Johnston v Roofmax ATF the Burns Roofing Trading Trust [2016] FWC 2470 (19 April 2016) [2016] FWC 2470 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.365 —General protections Peter Johnston v Roofmax ATF the Burns Roofing Trading Trust T/A Roofmax Pty Ltd (C2015/7299) DEPUTY PRESIDENT KOVACIC CANBERRA, 19 APRIL 2016 Application to deal with contraventions involving dismissal – extension of time – exceptional circumstances warranting allowing a further period for the making of an application – period for making the application extended to 12 November 2015. [1] Peter Johnston (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 12 November 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Roofmax ATF the Burns Roofing Trading Trust T/A Roofmax Pty Ltd (Roofmax – the Respondent) on 21 October 2015 in contravention of the general protections provisions in the Act. [2] On 13 November 2015 the Commission wrote to Mr Johnston indicating that his application appeared to have been made outside the 21 day timeframe specified in s.366(1)(a) of the Act. The application was made one day outside the 21 day statutory timeframe. The Commission subsequently issued Directions on 9 December 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. [3] Mr Johnston and Ms Elizabeth Dooley, an Industrial Officer with the Construction, Forestry, Mining and Energy Union (CFMEU) and Mr Johnston’s representative, both filed affidavits on the extension of time issue. [4] On 23 December 2015, Roofmax advised the Commission it did not take any position in relation to whether Mr Johnston’s application was made within the 21 day timeframe and that it did not oppose an order allowing Mr Johnston further time for lodgement of the application. [5] Mr Johnston’s application had been listed for a telephone hearing on 28 January 2016. However that hearing date was vacated on 5 January 2016 following confirmation from the parties that they were both happy for the Commission to determine the extension of time issue on the papers. [6] For the reasons set out, below I have concluded that I am satisfied that there were exceptional circumstances warranting an extension of time and extend the timeframe for lodging the application to 12 November 2015. Background [7] Mr Johnston commenced employment with Roofmax on 11 February 2008 and was verbally dismissed on 21 October 2015 for misconduct. The termination letter sent to Mr Johnston on 22 October 2015 reads as follows: “Dear Peter Re: Termination of employment We refer to our meeting yesterday, where we discussed your conduct and ongoing employment with Roofmax Pty Ltd (Roofmax). During the course of your employment you have been involved in a number of altercations on-site. During these altercations you have engaged in aggressive and abusive saviour. These have caused considerable damage to Roofmax’s business and reputation. The most recent of these involved Roofmax nearly losing a contract, and being in a position where it could not place you back at the site. Having regard to your responses in our meeting, we do not believe that it is likely that your [ sic ] acknowledge these concerns, nor that the situation is likely to change. We have consider [ sic ] the available work, and we are unable to reasonably accommodate you at an alternative site. As a result, we are left with no option but to terminate your employment. Taking into account relevant circumstances, and in order to provide you with additional time to find work, we have decided to pay you out in lieu of notice. Your employment will end effective 21 October 2015. You will be paid all your due entitlements once all Roofmax property has been returned.” 1 [8] As noted above, Mr Johnston’s general protections application was received by the Commission on 12 November 2015, one day outside the 21-day statutory timeframe for lodgement specified in s.366(1)(a) of the Act. In his application, Mr Johnston contended that he was dismissed in contravention of s.340 of the Act which deals with protection concerning the exercise or non-exercise of a workplace right. The Relevant Legislation [9] Section 366 of the Act provides: “366 Time for application 366(1) An application under section 365 must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (2). 366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) any action taken by the person to dispute the dismissal; and (c) prejudice to the employer (including prejudice caused by the delay); and (d) the merits of the application; and (e) fairness as between the person and other persons in a like position.” Whether to allow a further period for the application to be made [10] 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.366(2) above. I will deal with each of those matters separately. As noted above, Roofmax advised the Commission on 23 December 2015 that it did not take any position in relation to whether Mr Johnston’s application was made within 21 days of his dismissal. Accordingly, in the absence of any submissions by Roofmax, in considering the matters set out in s.366(2) of the Act reference will only be made to Mr Johnston’s submissions and evidentiary material. (a) The reason for the delay [11] Mr Johnston cited representative error as the reason for the delay in lodging his application. More specifically, Mr Johnston submitted that: on 27 October 2015 he gave clear instructions to Ms Dooley to file a claim with the Commission to dispute the termination of his employment; Ms Dooley made an error when calculating the 21 day timeframe to lodge his application; and Ms Dooley contacted Mr Johnson on 12 November 2015 and received instructions to file a general protections application, which she did later that day. [12] In short, Mr Johnson submitted that he was blameless in respect of the delay in lodging his application. [13] In his affidavit, Mr Johnston attested that he met with Ms Dooley at the CFMEU’s office in Adelaide on 27 October 2015 and that Ms Dooley told him at that meeting that “she would file an unfair dismissal claim for me in the Fair Work Commission.” Mr Johnston further deposed that on 12 November 2015 Ms Dooley telephoned him and advised that after further consideration she considered a general protections application more appropriate, adding that he was surprised that Ms Dooley had not yet filed his application but he agreed with it being a general protections application. [14] Ms Dooley deposed in her affidavit that on 27 October 2015 she undertook to file an unfair dismissal application on Mr Johnston’s behalf and that she assured him that he need not do anything further for the time being as she would take responsibility for ensuring that the application was lodged within time. Ms Dooley further deposed that on or around 27 October 2015 she erroneously believed that 12 November 2015 was when the 21 day statutory timeframe expired. [15] As noted by a Full Bench in Robinson v Interstate Transport Pty Ltd 2 (Robinson) the approach to representative error as an explanation for late lodgement was first set out in Clark v Ringwood Private Hospital (Clark) 3 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) . 4 [16] 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 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 .” 5 (Underlining added) [17] The material before the Commission indicates that: on 27 October 2015 Mr Johnson instructed Ms Dooley to lodge an unfair dismissal application on his behalf; Ms Dooley incorrectly calculated 12 November 2015 as the date when the 21 day statutory timeframe for lodging an application expired; on 12 November 2015 Ms Dooley contacted Mr Johnston and obtained instructions to file a general protections application as opposed to an unfair dismissal application; and Mr Johnston’s general protections application was lodged by Ms Dooley later that day. [18] Against that background and drawing on the language in Clark , I am satisfied that Mr Johnson gave clear instructions to Ms Dooley on 27 October 2015 to file an application on his behalf application and that through no fault of his own Ms Dooley failed to do so within the 21 day timeframe. This points to the existence of exceptional circumstances. (b) Any action taken by the person to dispute the dismissal [19] Mr Johnston submitted that on 27 October 2015 he instructed Ms Dooley to lodge an unfair dismissal application on his behalf. [20] While I note Mr Johnston’s submission in this regard, there is no material before the Commission that indicates that Mr Johnston took any steps to dispute his dismissal directly with Roofmax prior to lodging his general protections application. This does not point to the existence of exceptional circumstances. (c) Prejudice to the employer (including prejudice caused by the delay) [21] Mr Johnston contended that Roofmax would not be prejudiced were an extension of time granted in this case, other than the usual prejudice associated with being required to defend an application. [22] As previously mentioned, Roofmax advised the Commission on 23 December 2015 that that it did not oppose an order allowing Mr Johnston further time for lodgement of the application. While it could be inferred from that advice that Roofmax would not be prejudiced was an extension of time granted, I note that that the absence of prejudice is not a sufficient basis to grant an extension of time 6 . Against that background, I consider the issue of prejudice to be a neutral consideration. (d) The merits of the application [23] Mr Johnston submitted that his application has significant substantial merit. [24] In the absence of any submissions from Roofmax, I am unable to form a considered view as to the merits of Mr Johnston’s application. I will therefore consider this factor to be a neutral consideration. (e) Fairness as between the person and other persons in a like position [25] Mr Johnston relied on the decision in Robinson , among others, as support for the proposition that the Commission can be satisfied that exceptional circumstances exist where a blameless applicant has suffered representative error in the late lodgement of an application. [26] In the absence of any submissions from Roofmax, I again consider this factor to be a neutral consideration. Conclusion [27] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 7 (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.” [28] Having considered all of the factors set out in s.366(2) and drawing on Nulty , I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). [29] The timeframe for lodging the application is extended to 12 November 2015. An order to that effect will be issued with this decision. Mr Johnston’s application will now be listed for a conference aimed at resolving the dispute. 1 Attachment to Form F8 – General Protections Application Involving Dismissal 2 [2011] FWAFB 2728 ; (2011) 211 IR 347 3 (1997) 74 IR 413 4 (1998) 105 IR 1 5 Ibid 6 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300 7 [2011] FWAFB 975 ; (2011) 203 IR 1 Printed by authority of the Commonwealth Government Printer <Price code C, PR579225>