1
Fair Work Act 2009
s.604—Appeal of decision
Liam Hambridge
v
Spotless Facilities Services Pty Ltd
(C2017/2438)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN
COMMISSIONER WILSON
SYDNEY, 7 JULY 2017
Appeal against decision [2017] FWC 2148 of Deputy President Kovacic at Canberra on 18
April 2017 in matter number U2017/1338.
Introduction and factual background
[1] Mr Liam Hambridge has applied for permission to appeal and appealed a decision1 of
Deputy President Kovacic issued on 18 April 2017 (Decision). The effect of the Decision was
to refuse Mr Hambridge an extension of the time to lodge an application for an unfair
dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act) and to dismiss the
application that had been received by the Fair Work Commission (Commission). An order2
dismissing the application was also issued by the Deputy President on the same day (Order).
[2] At the hearing before us on 30 May 2017 Mr Hambridge was self-represented, and the
respondent, Spotless Facilities Services Pty Ltd (Spotless) was represented by Ms Katherine
Aistrope of the Australian Industry Group.
[3] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be
lodged within 21 days after the dismissal took effect or within such further period as the
Commission allows under s.394(3). Section 394(3) 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
1 [2017] FWC 2148
2 PR591917
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DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 2811
2
(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.
[4] Mr Hambridge’s employment was terminated by Spotless with effect on 25 November
2016. On 9 December 2016 Mr Hambridge lodged an application with the Commission (first
application). The first application was sent as an attachment to an email sent by Mr
Hambridge which was headed “Unfair Dismissal Claim Application” and said “Please see
attached F8 application for unfair dismissal lodged by Liam Hambridge against Spotless Pty
Ltd. Please advise if further information is required for lodging of this form or if other
documentation is required for this application to be lodged”. The attached first application
was not on the prescribed form for an unfair dismissal remedy application (Form F2), but
rather used the form for a general protections application involving a dismissal (Form F8).
Form F8 consists of a series of questions or requests for information to which the applicant
must respond. Mr Hambridge filled out the form as required. In response to the request in the
form to “Describe the actions of the Respondent that have led you to make this application”
(paragraph 3.1), Mr Hambridge set out in detail what may be characterised as alleged unfair
treatment by Spotless, but did not allege he had been dismissed for a prohibited reason.
Paragraph 3.2 of the form asks the question “Which section(s) of the Fair Work Act 2009 do
you allege the Respondent contravened when they took (or threatened or organised the above
action against you?”, and then lists various provisions of Pt.3.1 of the FW Act for selection.
Mr Hambridge placed a cross next to “s.340 Protection”. In response to the request at
paragraph 3.3, “Explain how the action you have described in 3.1 has contravened the
section(s) of the Fair Work Act 2009 you identified in question 3.2”, Mr Hambridge answered:
“Spotless refusal to accept or discuss concerns regarding mistreatment and bullying in
the workplace or discuss concerns regarding correct workplace protocols not adhered
to. Multiple requests and concerns raised regarding the matter and inaccurate records
being stated. Dismissal undertaken without proper evidence or investigation and
inaccurate statements made. Dismissal undertaken while FWC stop bullying
investigation taking place3 without investigation and while refusing to accept evidence
and details being provided.”
[5] After he sent his email attaching the first application, Mr Hambridge received a
response the same day indicating that “Your message entitled: Unfair Dismissal Claim
Application has been accepted for delivery to the recipient’s mailbox…”.
[6] Spotless lodged its response to Mr Hambridge’s first application (using Form F8A,
Response to general protections application) in which, among other things, it denied that any
adverse action had been taken against Mr Hambridge because he had proposed to exercise a
3 Mr Hambridge had, prior to his dismissal, lodged an application to stop bullying under Pt.6-4B of the FW Act. That
application was discontinued on 1 December 2016.
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3
workplace right. It also contended (in answer to paragraph 2.2 of the form) that “The reasons
for the Applicant’s dismissal are set out in the attached letter of termination dated 25
November 2016. The Respondent does not agree with the Applicant’s characterisation of the
reasons for dismissal and maintains that the reasons given for the termination were genuine
and valid reasons.”
[7] Mr Hambridge’s first application was listed for a telephone conciliation conference
before a staff conciliator on 7 February 2017. At the hearing at first instance, Mr Hambridge
explained what had occurred on that date as follows:
“The first I actually knew that it wasn't an unfair dismissal claim was after we had the
hearing and had the phone conference, the Fair Work Commission representative said,
"Why didn't you go for unfair dismissal?" I said, "Well, I thought that's what this
hearing was". They said, "No, it's a general protections". I asked what that was. She
explained the difference between the two. From that point I withdrew that application
and put in an unfair dismissal, which was what I wanted to do from the beginning.”4
[8] Mr Hambridge’s account of the conciliation conference is confirmed by the staff
conciliator’s file note below (which was also reproduced in the Decision):
“Applicant advised that at all times he had filed an unfair dismissal. Advising that he
had lodged the application (F8) believing that he was filing an Unfair Dismissal, the
subject heading of the application email was “Unfair Dismissal” the body of the letter
related to unfair dismissal and was surprised to learn that we were dealing with a
General Protection. He then went on to say that he had received a receipt from FWC
stating that he had filed an unfair dismissal. He has requested time to seek legal
advice. The conciliation could not proceed.”
[9] On 9 February 2017 Mr Hambridge discontinued the first application, and lodged a
new unfair dismissal remedy application using the correct Form F2 (second application). The
second application was lodged 55 days outside the 21-day period permitted by s.394(2)(a).
Accordingly it was necessary for Mr Hambridge to obtain an extension of time under
s.394(3). In an email accompanying his second application, Mr Hambridge requested such an
extension be granted on the basis that he had intended to file, and thought that he had filed, an
application for an unfair dismissal remedy, and that he was misled by the Commission in that
he was advised to use the Form F8 and was sent a delivery receipt acknowledging receipt of
an unfair dismissal application.
The Decision
[10] In the Decision, the Deputy President took into account the matters required to be
considered under s.394(3) of the FW Act. In relation to the reason for the delay (s.394(3)(a)),
the Deputy President was not satisfied that Mr Hambridge had been incorrectly advised by
Commission staff as to which form to use or that he had used the form F8 as a result of his
use of the search function on the Commission’s website.5 The Deputy President then
concluded:
4 Transcript 6 April 2017 PN14
5 Decision at [18]-[19]
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“[20] The above analysis supports a finding that Mr Hambridge simply used the wrong
form. While he may have done so inadvertently, in the absence of any probative
evidence to the contrary the error appears to have been his.
[21] As noted by Commissioner Gregory in Ardolli6 “Ignorance of the law and the
Commission’s procedures are circumstances that are often encountered.”7 That
appears to be the case in this matter.
[22] This does not point to the existence of exceptional circumstances.”
[11] In relation to the other matters required to be considered under s.394(3), the Deputy
President found, in summary:
s.394(3)(b): Mr Hambridge became aware of his dismissal on the day it took effect,
and this did not point to the existence of exceptional circumstances;8
s.394(3)(c): “It is not disputed that Mr Hambridge lodged a general protections
application involving dismissal on 9 December 2016”, but took no other steps to
dispute his dismissal, and this was a neutral consideration;9
s.394(3)(d): Spotless would not be disadvantaged in defending the application if an
extension of time was granted, and this was a neutral consideration;10
s.394(3)(e): in the absence of a substantive hearing of the evidence, it was not
possible to form a considered view as to the merits of the application, and this was
a neutral consideration;11
s.394(3)(f): this factor was not addressed by the parties, and was a neutral
consideration.12
[12] The Deputy President’s overall conclusion was that there were no exceptional
circumstances warranting the grant of an extension of time to lodge the second application.13
Appeal grounds and submissions
[13] Mr Hambridge advanced the following as the grounds for his appeal:
All the evidence pointed only to an intention by him to apply for an unfair
dismissal remedy.
6 Gani Ardolli v Money Talk Pty Ltd T/A Money Talk Planners [2015] FWC 4557
7 Ibid at [33]
8 Decision at [23]-[24]
9 Decision at [25]-[26]
10 Decision at [27]-[30]
11 Decision at [31]-[34]
12 Decision at [37]
13 Decision at [39]
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5
The Commission, in not confirming the correctness of the application at the time of
processing, failed in its duty of care towards him.
The 21 day rule in an unfair dismissal matter was to protect against applicants
changing their application due to a belief that they were not succeeding in one
application and might have greater success in another, and that was clearly not the
case in this matter.
It was beyond reasonable belief to accept that the combination of factors in this
matter could be construed as anything other than “a situation which is out of the
ordinary course, unusual, special or uncommon”.
The public interest was attracted because administrative error should not be
allowed as a loophole to prevent the Commission from hearing the merits of an
unfair dismissal matter, particularly in the case of unrepresented parties with
limited knowledge of the Commission’s processes and terminology.
[14] Spotless submitted that none of the indicators of public interest to warrant granting
permission to appeal were raised in this case, given that the appeal did not raise any issue of
importance and general application, did not relate to a diversity of decisions at first instance
or a result which was counter-intuitive, or involve the application of legal principles which
appeared disharmonious with other decisions. At its highest the appeal alleged injustice, but
there was nothing in the Decision which caused it to be at odds with what might be
considered a proper outcome. The Decision was not attended by any appealable error. There
was no error of fact as alleged by Mr Hambridge, and in any event none of the errors met the
test of significance in s.400(2) of the FW Act. Spotless submitted that the Deputy President
correctly identified the test and matters to which he was required to have regard under
s.394(3), considered those matters and correctly identified the relevant principles, and did not
take into account any irrelevant consideration. The Decision was not unreasonable or
manifestly unjust, and the appeal could not succeed.
[15] In the course of the hearing of the appeal, an additional factual issue and an additional
legal matter arose. The factual matter was that, in response to questions from the bench, Mr
Hambridge asserted from the bar table that:
when he was told at the conciliation conference that he had filed a general
protections dismissal application, not an unfair dismissal remedy application, “...I
questioned her [the conciliator] because all the forms saying, ‘Unfair Dismissal’,
and only ever wanting to file for unfair dismissal. I was quite shocked at the time to
learn this. I was quite upset that it wasn’t pointed out at the time of the original
submission. If someone had have come back and clarified, saying ‘You’ve
submitted an F8 form but you’ve had an unfair dismissal application form’, I
would have withdrawn it straightaway and resubmitted the correct form”14; and
he was advised by the conciliator that “I can proceed with the general protections
application or I can go withdraw and resubmit with an unfair dismissal application
14 Transcript 30 May 2017 PN22
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and I would have to seek an extension of time because it was outside of the 21
days”.15
[16] Spotless submitted that we should have no regard to the factual matters contained in
the above assertions, because that would amount to the admission of new evidence in the
appeal contrary to the principles stated in Akins v National Australia Bank.16 Alternatively, if
the factual assertions were accepted in the appeal, Spotless sought to rely upon an affidavit
affirmed by Celia Yuen, Spotless’ Head of Group Workplace Relations and HR Legal on 6
June 2017. In that affidavit, Ms Yuen deposed that she represented Spotless at the conciliation
conference on 7 February 2017, and said:
“After the joint session, the conciliator came back to us in private session, following a
lengthy private session with the Applicant (approximately 1 hour), and stated words to
the effect that:
a. The Appellant was greatly surprised that the matter was a general
protections claim;
b. the Appellant believed he filed an unfair dismissal claim;
c. the Appellant was advised by the conciliator to seek legal advice.”
[17] Ms Yuen appended her contemporaneous notes of the conciliation conference, which
confirm her account.
[18] The legal question was whether the Commission had the power under s.586 of the FW
Act to allow a correction or amendment to Mr Hambridge’s first application so that it was
brought using the correct form, or to waive Mr Hambridge’s error in using the wrong form as
an irregularity. We permitted Spotless to file a further written submission concerning this
issue, and it filed such a submission on 6 June 2017. It submitted that:
there was no power to correct, amend or waive the irregularity under s.586;
the Full Bench decision in Ioannou v Northern Belting Services Pty Ltd17 had made
it clear that there was no power under s.586 to change the nature of an application
from an application pursuant to s.365 to an application pursuant to s.394 of the FW
Act;
the Full Bench’s reasoning equally applied to the reverse proposition;
s.586 was not a procedural provision which allowed an applicant to amend an
application to add or substitute a new claim for relief or a new foundation in law
for a claim for relief, that arose out of the same or substantially the same facts as
the original claim;
Mr Hambridge bore responsibility for initiating the wrong type of application;
15 Transcript 30 may 2017 PN26
16 [1994] FCA 1209; 34 NSWLR 155
17 [2014] FWCFB 6660; 245 IR 279
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any advice given by any staff member of the Commission could not be relied upon,
since it was not the function of the Commission to provide advice to litigants; and
in any event, there was no evidence that the Commission’s staff conciliators were
delegated the Commission’s powers under s.586.
Consideration
Permission to appeal
[19] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision maker.18 There is no right to appeal and an appeal may only be made with
the permission of the Commission.
[20] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from
a decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in
relation to a matter arising under this Part can only, to the extent that it is an appeal on
a question of fact, be made on the ground that the decision involved a significant error
of fact.
[21] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v
Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and
Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. The task of
assessing whether the public interest test is met is a discretionary one involving a broad value
judgment.19 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin,
identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive, or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters.”20
[22] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
18 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and
Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
19 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
20 [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
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of appealable error.21 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.22
[23] We consider that it would be in the public interest to grant permission to appeal. We
consider that the appeal raises three issues which are novel and of potential wider application:
(1) whether the first application was a general protections application or, in
substance, an unfair dismissal remedy application using the wrong form;
(2) if the latter, whether the first application could have been corrected or amended
under s.586(a), or treated as an application the subject of an irregularity capable of
waiver under s.596(b); and
(3) whether the first two of these matters were relevant to whether there were
exceptional circumstances justifying the grant of an extension of time under s.394(3)
in respect of the second application.
[24] We therefore grant permission to appeal as required by s.604(2).
The appeal
[25] The critical factual consideration in this matter, we consider, is the nature of the first
application that was filed by Mr Hambridge. The Deputy President found in the Decision that
“... it is clear that Mr Hambridge intended to make an unfair dismissal application but used the
wrong form when he lodged his general protections application on 9 December 2017”.23
Insofar as that was a finding concerning Mr Hambridge’s intention when he made the first
application, it was not challenged by either party in the appeal and was indubitably correct on
the basis of the material before the Deputy President. The corollary of that finding, of course,
is that Mr Hambridge did not intend to make a general protections application, and used the
Form F8 by mistake. Notwithstanding his conclusion concerning Mr Hambridge’s intention,
the Deputy President nonetheless treated the first application as if it were a general
protections application rather than an unfair dismissal remedy application using the wrong
form. That the Deputy President treated the first application as such is apparent at paragraph
[20] of the Decision (in relation to the reason for the delay) and paragraph [25] (in relation to
whether there was any action taken to dispute the dismissal).
[26] We consider that the Deputy President erred in doing so. The Commission is required
by s.577(b) to perform its functions and exercise its powers in a manner that is “quick,
informal and avoids unnecessary technicalities”. In this case, that requirement would operate
to direct the Commission to look at the substance of the first application, not the form that
happened to be used to make it. In substance, we consider that it was an unfair dismissal
application: it was intended to be one, it was described as one in Mr Hambridge’s covering
email, and its contents were concerned with contentions of unfairness in the dismissal rather
21 Wan v AIRC (2001) 116 FCR 481 at [30]
22 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28],
202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar
Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB
1663, 241 IR 177 at [28]
23 Decision at [18]
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than any cause of action for a contravention of Pt.3-1 of the FW Act. It must be acknowledged
that Mr Hambridge attempted in the first application to respond to requests and questions
concerning the general protections provisions of the FW Act, but it is apparent that he did so
in an endeavour to complete a form which he understood at the time to be for an unfair
dismissal remedy application.
[27] Section 585 of the FW Act requires that “An application to the FWC must be in
accordance with the procedural rules (if any) relating to applications of that kind”. The first
application, because it was not made using the prescribed form, clearly did not comply with
s.585. But the FW Act does not provide that an application that is not made in accordance
with the applicable procedural rules is necessarily invalid. Section 585 is the first provision in
Subdiv.A, Applications to the FWC, of Div. 3 of Pt.5-1. Immediately following is s.586,
which provides:
586 Correcting and amending applications and documents etc.
The FWC may:
(a) allow a correction or amendment of any application, or other document relating to
a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the
FWC.
[28] Section 587(1)(a) then provides:
587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may
dismiss an application if:
(a) the application is not made in accordance with this Act;…
[29] Section 588 (within the same subdivision of the FW Act) authorises persons to
discontinue applications.
[30] The interaction between ss.595, 586 and 587(1)(a) was discussed in Mihajlovic v
Lifeline Macarthur24 in the context of an unfair dismissal application that was filed
prematurely and other than in accordance with s.394(1). The Full Bench said:
[42] ...An application which was filed prematurely is properly to be characterised as
one which was not made in accordance with s.394(1) of the Act. We do not consider
that the Act evinces a purpose to render any such application automatically invalid and
of no effect. Rather, the Commission is conferred with a discretionary power to
dismiss such an application under s.587(1)(a), either on its own initiative or upon
application. The Commission also has a discretion under s.586(b) to waive any
irregularity in the form or manner in which an application is made.
24 [2014] FWCFB 1070; 241 IR 142
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[31] It follows, we consider, that Mr Hambridge’s error in using the wrong form for his
first application, in non-compliance with s.585, could have been dealt with in any one of three
ways: by correction, amendment or waiver by the Commission under s.586, by dismissal of
the application under s.587(1)(a), or by Mr Hambridge discontinuing the application under
s.588.
[32] Spotless’s reliance on the Full Bench decision in Ioannou v Northern Belting Services
Pty Ltd25 as standing against the proposition that s.586 could have been used to correct Mr
Hambridge’s use of the wrong form in his first application is, with respect, misplaced.
Ioannou concerned an application to amend an unfair dismissal remedy application to
transform it into a general protections application. The Full Bench’s conclusions in that matter
were as follows (footnote omitted):
“[22] Having regard to these considerations, we have serious reservations whether the
power in s.586 of the Act can be relied upon to convert an unfair dismissal application
into a general protections application. Section 586 does not provide a source of power
to revoke or set aside an application. Neither does it, in our view, enable the
Commission to “correct” or “amend” an application made under one type of statutory
provision so that it becomes an application under a fundamentally different provision.
[23] The other reason for our conclusion relates to the provisions of Division 3,
Subdivision B of Part 6-1 (Multiple Actions) of the Act. These provisions deal with
cases involving a dismissal where more than one cause of action might be available for
the same conduct or circumstances.
[24] We consider that the use of any power under s.586(a) of the Act to allow an
unfair dismissal application to be converted into a general protections application is
not permissible having regard to the multiple actions provisions of the Act. The
exercise of the power under s.586 for the benefit of the applicant would achieve for the
applicant indirectly that which is directly prohibited by the multiple actions
provisions.”
[33] Because Mr Hambridge’s first application was in substance an unfair dismissal
application using the wrong form and not a general protections application, the conclusions in
Ioannou are inapplicable. The action that might have been taken under s.586 was not a
conversion of the application to one of a fundamentally different character; it would merely
have been a correction, amendment or waiver of an irregularly-made unfair dismissal remedy
application. Spotless’s further submission that staff conciliators do not have delegated power
under s.586 does not take the matter any further; any such action could have been taken by a
Commission member if the irregularity in the first application had been properly identified.
[34] It seems to us that the proper characterisation of Mr Hambridge’s first application as
an unfair dismissal remedy application made using the wrong form, and the potential for the
irregularity in that application to have been remedied under s.586 rather than being dealt by a
discontinuance and a second application, were matters critical to the consideration of whether
there were exceptional circumstances justifying an extension of time to lodge the second
application. They were fundamentally the reasons why there was a second application filed
late in the first place, and thus were necessarily relevant under s.394(3)(a). Further, since Mr
25 [2014] FWCFB 6660; 245 IR 279
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Hambridge had had an unfair dismissal remedy application on foot since 9 December 2016,
this was necessarily relevant to whether he had taken action to dispute his dismissal under
s.394(3)(c).
[35] A decision as to whether to extend time under s.394(3) involves the exercise of a
broad discretion.26 Therefore it will be necessary, in an appeal against a decision made under
s.394(3) to demonstrate that there was appealable error in the exercise of the discretion. This
will require the identification of an error of the type described in House v The King27 - that is,
that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into
account an irrelevant consideration or failed to take into account a relevant consideration, or
has made a decision which is unreasonable or manifestly unjust. We consider that the Deputy
President erred by not taking into account as relevant considerations the critical matters we
have identified. This caused the exercise of the discretion to miscarry. The appeal will
therefore be upheld and the Decision quashed.
Re-determination re extension of time
[36] Pursuant to s.607(3)(b), we will ourselves re-determine the issue of whether Mr
Hambridge should be allowed a further period of time to make the second application. In
doing so, we will take into account the material that was before the Deputy President, as well
as the additional factual materials that was placed before us in the appeal (which includes Mr
Hambridge’s responses to questions from the bench, which were not contradicted, and Ms
Yuen’s affidavit affirmed on 6 June 2017).
[37] In relation to the reason for the delay (s.394(3)(a)), it is clear that the late second
application arose from the following set of circumstances:
(1) Mr Hambridge mistakenly filed the first application, which was in substance
an unfair dismissal remedy application, using the wrong form. We adopt the Deputy
President’s conclusion that this was Mr Hambridge’s error, and was not the result of
any misdirection by the Commission’s staff or any problem with the Commission’s
website. Nonetheless the error amounted to no more than irregularity in the form in
which the application was made.
(2) Despite Mr Hambridge having made clear in his covering email to the
Commission that he intended to lodge an unfair dismissal application, he was not
advised that he had used the wrong form or that his application would not be treated as
an unfair dismissal remedy application. Accordingly Mr Hambridge held the belief
until the conciliation conference that he had in fact lodged an unfair dismissal remedy
application on 7 February 2017, and was surprised to be informed otherwise. Ms
Yuen’s affidavit confirms the position in this respect. We consider that it was not in
the circumstances unreasonable for him to hold this belief.
(3) At the conciliation conference, Mr Hambridge was advised by the conciliator
that he could proceed with the first application as a general protections application or
he could discontinue the first application, file a new application and seek an extension
26 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21]
27 (1936) 55 CLR 499
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of time. It was also suggested to him that he obtain legal advice. It is apparent that Mr
Hambridge did not seek independent legal advice, but took the second course
suggested by the conciliator. That was the reason why there was a late second
application filed.
(4) In fact, as earlier discussed, Mr Hambridge had the additional option of
seeking from the Commission a correction or amendment to what was in substance an
unfair dismissal remedy application (by lodging an amended application using the
correct form), or by seeking that his irregular use of the wrong form be waived.
However, as a self-represented litigant, it is wholly understandable that he was unable
to identify that course of action. Nor was it identified to him by the conciliator. That
comment is not meant as any form of criticism, since the circumstances were unusual,
and the conciliator was in the difficult position of having to provide a self-represented
litigant with an appropriate degree of assistance without purporting to provide partisan
legal advice.
(5) In taking the course that he did, Mr Hambridge acted promptly and reasonably
by discontinuing the first application and filing the second application within a 2-day
period.
[38] We consider that the reasons for the delay were highly unusual and, apart from the
initial error in using the wrong form, largely beyond the control of Mr Hambridge. They
favour the grant of an extension of time.
[39] Mr Hambridge first became aware of the dismissal on the day it took effect on 25
November 2016 (s.394(3)(b)). He then took action to contest the dismissal by filing the first
application on 9 December 2016, 14 days later (s.394(3)(c)). Taken together, these matters
favour the grant of an extension, since Mr Hambridge having become aware of the dismissal
promptly took action to contest it by way of the first application.
[40] We agree with the Deputy President’s conclusion, for the purpose of s.394(3)(d), that
the delay has not caused any prejudice to Spotless in the sense of disadvantaging its capacity
to defend the application. However we regard this as a matter which thereby favours the grant
of the extension. We agree with the Deputy President’s conclusion under s.394(3)(e) that it is
not possible at this stage to make an assessment of the merits of the application, and this is
therefore a neutral consideration. We also agree that fairness as between Mr Hambridge and
other persons in a similar position (s.394(3)(f)) is not a relevant consideration and should be
treated neutrally.
[41] Having regard to the above matters, we are satisfied that exceptional circumstances
exist. A simple procedural error by Mr Hambridge led to a set of circumstances which
ultimately caused him to discontinue the first application and make the late second
application, when in fact the matter could have been rectified by the use of powers under
s.586 without the need to make any late application at all. That is clearly an unusual situation.
The jurisdictional prerequisite for the grant of an extension of time is satisfied, and for the
same reasons and taking into account the same matters we exercise our discretion in favour of
granting the extension. A mistake in using a wrong form by a self-represented applicant
should not lead to an outcome which is fatal to the applicant’s access to the Commission’s
jurisdiction.
[2017] FWCFB 2811
13
Orders
[42] We make the following orders:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision ([2017] FWC 2148) and Order (PR591917) are quashed.
(4) An extension of time until 9 February 2017 is granted to Mr Hambridge to
make his unfair dismissal remedy application in matter U2017/1338.
VICE PRESIDENT
Appearances:
L. Hambridge, Applicant.
K. Aistrope on behalf of the Respondent.
Hearing details:
2017.
Sydney:
30 May.
Final written submissions:
Submissions of Spotless, dated 6 June 2017.
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OF THE FAIR WORK MISSION THE
