Charles v Bendigo & District Aboriginal Cooperative [2016] FWC 1116 (19 February 2016) [2016] FWC 1116 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Alana Charles v Bendigo & District Aboriginal Cooperative (U2015/5475) DEPUTY PRESIDENT KOVACIC MELBOURNE, 19 FEBRUARY 2016 Application for relief from unfair dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application – application dismissed. [1] Ms Alana Charles (the Applicant) made an application on 19 May 2015 under s.394 of the Fair Work Act 2009 (the Act) alleging that her dismissal on 27 April 2015 was harsh, unjust and unreasonable. On 23 June 2015, Bendigo & District Aboriginal Co-operative (BDAC - the Respondent) objected to the application on the grounds that it had been made outside the 21 day timeframe specified in s.394(2) of the Act. The application was lodged one day outside the 21 day statutory timeframe. [2] Directions were issued by the Fair Work Commission (the Commission) on 28 May 2015 setting out the timetable for the filing of submissions and any evidentiary material to be relied on by the parties at the jurisdictional hearing on 3 July 2015. [3] At the hearing Ms Charles was represented by Mr Giles Bray of the Australian Municipal, Administrative, Clerical and Services Union (ASU). Ms Kaitlyn Gulle appeared with permission for BDAC. [4] For the reasons outlined below I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, the application cannot proceed and is therefore dismissed. Background [5] Ms Charles commenced employment with BDAC on 20 November 2006. Ms Charles commenced a Performance Improvement Process (PIP) on 8 October 2014 and was subsequently dismissed on 27 April 2015. The termination letter states: “On the 8th of October 2014, you commenced a Performance Improvement Process with your General Manager and Program Manager. Since that date you have had regular reviews of your performance and have been provided with the support required for you to make the required performance improvements. Your performance has not improved since the 8 th October 2014 to a level that is required to undertake your position and as such you employment with BDAC is now being terminated. Your employment will cease immediately. Based on your length of service, your notice period is four (4) weeks.” 1 [6] Shortly after Ms Charles had been dismissed, Ms Wark, an Organiser with the ASU, advised her of her options regarding making an unfair dismissal application. Ms Charles advised Ms Wark that she wanted the ASU to undertake the process on her behalf, with Ms Wark requesting that Ms Charles forward her any documents additional to the correspondence already provided that might assist with her application. Ms Wark reiterated that request in two separate emails on 4 May 2015 and a further email on 7 May 2015. Following the latter email, Ms Charles emailed Mr Baydon Widdicombe, BDAC’s Workplace Operations Project Manager, asking for certain documents. Mr Widdicombe forwarded the requested documents to Ms Charles later that day, with Ms Charles subsequently forwarding the documents to Ms Wark on 11 May 2015. [7] Early on 18 May 2015 Ms Wark emailed Ms Charles a draft unfair dismissal application and later that day phoned Ms Charles to discuss the application. Ms Charles confirmed that she was happy for the application to proceed. Ms Wark subsequently forwarded the draft application to the ASU’s Industrial Bargaining Unit (IBU) for checking and lodgement shortly after 6.00 pm on 18 May 2015. Mr Bray provided comments early the following afternoon, with the application lodged mid-afternoon on 19 May 2015. [8] As noted above, Ms Charles’ application was lodged one day outside the 21 day statutory timeframe. The Relevant Legislation Section 394 of the Act provides: “394 Application for Unfair Dismissal Remedy 394(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy. 394(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). 394(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 first person 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.” Whether to allow a further period for the application to be made under s.394(2) [9] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately. (a) The reason for the delay [10] Ms Charles submitted that representative error was the reason for the delay in lodging her application, contending that her representative, the ASU, failed to act promptly to file her application. [11] In her witness statement 2 Ms Charles set out the chronology of events leading up to the lodging of her unfair dismissal application in similar terms to those set out at paragraphs [6] and [7] above. In addition, Ms Charles deposed that Ms Wark had: asked her on 27 April 2015 whether she wanted Ms Wark to prepare an unfair dismissal application the following week as she was travelling for the rest of that week; and contacted her on either 19 or 20 May 2015 to advise that her application had been lodged a day late as she had miscalculated when the 21 day period expired. [12] Ms Charles’ oral evidence included that she was admitted to hospital on 7 May 2015, was diagnosed as a viral infection, but discharged late that evening. Ms Charles further attested that between 11 and 18 May 2015 she was at home recuperating and that on or around 13 May 2015 she contacted Ms Terri Badke, her ASU workplace delegate, asking her to find out where things had gotten to regarding her unfair dismissal application. Ms Charles stated that Ms Badke subsequently emailed Ms Wark but did not receive a response. [13] As Ms Charles had done in her witness statement, Ms Wark also set out in her witness statement 3 the chronology of events leading up to the lodging of Ms Charles’ unfair dismissal application. Beyond that, Ms Wark also deposed that: at some point during the week commencing 11 May 2015 she counted the days from the date of Ms Charles’ termination and made an error in calculating when the 21 day statutory timeframe expired, adding that she had calculated that she had until 19 May 2015 to lodge Ms Charles’ unfair dismissal application; she was very busy during the week commencing 11 May 2015, with little time spent in the office; and as a result, she did not get an opportunity to spend much time working on Ms Charles’ application. [14] Key aspects of Ms Wark’s oral evidence were that: it was not ideal that she left it until last day of the 21 day timeframe to provide Ms Charles with a draft unfair dismissal application; she had booked in a time prior to 18 May 2015 to make sure that she would discuss the application with Ms Charles; she had asked Ms Charles to provide documents on four occasions, with the first occasion being at their meeting of 27 April 2015; she was not aware that the documents which Ms Charles provided to her on 11 May 2015 had been received by Ms Charles on 7 May 2015; she had made an honest mistake in miscalculating when the 21 day period expired, adding that the error was embarrassing; she could not recall receiving an email from Ms Badke on or around 13 May 2015 asking where things had gotten to regarding Ms Charles’ unfair dismissal application; and there was no evidence of contact between her and Ms Charles during the period 11 to 18 May 2015. [15] BDAC submitted that it could not be said that Ms Charles was blameless in the late lodgement of her application. In particular, BDAC highlighted that Ms Wark had asked Ms Charles to provide additional documentation on 27 April 2015 but it was not until 7 May 2015 that Ms Charles had sent an email to BDAC requesting that it provide those documents. Further, while BDAC had forwarded the requested documents to Ms Charles on 7 May 2015, Ms Charles did not provide those documents to Ms Wark until 11 May 2015. [16] BDAC also contended that Ms Charles took no further steps to ensure that her application was lodged, adding that Ms Charles was not reasonably active in pursuing her claim and that her conduct contributed to the delay. BDAC submitted that the delay could therefore not be entirely attributed to Ms Charles’ representative and that Ms Charles should have taken steps between 11 and 18 May to follow-up her application. Against that background, BDAC submitted that the reason for the delay relied upon by Ms Charles does not give rise to exceptional circumstances. [17] Representative error is cited as the reason for the delay in making the application. As noted by a Full Bench in Robinson v Interstate Transport Pty Ltd (Robinson’s Case) 4 the approach to representative error as an explanation for late lodgement was first set out in Clark v Ringwood Private Hospital (Clark) 5 in the context of a discretion to extend under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act) followed by a Full Bench decision in Davidson v Aboriginal & Islander Child Care Agency (Davidson) . 6 [18] The approach in Clark was summarised in Davidson as follows: “In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay: (i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged. (ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant. (iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged . (iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.” 7 ( Emphasis added) [19] An analysis of the material before the Commission indicates that: Ms Charles was made aware of the 21 day statutory timeframe in her discussions with Ms Wark immediately following her dismissal on 27 April 2015; Ms Wark asked Ms Charles on four separate occasions over the period 27 April to 7 May 2014 to provide any additional documentation to assist in the preparation of her application; Ms Charles did not provide the material until 11 May 2014, despite having been provided with the documentation by BDAC on 7 May 2015; while Ms Charles was hospitalised on 7 May 2015 this did not preclude her from emailing Mr Widdicombe on that day to request the relevant documents; Ms Wark received the relevant documents from Ms Charles a week prior to 21 day period expiring; at no stage during the 21 day statutory timeframe did Ms Charles initiate contact with Ms Wark regarding her application; Ms Wark’s oral evidence does not corroborate Ms Charles’ claim that she asked Ms Badke to inquire about the status of her application on or around 13 May 2015; and Ms Wark miscalculated when the 21 day period expired. [20] In short, it appears that after indicating that she wished to dispute her dismissal, Ms Charles basically left it up to the ASU to prepare and lodge her application, was tardy in providing the requested documentation to her representative to assist in the preparation of her application and at no stage followed up regarding her application. While Ms Charles attested that she asked Ms Badke on or around 13 May 2015 to inquire as to progress with her application, as noted above this was not corroborated by Ms Wark’s oral evidence. Further, Ms Charles did not provide any documentary evidence to substantiate he evidence. I prefer Ms Wark’s evidence on this issue. [21] Drawing on the above and the language in Clark , there is no evidence before the Commission indicating that Ms Charles made any effort to ensure her application was lodged. This does not point to the existence of exceptional circumstances. (b) Whether the first person became aware of the dismissal after it had taken effect [22] It is not disputed that Ms Charles became aware of her dismissal on the day she was dismissed. [23] This does not point to the existence of any exceptional circumstances. (c) Any action taken by the person to dispute the dismissal [24] Ms Charles contended that she gave unambiguous instructions to the ASU on 27 April 2015 to file her unfair dismissal application and that she took all necessary steps to ensure that an application was lodged by her representative within the 21 day period. [25] BDAC disputed that Ms Charles took all necessary steps to ensure that her application was lodged by her representative within the 21 day period. BDAC also highlighted two emails which Ms Charles sent Mr Widdicombe on 30 April 2015 in which she acknowledged that she knew her dismissal was only a matter of time and that she accepted it. Specifically, Ms Charles stated in the first of those emails that “I knew it was coming it was only a matter of time. I wish things were different and I was still there…” and in her subsequent that “… It is what it is and I fine with it I knew it was coming :)”. [26] Based on the material before the Commission it does not appear that Ms Charles took any action to dispute her dismissal prior to lodging her unfair dismissal application. This does not point to the existence of exceptional circumstances. (d) Prejudice to the employer (including prejudice caused by the delay) [27] Ms Charles submitted that given the very short extra period for which an extension is sought that there would be no prejudice to BDAC if the further period is allowed. [28] BDAC acknowledged that it would not be prejudiced if the further period was allowed but added that the mere absence of prejudice cannot be taken to represent a basis for an extension of time. [29] I consider the issue of prejudice to the employer to be a neutral consideration. (e) The merits of the application [30] Ms Charles submitted that: there was no valid reason for her dismissal; she was not notified of the reason for her dismissal; she had not been warned about the alleged unsatisfactory performance or provided with sufficient detail to improve on the alleged unsatisfactory performance; and she had more than eight years of continuous service with BDAC. [31] BDAC contended that: there was a valid reason for Ms Charles’ dismissal, being her conduct and poor performance; Ms Charles had been given multiple warnings regarding her conduct and performance and sufficient opportunity to demonstrate an improvement; Ms Charles was notified of her dismissal and given an opportunity to respond; and it went to great lengths to ensure that the PIP and the dismissal were carried out in accordance with the principles of natural justice and fairness. [32] The first observation I would make is that the termination letter makes no reference to Ms Charles’ conduct as a reason for her dismissal. As can be seen from the above summary of the parties’ submissions, a number of key aspects which go to the merits of the application are disputed. Further, little detail was provided in the parties’ submissions regarding the PIP, with some aspects of the PIP disputed. For instance, while Ms Charles acknowledged that she was provided with support by BDAC she attested that she did not find that support to be supportive for her. In the absence of a more substantive hearing of the evidence I am unable to form a considered view as to the merits of the application. [33] As such, I consider this factor to be a neutral consideration. (f) Fairness as between the person and other persons in a similar position [34] Ms Charles submitted that no issues arise with respect to fairness as between her and other persons seeking an extension to the period in which an unfair dismissal application can be made for reasons other than representative error. [35] BDAC submitted that Ms Charles was not blameless for the late lodgement of her application and that it would therefore be unfair to other persons in similar circumstances who have not been granted a further period to allow Ms Charles a further period for the making of her application. [36] As noted above, the reason for the delay relied upon by Ms Charles does not point to the existence of exceptional circumstances. Against that background, I consider that this consideration would be enlivened were an extension of time granted in this case. This factor therefore does not favour Ms Charles. Conclusion [37] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 8 (Nulty) in the following way: “[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.” [38] Having considered all of the factors set out in s.394(3), and drawing on both Nulty and Clark , I find that there are no exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy. Accordingly, the application cannot proceed and is therefore dismissed. An order to that effect will be issued with this decision. Appearances : G. Bray for the Applicant . K. Gulle with B. Widdicombe for the Bendigo & District Aboriginal Co-operative. Hearing details: Melbourne. 2015: July 3. 1 Form F2 – Unfair Dismissal Application 2 Exhibit B1 3 Exhibit B2 4 [2011] FWAFB 2728 ; (2011) 211 IR 347 5 (1997) 74 IR 413 6 (1998) 105 IR 1 7 Ibid 8 [2011] FWAFB 975 ; (2011) 203 IR 1 Printed by authority of the Commonwealth Government Printer <Price code C, PR577233>