DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Alice Arsanious
v
Uniting SA Ltd
(U2021/8392)

Application for an unfair dismissal remedy – extension of time – representative error -miscalculation - whether exceptional circumstance – discretionary considerations – extension granted

[1] On 17 September 2021 Alice Arsanious (Ms Arsanious or the applicant) lodged an unfair dismissal application under section 394 of the Fair Work Act 2009 (the FW Act) concerning the termination of her employment by Uniting SA Pty Ltd (Uniting or the respondent) on 26 August 2021.

[2] The application was lodged twenty-two days after dismissal took effect, being one day beyond the statutory time limit. Ms Arsanious says late lodgement was the result of representative error by her solicitor.

[3] This decision deals with whether an extension of time for lodgement should be granted.

[4] I issued directions on 24 September 2021.

[5] Though there appear to be disputed facts on the merits, no disputed facts exist on the extension of time issue. By consent, that matter is determined on the papers (section 397 FW Act not applying 1).

[6] Statements from the applicant and her solicitor (Ms McGillick of Campbell Law) have been filed. Neither person was required for examination. These statements depose to matters of a non-controversial nature and are plausible. I admit those statements into evidence, by consent.

[7] Written submissions were filed by both the applicant and the respondent.

Facts

[8] Uniting operates community aged care services.

[9] Ms Arsanious was employed as a support worker by Uniting in July 2017.

[10] In July 2020 Ms Arsanious sustained an injury resulting in a medical incapacity to perform regular duties.

[11] On 26 August 2021 Uniting wrote to Ms Arsanious advising that her employment was terminated effective that day, with five weeks’ notice paid in lieu. The stated reason for termination was “you are no longer capable of meeting the inherent requirements of your position and contract of employment obligations”.

[12] Ms Arsanious sought legal advice following her dismissal.

[13] On 1 September 2021 Ms Arsanious contacted Campbell Law. An appointment was made for her to meet a solicitor from that firm.

[14] On 9 September 2021 Ms Arsanious met with a solicitor, Ms McGillick. At this meeting Ms Arsanious was advised:

•  of her right to make an unfair dismissal application;

•  that an application needed to be made within 21 days of the dismissal taking effect; and

•  that the last day for filing the application was 17 September 2021.

[15] The date 17 September 2021 was advised by Ms McGillick and based on a calculation she had made.

[16] In providing this advice, Ms McGillick made a miscalculation. Instead of counting the day after dismissal as day one, she calculated it as day zero. Thus, whereas the 21^st day was in fact 16 September 2021, Ms McGillick’s calculation led her to advise Ms Arsanious that the final day for filing was 17 September 2021.

[17] On 14 September 2021 Campbell Law wrote to Ms Arsanious confirming its oral advice (including its advice that the final date for filing was 17 September). Campbell Law sought their client’s instructions.

[18] Upon receipt of her solicitor’s written advice, on or around 14 September 2021 Ms Arsanious instructed Campbell Law to file an unfair dismissal application in the Commission.

[19] Ms McGillick prepared an application, as instructed. Believing she had until 17 September 2021, she filed it by email at 10.22am that day (17 September).

[20] At the time of filing, both Ms McGillick and the applicant believed the application had been filed in time.

[21] On 24 September 2021 I issued directions wherein I informed the parties that “a provisional examination of the unfair dismissal application…appears to indicate that it has been filed outside the 21-day period.”

[22] Only as a result of communication from the Commission was the applicant’s solicitor made aware of the late filing.

[23] Only upon service of the unfair dismissal application on Uniting did the employer become aware that the fairness of its dismissal was in contest.

Submissions

[24] Ms Arsanious contends that an extension of time should be granted because the delay was wholly attributable to representative error, the nature of which was a calculation error by her solicitor.

[25] The applicant says that it was reasonable for her to rely upon the advice of her solicitor as to the date for filing, and that she (the applicant) provided instructions consistent with that advice.

[26] The applicant says that prejudice to her would be profound should an extension not be granted (her application would be dismissed in the absence of conciliation or a merits hearing) whereas (it is said) there is little if any prejudice to the employer.

[27] Conversely, Uniting submit that the circumstances are not exceptional and no extension of time can or should be granted.

[28] Uniting contend that the applicant was aware of the dismissal and its reasons at the time her dismissal took effect and could have filed the application at any time within the following 21 days but did not do so until late in that period thus making no allowance for a calculation error.

[29] Uniting say that it did not contribute in any way to the delay, and should not now be prejudiced by defending a late application.

Consideration

[30] Section 394(3) of the FW Act provides:

“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.”

[31] The application can only proceed if the applicant can establish that “exceptional circumstances” exist within the meaning of section 394(3).

[32] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.²

[33] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant³. A decision whether to extend time under section 394(3) involves the exercise of a discretion⁴.

[34] I apply section 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd: ⁵

“[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.”

[35] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.

Status of the application

[36] I am well satisfied that the application is out of time and can only proceed if an extension of time is granted.

[37] The 21-day statutory period expired on 16 September 2021. That date is twenty-one calendar days after the dismissal took effect. As the dismissal took effect on 26 August 2021, the first of those twenty-one days was 27 August. Counting forward, the twenty-first of those days fell on 16 September 2021.

[38] The statutory requirement (section 394(2)(a)) is that an application “must” be made “within 21 days after the dismissal took effect” (emphasis added). What is required is lodgement “within” twenty-one days, not “after” twenty-one days or on the day after twenty-one days.

[39] Having been filed on 17 September 2021, the application is one day out of time.

[40] I now consider the factors in section 394(3).

Reason for the delay (section 394(3)(a))

[41] The reason for delay in lodging an application is a factor that must be considered.

[42] The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight⁶. 

[43] However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional⁷.

[44] The period of delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for the delay is acceptable or credible⁸.

[45] The reason advanced by Ms Arsanious is representative error.

[46] The long-standing approach adopted by the Commission and its predecessors is that representative error may be an acceptable reason for delay insofar as it may not be fair to visit the error of a representative on an applicant. However, that approach requires primary consideration to be given to the conduct of the applicant to establish whether they took appropriate steps to provide instructions and not contribute to the delay.

[47] As said by a full bench of the Commission in McConnell v A and PM Fornataro: 9

“(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.”

[48] And as stated by a separately constituted full bench: 10

“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.”

[49] Whilst it is relevant to consider whether an applicant has been blameworthy or blameless for delay caused by an error of their representative, it is not necessary to find an applicant blameless for exceptional circumstances to exist beyond establishing that the dismissed employee gave appropriate instructions to their representative in a timely fashion 11.

[50] Further, the issue is not whether the representative has an acceptable explanation for their conduct or delay, but whether the applicant has an acceptable explanation for the delay 12.

[51] In this matter, it is readily apparent that the reason for delay was representative error. That error was a miscalculation by Ms Arsanious’s solicitor who had been entrusted with the responsibility of advising on, preparing and filing an unfair dismissal application in accordance with their client’s instructions.

[52] On an overall consideration of the evidence, I am well satisfied that Ms McGillick made a calculation error at or immediately prior to the first meeting she had with Ms Arsanious on 9 September 2021.

[53] The calculation error was caused by Ms McGillick using an incorrect counting method.

[54] Is this reason for delay acceptable or credible in the context of a test of exceptional circumstances?

[55] Each matter must be determined on its own facts and on the application of proper principle.

[56] As noted, it is not the reason for the representative’s error that is the central object of consideration, but the reason for delay. This necessarily involves primary focus on the applicant’s conduct.

[57] I do not consider Ms Arsanious to have been blameworthy for the delay.

[58] Firstly, Ms Arsanious moved promptly after dismissal to obtain legal advice.

[59] Secondly, Ms Arsanious was not a party to the miscalculation. Whilst it was open to Ms Arsanious to herself perform or verify the calculation (and thereby potentially identify an error), failure to do so does not render her blameworthy. She was securing advice from a legal specialist. It was reasonable to rely upon that advice. There was simply no reason for the applicant to second-guess her solicitor on the filing date.

[60] Thirdly, Ms Arsanious provided instructions promptly after receiving written advice. Had her solicitor lodged the application when those instructions were received, the application would have been lodged within time.

[61] Fourthly, it was the solicitor’s decision, not the applicants, to wait until the final day to lodge proceedings even though applications are well able to be received by the Commission prior to the twenty-first day.

[62] In a number of decisions the Commission has refused extensions of time where an applicant or their representative has chosen to wait until the final day for lodgement and unknowingly lodged late due to making a calculation error 13. In Shaw v Australia and New Zealand Banking Group Limited it was observed:14

“…a decision to wait to do something until the last possible moment is fraught with risk. Mr Shaw had the whole of the 21-day period during which he could have made the application. He chose to wait until the last day. Mr Shaw elected to take the risk and, in doing so, he was caught out by his earlier miscalculation.”

[63] Conversely, extensions of time have been granted where miscalculation was made by a representative (not the applicant) and where a related decision to wait until the final day for filing was a risk taken by the representative alone 15.

[64] In this matter, that risk was taken by the solicitor alone, and not Ms Arsanious who did not materially contribute to the delay.

[65] Considered overall, there is a credible explanation for the delay. This weighs in favour of granting an extension of time.

Awareness of the dismissal taking effect (section 394(3)(b))

[66] Ms Arsanious was aware on 26 August 2021 that her dismissal took effect that day, and its reasons.

[67] This is a neutral consideration.

Action taken to dispute dismissal (section 394(3)(c))

[68] Though Ms Arsanious had earlier notice of possible termination via a show-cause letter and had responded in writing to the employer, there is no evidence of her taking action to contest the fairness of the employer’s decision until these proceedings were filed and served.

[69] This is a neutral consideration.

Prejudice to the employer (section 394(3)(d))

[70] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances. 16

[71] The respondent submits that it would incur prejudice by having to defend a late claim. Self-evidently, doing so would involve time and cost.

[72] The nature of this prejudice is not unique. The respondent is not a small employer where these considerations may be more pronounced.

[73] However, even were no prejudice exists, the absence would not of itself be a reason to grant an extension.¹⁷

[74] This is a neutral consideration.

Merits of the application (section 394(3)(e))

[75] Uniting submit that the application lacks merit. It claims that the dismissal was a considered decision after a prolonged period of absence and based on medical reports.

[76] Conversely, Ms Arsanious contends that she was not properly informed by the employer about her return to work rights and that the dismissal was substantially and procedurally deficient.

[77] I have not conducted a hearing on the merits. As noted, there are contested facts. It is not possible to form a view, even a provisional view, as to whether the respective cases are strong or weak.

[78] In these circumstances, this is a neutral consideration.

Fairness between persons in similar position (section 394(f))

[79] No evidence or submissions raise issues of fairness with and between other persons.

[80] In these circumstances, this is not a relevant factor.

Conclusion on extension of time

[81] Two factors weigh in the applicant’s favour - that the delay period is short (one day) and that the explanation (representative error not contributed to by the conduct of the applicant) is credible.

[82] Considering the evidence as a whole, I am satisfied the circumstances for the late filing are exceptional. It is not usual or common that a dismissed employee gives instructions within time to file proceedings in a lawful manner only to subsequently discover that their solicitor has filed late due to a counting error on the solicitor’s part compounded by a decision by the solicitor to file on the final day of a statutory deadline.

[83] I also consider it appropriate to extend time. There are no discretionary reasons to not do so. It was not unreasonable for Ms Arsanious to place her interests in the hands of her solicitor. She promptly obtained advice and provided instructions. She did not act in bad faith or materially contribute to the miscalculation or the delay.

[84] Further, in circumstances where Ms Arsanious was not blameworthy, the prejudice to her in not granting an extension outweighs the prejudice that may be incurred by Uniting in defending a late claim.

Conclusion

[85] Having regard to the factors in section 394(3) of the FW Act, the time for lodgement of application U2021/8392 is extended so as to permit the application to be heard and determined by the Commission.

[86] An order 18 to this effect is issued in conjunction with the publication of this decision.

[87] I direct the application into conciliation to be conducted by a staff conciliator.

DEPUTY PRESIDENT

Hearing details:

2021

Adelaide (on the papers)

Written submissions:

Applicant – 7 October 2021
Respondent – 8 October 2021

Printed by authority of the Commonwealth Government Printer

<PR734814>

 1   Section 397 requires the Commission to conduct a conference or hold a hearing in relation to an unfair dismissal matter if, and to the extent that, the matter involves facts the existence of which is in dispute.

2 Smith v Canning Division of General Practice [2009] AIRC 959

3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]

4 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316

5 [2011] FWAFB 975 “Nulty” at [13]; see also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithiss [2010] FWAFB 7251 at [5]

6 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [35]-[45]

7 Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288

8 Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149

 9   [2011] FWAFB 466 at [35] citing Clark v Ringwood Private Hospital (1997) 74 IR 413 and Davidson v Aboriginal and Islander Child Care Agency Print Q0784

 10   Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728 at [24]

 11   Qantas Ground Services Pty Ltd v Simon Rogers [2019] FWCFB 2759 at [17]

 12   Ibid at [16]

 13   Shaw v Australia and New Zealand Banking Group Limited [2014] FWC 3903; Harvey v Compass Group (Australia) Pty Ltd at [2021] FWC 1375 at [96]; Johnston v Wilson Security Pty Ltd [2018] FWC 6872

 14   [2014] FWC 3903 at [28] per Gostencnik DP

 15   Drelich v ALDI Stores (A Limited Partnership) [2021] FWC 4201; Beniwal and Others v Greek Orthodox Community of South Australia Inc [2021] FWC 4657; Lazarus v Queensland Rail Ltd [2020] FWC 4589

 16   Brisbane South Regional Health Authority v Taylor [1996] HCA 25

17 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 18   PR734815