternative representation, it is inevitable that the possibility that erroneous advice was
given, would have come to light. Consequently, the issue and its significance to the question
to be determined would have been agitated during the proceedings before the Deputy
President.
[14] There is no suggestion that the evidence given by the Appellant about the advice that
he received, the documents he provided to his solicitors or the time at which he was first
advised that there may have been representative error, is anything other than credible and we
accept that it is.
[15] In these circumstances, we are satisfied that the evidence given by the Appellant
before us could not have been obtained by the Appellant with reasonable diligence for use
during the hearing before the Deputy President. It also seems to us that the existence of
representative error provides an entirely different complexion upon the reason for the delay in
making the application on time or within a time period much earlier than that in which the
application was ultimately made. Whilst the following proposition cannot be stated with
absolute certainty, we consider that an explanation of representative error for which the
Appellant is blameless, would likely have resulted in a different conclusion than that reached
by the Deputy President.
[16] We therefore admitted the further evidence of the Appellant pursuant to s.607(2) of the
Act and accept it as evidence that there was representative error in the advice given to the
Appellant by his solicitors. We consider that the error provides an explanation for the delay at
least for the period between 27 October 2015 and the date on which the application was
ultimately lodged by the Appellant. We will return to this later in these reasons.
[2016] FWCFB 6963
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[17] As we have already indicated, the evidence adduced during the appeal places a
significantly different complexion upon the matters that need to be considered in determining
whether there are exceptional circumstances to those that were before the Deputy President.
[18] In these circumstances it is appropriate that the decision and order made by the Deputy
President be reviewed on the ground that a substantial wrong or injustice may have occurred,
albeit through no act or omission on the part of the Deputy President. We therefore quash the
decision and order made by the Deputy President and it is appropriate that we consider the
matter for ourselves by way of rehearing, taking into account the evidence given by the
Appellant before us.
[19] The Deputy President found that the Appellant’s dismissal took effect on 1 or 4
October 2015. This finding was not challenged on appeal. We think the better view, on the
material, is that the Appellant’s dismissal took effect on 1 October 2015. Consequently, an
application within time needed to be lodged by 22 October 2015. The application under s.365
was lodged on 16 November 2015. The application was therefore lodged some 25 days
outside of the time prescribed. The Commission may allow a further period within which an
application may be made.16 This discretion will only be exercised if the Commission is first
satisfied there are “exceptional circumstances”, taking into account:
the reason for the delay; and
any action taken by the person to dispute the dismissal; and
prejudice to the employer (including prejudice caused by the delay); and
the merits of the application; and
fairness as between the person and other persons in a similar position.17
[20] It is clear from the structure of s.366(2) of the Act that each of these matters must be
taken into account in assessing whether there are “exceptional circumstances”. In making this
assessment it must always be borne in mind that although individual matters that are
identified might not, when viewed in isolation, be particularly significant, it will be necessary
to consider not only the matters individually but the matters collectively, and ask whether
collectively those matters establish exceptional circumstances.
[21] The phrase “exceptional circumstances” is not defined in the Act, however, it is now
well established that the phrase “exceptional circumstances” speaks to circumstances that are
out of the ordinary course, unusual, special or uncommon. But the circumstances do not need
to be unique or unprecedented. Nor do they need to be very rare.
[22] We now turn to consider the matters in s.366(2).
16 Paragraph 366(1)(b) of the Act.
17 Subsection 366(2) of the Act.
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[23] When considering the reason for the delay, the explanation given by the Appellant
needs to be a credible or acceptable explanation. The reason or reasons need to provide an
acceptable explanation for the whole of the period of the delay. Necessarily, the period of the
delay with which the explanation is concerned is in the period commencing immediately after
the time for lodging an application had expired and ending on the day on which the
application was ultimately lodged. However, the circumstances from the date the dismissal
took effect must be considered in assessing whether the explanation proffered for the delay is
an acceptable or credible explanation.18
[24] The Appellant was first advised about the termination of his employment on
redundancy grounds on 10 March 2015. At that stage he was advised that unless he was able
to be redeployed to another position in the intervening period, his employment with the
Respondent would end on 1 June 2015.19 The date of the termination of employment was
subsequently altered to 1 October 2015 subject to the possibility of redeployment to another
position.20 The Appellant was not required to attend for work between 1 July 2015 and 1
October 2015.21
[25] The Respondent has in place a Fair Treatment System through which an employee
may raise concerns about certain decisions that are work-related, impact on the employee and
which the employee thinks are unfair.22
[26] On 15 June 2015, the Appellant lodged a complaint under the Respondent’s Fair
Treatment System in which he complained about the early ending of his contract and asserted
that if he could not be redeployed into another position by 1 October 2015 then on that date he
should be given five weeks’ notice of the termination of employment.23 The Appellant
received a response to his complaint in a letter from the Respondent dated 9 September
2015.24 The Appellant, dissatisfied with the response, sought further clarification through
correspondence dated 4 October 2015.25 In this correspondence the Appellant reiterates his
earlier complaint that his contract was brought to a premature end and that he should be given
five weeks’ notice of termination of his employment commencing 1 October 2015.26
[27] By letter dated 26 October 2015, the Appellant is advised by way of clarification, that
he had been notified on 10 March 2015 that his role was to become redundant and that the
redundancy was to take effect on 1 June 2015, that that date was extended to 1 October 2015
and that the employment ended on 1 October 2015.27
18 See Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12] and Ozsoy v Monstamac
Industries Pty Ltd [2014] FWCFB 2149 at [31]-[33].
19 AB at 164.
20 AB at 171.
21 Ibid.
22 AB at 93.
23 AB ar 59.
24 AB at 100.
25 AB at 104.
26 Ibid.
27 AB at 113.
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb2149.htm
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[28] As is clear from evidence earlier recounted, the Appellant sought legal advice the day
after he received the 26 October 2015 letter. The Appellant’s evidence before the Deputy
President was that until 26 October 2015 he had held out hope that his complaint would be
resolved favourably and that he had sought to resolve these differences using the
Respondent’s internal mechanism.28 Once it was clear that the complaints process would not
yield a favourable result, the Appellant acted. In our view, his hope of a favourable outcome
was not unreasonably held, given the earlier alteration to the termination date and the
contingent nature of the notice given. Arguably, the earlier notice was ineffective since it was
conditional and his assessment that he was entitled to notice on 1 October 2015 was correct.
[29] In our view, the delay between Thursday, 22 October 2015 and Monday, 26 October
2015 is explicable for the reasons given by the Appellant understood in the context of his
dealings with the Respondent since March of 2015. We are satisfied in the circumstances that
the explanation is a credible one and one that we find acceptable.
[30] There seems little doubt, based on the Appellant’s evidence before us, that the delay
during the period between 27 October 2015 and the date on which the application was
ultimately lodged was occasioned by representative error. In and of itself representative error
will not provide an acceptable explanation for a delay. A person relying upon representative
error must also show that the person was blameless and did not by act or omission cause or
contribute to the error.29
[31] On the evidence it seems clear to us that the Appellant acted promptly in engaging
solicitors. He provided the solicitors with all relevant documents, including the letter of 26
October 2015, promptly. He received advice from his solicitors that the time for making the
application, the subject of this appeal, commenced to run from 26 October 2015 and having
received legal advice acted in accordance with that advice. There is nothing in the evidence
suggesting that by his actions or through his omission the Appellant contributed to the error.
In the circumstances, we are satisfied that the Appellant was blameless for the representative
error made by his solicitors, namely in furnishing the Appellant with advice that the date from
which time is to be reckoned for the purposes of making his application was from 26 October
2015. We are satisfied that the error identified caused the delay and explains entirely the
period of delay between 27 October 2015 and the day on which the application was lodged.
[32] For these reasons we are satisfied that there is an acceptable explanation for the whole
period of the delay. This is a matter that therefore weighs in favour of the Appellant.
[33] We turn next to consider any action taken by the Appellant to dispute the dismissal. In
our decision granting the Appellant permission to appeal we concluded that the Appellant
made out an arguable case of error on the part of the Deputy President in his conclusion that
the Appellant had not taken any step disputing dismissal. Putting to one side the fact that the
Appellant has clearly been agitating about the dismissal since he was advised of the
redundancy of his position in March 2015, it seems to us that the Appellant’s correspondence
28 AB at 62.
29 See Clark v Ringwood Private Hospital (1997) 74 IR 413 at 418‒420.
[2016] FWCFB 6963
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of 4 October 2015 disputes his dismissal. True it is that the Appellant raises a number of other
issues, but one must not lose sight of the forest for the trees. The Appellant asserts in the
correspondence that the early termination of his assignment and resulting retrenchment was a
breach of the agreement relating to his assignment.30 He says that the notice of termination
was inadequate and contrary to the Respondent’s international assignment policy.31 He also
says that the steps the Respondent was required to take pursuant to its retrenchment policy
before implementing a retrenchment had not been followed.32
[34] The 4 October 2015 letter, which contains complaints concerning the dismissal, is in
our view aptly described as action taken by the Appellant to dispute his dismissal. It is not to
the point that he does not allege any contravention of the general protections provisions of the
Act. That which is required is that the Appellant is able to show that he took some step to
dispute his dismissal, and it is not necessary that he dispute his dismissal in a manner that
formulates the cause of action that he ultimately seeks to pursue. That which is relevant, is
that a step was taken to dispute the dismissal, not a microscopic examination of the grounds
upon which the Appellant is disputing the dismissal.
[35] We are satisfied that the Appellant took a step to dispute his dismissal by sending the
Respondent his correspondence of 4 October 2015. That he took such a step weighs in his
favour.
[36] We turn next to consider whether there is any prejudice to the employer (including
prejudice caused by the delay). Prejudice to the employer will usually be a factor that will
weigh against an applicant who seeks to have the time within which such an application may
be made extended. However, the absence of prejudice without more will likely be an
insufficient basis to extend time. The Deputy President’s analysis as to the issue of prejudice
was not challenged in the appeal. The Deputy President concluded that, in the circumstances,
the question of prejudice was a neutral consideration. Having reviewed the material for
ourselves so far as it relates to prejudice, we agree.
[37] We now consider the merits of this application. The Deputy President concluded that
on the material, he was unable to form a considered view as to the merits of the application
and so he considered the question of merits to be neutral. An assessment of the merits of the
application is nevertheless required.
[38] That assessment is to be made on the basis of the material available. Sometimes that
assessment might be that on the available material, a merits assessment cannot be made. In
those circumstances, the consideration will be neutral. Section 366(2) requires that the merits
of an application be taken into account.
[39] In our assessment the Appellant has an arguable case. The Appellant has set out in his
application all of the constituent elements which go to making good his case. He has
30 AB at 104.
31 AB at 107.
32 AB at 108.
[2016] FWCFB 6963
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identified the adverse action (inter alia, the dismissal) that he alleges has been taken; he has
identified workplace rights he has exercised; and he alleges that he was dismissed because of
or for reasons that included the exercise by him of one or more of those rights.
[40] There seems to us to be no dispute that adverse action, by way of a dismissal, was
taken by the Respondent against the Appellant within the meaning of the Act. It is not
suggested in the Respondent’s response to the application that the Appellant did not exercise
the workplace rights alleged or that the matters identified are not workplace rights within the
meaning of the Act. As matters presently stand, the Respondent will be presumed to have
taken the adverse action for the reason alleged unless it proves otherwise. The Respondent
will bear the onus of establishing the reason it took the adverse action was not for the reason
or did not include the reason alleged. The assessment that cannot be made is whether the
Respondent will be able to discharge that onus. In our view, that the Appellant has an
arguable case on the analysis above weighs in his favour.
[41] Finally, we turn to consider fairness as between the Appellant and other persons in a
similar position. Cases of this kind will generally turn on their own facts. However, this
consideration is concerned with the importance of the application of consistent principles in
cases of this kind, thus ensuring fairness as between the Appellant and other persons in a
similar position. This consideration may relate to matters currently before the Commission or
matters previously decided by the Commission.
[42] It has generally been accepted in decisions of this tribunal and its predecessor in
dealing with the question of whether to allow a further period within which this kind of
application33 is made, that the existence of a representative error causing the delay and for
which a person is blameless, absent other countervailing factors weighing against a
conclusion there are exception circumstances, will justify such a conclusion that there are
exceptional circumstances. Subject to other discretionary consideration, the existence of
exceptional circumstances in such a case will support the exercise of the discretion to extend
time. The rationale for this view is that the errors of the representative should not be visited
upon an applicant in circumstances where an applicant has not contributed to the error. In the
circumstances of this case, considerations of fairness as between the Appellant and other
persons in a similar position weigh in favour of the Appellant.
[43] Statutory time limits imposed on the exercise of a person’s right to make an
application are an expression of the Parliament’s intention that rights must be exercised
promptly within a particular time so as to bring about certainty. Time limitations seek to
balance a right to bring an action, against the desirability for prompt action and certainty. This
is so that questions about actions that have been taken will be agitated within a particular
period, otherwise that right is lost.
33 Similar considerations apply in determining whether to allow a further period in connection with unfair dismissal
applications to the Commission and before it to the Australian Industrial Relations Commission.
[2016] FWCFB 6963
13
[44] A person who seeks to prosecute a general protections dispute involving a dismissal
must make that application within 21 days after the dismissal takes effect. Only in exceptional
circumstances should the Commission consider allowing a further period.
[45] Weighing all of the matters set out in s.366(2) as we have done above, leads us to
conclude that there are exceptional circumstances warranting the consideration of whether we
should exercise our discretion to allow a further period within which the application may be
made.
[46] Apart from addressing the specific matters in s.366(2) of the Act, neither party pointed
to any particular discretionary consideration that might be relevant in deciding whether to
allow a further period. We are not aware of any consideration, which would weigh against the
exercise of our discretion. Having concluded that there are exceptional circumstances, to not
allow the Appellant a further period would deprive the Appellant of a potential remedy
elsewhere. This would be unjust. We are therefore persuaded to exercise our discretion to
allow the Appellant a further period within which to lodge his application. The application
may be lodged by 16 November 2015.
Conclusion
[47] For the reasons given above, we make the following orders:
1. the appeal is upheld;
2. the decision in [2016] FWC 2972 and order in PR580270 are quashed;
3. the time within which the Appellant’s application under s.365 of the Act
maybe made is extended to 16 November 2015;
4. the application is remitted for a conference to be conducted in accordance with
s.368 of the Act.
DEPUTY PRESIDENT
Appearances:
Mr E Gisonda, Counsel for the Appellant
Mr S Dewberry, Solicitor for the Respondent.
ORK WORK COMMISSION FAIR THE SEAL OF
[2016] FWCFB 6963
14
Hearing details:
Sydney.
2016.
August 19.
Printed by authority of the Commonwealth Government Printer
Price code C, PR585881
