1
Fair Work Act 2009
s.394—Unfair dismissal
Greg McFarlane
v
Northern SEQ Distributor - Retailer Authority T/A Unitywater
(U2017/12994)
DEPUTY PRESIDENT DEAN SYDNEY, 7 MARCH 2018
Application for an unfair dismissal remedy – extension of time – representative error.
[1] Mr McFarlane commenced employment with Northern SEQ Distributor – Retailer
Authority T/A Unitywater (Unitywater) in February 2008.
[2] On 7 December 2017 Mr McFarlane lodged an application pursuant to s.394 of the
Fair Work Act 2009 (the Act) claiming that he had been unfairly dismissed by Unitywater.
His application was made nine days outside the 21 day period prescribed by s.394(2) of the
Act.
[3] The matter was listed for hearing on 5 March 2018 to determine whether
Mr McFarlane should be granted an extension of time pursuant to s.394(3) of the Act to make
his application. At the hearing Mr G Hutchinson appeared on behalf of Mr McFarlane and
Mr M Rodgers appeared on behalf of Unitywater.
[4] Section 394(3) of the Act provides:
(3) The FWC may allow a further period for the application to be made by a
person under subsection (1) if the FWC is satisfied that there are exceptional
circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken
effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[5] In assessing whether there are exceptional circumstances, the Commission must have
regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are
exceptional circumstances can it then exercise its discretion to extend time. The onus of
establishing exceptional circumstances is on the Applicant.
[2018] FWC 1296
DECISION
E AUSTRALIA FairWork Commission
[2018] FWC 1296
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[6] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star
Group Pty Ltd1 where the Full Bench said:
“[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.”
[7] I now deal with each of the provisions of s.394(3) of the Act.
Reason for the delay
[8] Mr Hutchinson submitted that representative error was the reason for the late filing of
Mr McFarlane’s application. It was submitted that Mr McFarlane signed the unfair dismissal
application on 24 November 2017 at the offices of his legal representative, within the 21 day
time frame prescribed by the Act.
[9] Mr McFarlane gave evidence that upon signing the application he “expected and had
no reason to expect otherwise, that the application would be lodged with the Fair Work
Commission”.2 At the hearing Mr McFarlane gave evidence of his actions following the
dismissal and stated that once he had completed and signed the application it was left “in the
hands of [his] lawyers”.
[10] Unitywater submits that Mr McFarlane and his representative were aware from
27 October 2017 that termination of Mr McFarlane’s employment was a possibility. It
submits that it is unclear why Mr McFarlane did not take steps to challenge his dismissal
earlier than the date on which he signed the unfair dismissal application, some 17 days after
the dismissal. It submits that there is no evidence of steps taken by Mr McFarlane to follow
up the matter with his lawyers to ensure that it was lodged in time. Unitywater contends that
had Mr McFarlane followed up the matter, there may have been a shorter delay in filing the
application.
[11] The general approach of the Commission where representative error is relied upon to
explain the late lodgement of an application has been considered by a number of Full
Benches. The following general propositions, summarised by the Full Bench in Davidson v
Aboriginal and Islander Child Care Agency,3 should be taken into account in determining
whether or not representative error constitutes an acceptable explanation for delay:
[2018] FWC 1296
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(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 carry out 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.
[12] In Officeworks Ltd v David Parker,4 a Full Bench of the Commission said:
“[14] We consider that this is also the approach which should be adopted in relation to
s.394(3) of the Act and the late lodgement of unfair dismissal applications.
Representative error may be a sufficient reason to allow a further period for an
application to be made. However all the factors in s.394(3) must be taken into account
in determining whether there are exceptional circumstances that warrant extending the
time limit.
[15] The approach which has been adopted by the Commission in relation to
representative error applies principles which have been applied in the courts in relation
to delays or negligence by solicitors in making applications or instituting proceedings
within time limits.
[16] In the circumstances of the present matter we consider that, in deciding whether
or not representative error will constitute an acceptable explanation for delay in the
lodgement of the application, consideration should be given to a variety of factors
including the extent to which the applicant’s own conduct contributed to the delay and
the nature of the representation concerned.
[17] Under the Act, there is no general limitation as to whom a party might be
represented by in proceedings before the Commission. However a person may only be
represented by a lawyer or paid agent in a matter before the Commission, including by
making an application or submission on behalf of the person, with the permission of
the Commission. In general, the legislative policy is that persons will act on their own
behalf in making applications and submissions to the Commission. In so doing, the
[2018] FWC 1296
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person may seek the advice or support of other persons. As the Senior Deputy
President observed in relation to unfair dismissal matters in her reasons for decision:
[11] Applicants are regularly represented before the Commission by a variety
of persons who are not legally qualified or even experienced in industrial law.
Solicitors do not have a right to appear in the Commission. Permission to
appear must be specifically granted.
[12] Support persons who assist applicants to lodge their applications and
appear before the Commission may be family members, friends and even
sometimes social workers or Church support persons.
[18] In circumstances where ‘representative error’ is relied upon in Commission
proceedings as an excuse or explanation for the failure to meet time limits, it is
appropriate to have regard to the professional qualifications and expertise of the
representative concerned. This will enable an assessment to be made as to the extent to
which it was reasonable for a party to rely upon the skills and expertise of the
representative in acting on their behalf. Clearly where the representative is a lawyer,
an experienced industrial advocate, or an officer or employee of an organisation of
employers or employees, it might more readily be concluded that representative error
provides an acceptable explanation for the delay and such error should not be blamed
upon the party concerned. However where the representative chosen has no experience
or expertise in the area of legal and employment matters, there might be less
justification for reliance on that person and the responsibility for delays or other errors
might be attributed to the party concerned.
[19] In general, representative error may be more readily accepted as an explanation or
excuse where the person relied upon has professional qualifications or expertise in
dealing with legal and employment matters than where reliance is placed on a family
member or friend.” (citations omitted)
[13] Having considered the evidence before me and adopting the above approach, I am
satisfied that Mr McFarlane has made out an acceptable explanation of the reason for the
delay in lodging the application. Mr McFarlane was entitled to rely upon his legal
representative to act on his instructions. In circumstances where Mr McFarlane has provided
his completed application to a qualified legal professional within the 21 day time frame, the
delay in the filing of the application cannot be attributed to him.
[14] This weighs in favour of a finding that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[15] There is no dispute that Mr McFarlane was advised of his dismissal on 7 November
2017. I find this weighs against the granting of an extension of time.
Any action taken by the person to dispute the dismissal
[16] It was submitted that Mr McFarlane’s legal representative put Unitywater on notice in
correspondence prior to the dismissal that if a decision was taken to terminate
Mr McFarlane’s employment he reserved the right to rely on that correspondence for the
[2018] FWC 1296
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purpose of an unfair dismissal application. Mr Hutchinson submitted that Unitywater had
been aware from this time that the dismissal would be disputed.
[17] Unitywater submits that following the termination of his employment, Mr McFarlane
did not advise that he intended to dispute the dismissal.
[18] I accept that Mr McFarlane’s legal representative put Unitywater on notice in
correspondence prior to the dismissal that his dismissal would be disputed, however there was
no correspondence post-dismissal. Overall, I find that this is is a neutral factor in determining
whether to grant an extension of time.
Prejudice to the employer (including prejudice caused by the delay)
[19] Unitywater submits that it was “entitled to arrange its affairs and resources on the
basis that an unfair dismissal claim can no longer be made beyond the lodgement period,
except in exceptional circumstances”5 and that given the nine day delay in the filing of the
application it was entitled to assume that Mr McFarlane had decided not to make an
application.
[20] Mr McFarlane submits that there has been no prejudice to Unitywater.
[21] I am not persuaded that granting an extension of time would result in a prejudice to
Unitywater. While a lack of prejudice is an insufficient basis to grant an extension of time, a
lack of prejudice weighs in favour of a finding of exceptional circumstances.
The merits of the application
[22] For the purpose of determining whether to grant an extension of time, the Commission
‘should not embark on a detailed consideration of the substantive case.’6
[23] Unitywater submits that Mr McFarlane was dismissed for serious misconduct.
Mr McFarlane submits that the behaviour engaged in by him was incorrectly characterised as
serious misconduct and should not have resulted in termination of his employment.
[24] On the material before me, I am unable to make a final determination of the merits in
this matter. Accordingly, this is a neutral consideration.
Fairness as between the person and other persons in a similar position
[25] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm7 considered this
criterion and said ‘cases of this kind will generally turn on their own facts. However, this
consideration is concerned with the importance of an application of consistent principles in
cases of this kind, thus ensuring fairness as between the Applicant and other persons in a
similar position, and that consideration may relate to matters currently before the Commission
or matters which had been previously decided by the Commission.’8
[26] Unitywater submits that Mr McFarlane and his colleague were both dismissed as a
result of their conduct on 12 October 2017, and as such there are no issues of unfairness as
between Mr McFarlane and other persons in a similar position.
[2018] FWC 1296
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[27] There is no evidence before me as to the circumstances of Mr McFarlane’s colleague,
and accordingly I find this to be a neutral consideration.
Conclusion
[28] Having considered all of the matters to which my attention is directed by the Act, I am
satisfied that there are exceptional circumstances as to warrant my granting an exception to
the statutory time limit for the lodgement of this application.
[29] An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
G. Hutchinson for Mr McFarlane.
M. Rodgers for Northern SEQ Distributor - Retailer Authority T/A Unitywater.
Hearing details:
2018.
Sydney (By telephone):
February 5.
Printed by authority of the Commonwealth Government Printer
PR600843
1 [2011] FWAFB 975.
2 Exhibit 1.
3 (1998) 105 IR 1.
4 [2014] FWCB 5779.
5 Outline of submissions on behalf of the Respondent, at 29.
6 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
7 [2015] FWC 8885.
8 Ibid at [29].
R OUMISSION THE FAIR THE SEALO
