Zammit v H & M Australia Pty Ltd [2016] FWC 2952 (12 May 2016) [2016] FWC 2952 FAIR WORK COMMISSION REASONS FOR DECISION Fair Work Act 2009 s.394 —Unfair dismissal Shane Zammit v H & M Australia Pty Ltd T/A H & M (U2016/5616) COMMISSIONER LEE MELBOURNE, 12 MAY 2016 Application for relief from unfair dismissal - extension of time - representative error - time extended. [1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 22 April 2016. This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. The matter was listed for Extension of Time Conference/Hearing before me on 22 April 2016. [2] The application was lodged by Mr Shane Zammit (the Applicant) against H & M Australia Pty Ltd T/A H & M (the Respondent). The application was lodged by the Applicant on 22 March 2016. It has been made clear on the evidence and it is not in dispute that the dismissal took effect on 29 February 2016. That was the date that the Applicant indicated he was terminated and that has been consistent in the materials that have been filed with the Fair Work Commission (the Commission). The application should have been lodged on 21 March 2016 and therefore the application has been lodged one day late. The matter for determination is whether I grant an extension of time to allow the application to be made one day later. [3] There was sworn evidence provided at the hearing from both the Applicant and his representative, Mr Shane Hum. The Applicant's evidence was that he attended his Solicitor's office around a week after he was terminated. Correspondence was tendered during proceedings, which was an email from the Applicant to Mr Hum dated 10 March 2016 1 referring to a meeting that he had had the preceding day. It is apparent this was the first meeting between the Applicant and Mr Hum and suggests that, in fact, he attended the Solicitor's office on 9 March 2016, being nine days after he was dismissed. The email also demonstrates that the Applicant was following up on costs and trust account details that he was expecting to receive from Mr Hum after that meeting; that is, where he was to pay the money presumably sought by Mr Hum for his services. It is not apparent to me and it was not clear on the evidence why Mr Hum had not already provided that material to the Applicant and I am not entirely clear why the Applicant had to follow up and ask for the information, but nevertheless the point is that the Applicant did follow up with his Solicitor the day after the meeting on 10 March 2016. Further correspondence dated 15 March 2016 2 demonstrates that it took what one would consider an extraordinary number of days, being five days, for Mr Hum to reply to the Applicant. The email provides the firms trust account details and rather ironically notes the strict deadlines to file materials in matters such as this, the email reads as follows: “As there is a strict deadline for these applications we will file the application to ensure that it is made in time. If any amendments need to be made then that can easily be attended to. I otherwise note the instructions of your email and will contact you if I require anything from you, but do not hesitate to call me if you have any questions.” [4] The Applicant responded to Mr Hum the very next day, which is demonstrated by correspondence dated 16 March 2016. 3 In this email Mr Zammit advises Mr Hum that he transferred the funds through to him that afternoon, complying with the request to make the payment. The Applicant also advises that he is going on a trip overseas and he will be back on 23 March 2016, being some seven days later. The Applicant advises as follows: “Accordingly, I will now leave this in your hands. I have full access to my email which I am checking several times a day should you need to make contact with me regarding this and I will await further instructions from you on the next steps once we serve these documents.” [5] Clearly, that email evidences that the Applicant was out of the country for a week, leaving the matter with his Solicitor expecting that his Solicitor would act in his instructions and appropriately file the materials. [6] Further to that, the Applicant then sent a further follow up email to Mr Hum dated 24 March 2016. Now, the evidence was that there were no other emails received in reply to the email of 16 March 2016, and so the Applicant again emailed his Solicitor on 24 March 2016 which is the day after he has presumably returned from overseas. The email provides that he wanted to touch base, and asked if Mr Hum could "… please update me on the case so far?" [7] Overall, I am satisfied on the evidence that it squarely supports a finding that the Applicant has responded quickly to requests from his Solicitor to take action. He has attended the offices of Mr Hum nine days after his dismissal and has instructed his Solicitor to take action to lodge an application for unfair dismissal in this jurisdiction. [8] Mr Hum gave evidence at the hearing about his own actions in the matter. As I have already indicated, it is evident that despite receiving instructions on 9 March 2016, Mr Hum took a further six days to send the necessary trust account information to the Applicant. Then it is apparent, having received the payment on 15 March 2016 Mr Hum then moved to lodge the application somewhere around 17 March 2016, but has on his evidence faced a problem with the Internet Explorer browser. It is not necessary that I go into any great detail about the nature of those difficulties. I am satisfied on the evidence, that for what it is worth, Mr Hum did try to lodge the application electronically at that time and experienced difficulties, but it needs to be borne in mind that this was around 17 March 2016 and the application still was not due until 21 March 2016. [9] Regrettably, the actions that Mr Hum then took did not involve taking various other steps that were available and as Ms Karabatos for the Respondent pointed out could have been taken. Instead Mr Hum chose to rely on the Australia Post ordinary post service, posting the application on Friday 19 March 2016 expecting it would arrive on 21 March 2016, being the Monday, with the two intervening weekend days. In other words, a next-day delivery in circumstances where I would have thought it was a notorious fact that Australia Post have made it pretty clear recently that they have changed their expectations as to what their delivery times are for ordinary mail. I am not sure what they are now, but they are certainly not next-day delivery, and so to put it mildly, Mr Hum, relying on Australia Post to deliver the application posted on Friday to be delivered on Monday was, at best, risky. [10] Mr Hum should have utilised some of the other options referred to by the Respondent and should have ensured that the application was received by the Commission in time. There was some reference by Mr Hum to expecting that his Secretary would have sent the application by Express Post. However, there was no suggestion from Mr Hum that he instructed his Secretary to send the application by Express Post. [11] In summary, the totality of the evidence that was provided from the Applicant as represented, reflects very badly on Mr Hum and his firm. The only reasonable conclusion on the evidence is the Applicant has, at least in respect of this application, been sorely let down by his legal representative in this matter. There was some other evidence in the proceedings, but not of any significant bearing on the determination to be made. [12] Section 394 (3) of the Act sets out the power of the Commission to allow a further period for an application to be made under subsection s.394 (1) if the Commission is satisfied there are exceptional circumstances taking into account the various factors in s.394 (3) which are as follows: (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. [13] In determining the matter, there is the consideration of what the correct interpretation is to what is meant by "exceptional circumstances" and I think both parties, certainly Ms Karabatos, have referred me to the decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 4 , which set out the term "exceptional circumstances" and what it means 5 and I agree that it is the appropriate authority for consideration of that matter. [14] It is also necessary in the context of this case, and the submissions by the Applicant's representative that the reason for the delay is squarely put as a representative error, to consider the authority on the approach to dealing with representative error as a reason for delay and the leading case on that is Clark v Ringwood Private Hospital 6 , which was referred to, this case has in turn been cited in Davidson v Aboriginal and Islander Child Care Agency 7 and further cited in McConnell v A and PM Fornataro T/A Tony's Plumbing Service . 8 [15] Relevantly, and Mr Hum took me to this, what Clark v Ringwood Private Hospital indicates is that a late lodgement of an application due to a representative error may be grounds for an extension of time. However, there is a distinction between the delay caused by the representative where the employee is blameless and other circumstances where there may have been representative error but in fact the employee, or the Applicant, has contributed to the delay. [16] It is also clear on the authorities that a representative error includes inactivity or a failure to act promptly on the part of the representative. To extend on that point and to be clear, the actions of the employee are the central consideration in deciding whether or not the explanation of representative error is acceptable. For example, in that context, if an application was delayed because the employee has left it in the hands of the representative and simply not followed up their claim, then an application might be refused. [17] However, where an employee has given clear instructions to lodge an application and the representative has failed to do so then an extension may be granted. Of course, representative error is only one of a number of factors. It is not the only factor and all the factors have to be considered properly under s.394(3)(a) - (f) of the Act, not simply one of determining whether there is representative error before the discretion is exercised to grant the extension. [18] I will now turn to a consideration of those factors, firstly, the reason for the delay. It is clear, as I have already stated that the application has been lodged one day late and it is also clear, as I have already alluded to, that late lodgement of an application due to representative error can be considered an acceptable reason for the delay, depending on the circumstances. [19] The Applicant's evidence was clear that he moved relatively quickly, by 9 March 2016, to instruct his Solicitor and had been fairly assiduous in following up with his Solicitor. Indeed, the Applicant even followed up with his Solicitor when he had not supplied information like the trust account details, as was clearly promised at the first meeting. The only time that the Applicant left the matter in the hands of his Solicitor for a period was the one week that he was overseas. However, this was a period where he had left relatively clear instructions about what he was expecting would occur and moreover, I note the fact that the day after his return from overseas he has immediately followed up with his Solicitor, inquiring on the status of his application. [20] In short, this is a case where I am satisfied that the Applicant is blameless in the delay. He seems to have done all that he could have reasonably expected to do to effect an application being made within the relevant time period. [21] The manner in which the Applicant's representative has acted in this matter has been tardy, at least, in the way that the Applicant's file has been dealt with and I am satisfied that it was the Applicant's representative's error alone or, in this case, perhaps a series of errors including apparent inactivity and failure to act promptly, which has been a factor in the delay. Overall, I am satisfied on that basis that there is an acceptable reason that has been given for the delay. [22] In terms of whether the person first became aware of the dismissal after it had taken effect, I agree with and adopt the Respondent's submission on that point, where it is stated the application clearly identifies the date upon which the Applicant was terminated and the date on which the dismissal took effect. [23] In terms of action taken by the person to dispute the dismissal, I note the submissions of Ms Karabatos that there was not any, however, the Applicant did take action to dispute the dismissal to the extent that he attended his Solicitor's office and expected action to be taken and followed that up a number of times. There are no factors or circumstances within the application which suggest that there was any doubt as to the date upon which the Applicant considers his employment to have been terminated. [24] In respect to prejudice to the employer, it is established on the authorities that generally the employer must produce evidence to demonstrate there is some prejudice in this matter. The question is what is the prejudice from a delay of one day? I am not satisfied that there is any prejudice to the employer. This is a neutral consideration. [25] With respect to the merits of the application, I also adopt the submissions of the Respondent on that point. The Respondent contends that the Applicant's employment was terminated for valid reasons relating to the Applicant's conduct following the investigation process. While adopting that, I also note that the Applicant submits that the termination was unfair and to that extent there will be contested facts and a determination necessary on the merits. I agree with the submissions of Ms Karabatos when she says in the absence of a full hearing on the merits of the application, the Commission can, at best, find the application is not without merit and this should be treated as a neutral factor in determining whether exceptional circumstances exist. [26] I will now turn to fairness as between the person and other persons in a similar position. I consider it is consistent with fairness as set out in Markos Wilson v Woolworths 9 , a decision of Senior Deputy President Richards that consideration of this factor may relate to fairness in matters of a similar kind that are either currently before the Commission or have been decided in the past. There have been a number of matters decided in the past where representative error has been held to be a relevant factor, again, depending on the circumstances of that representative error and it would be consistent with maintaining fairness between this Applicant and other persons in a similar position to have regard to that. [27] In conclusion, having regard to all of the criteria to which I am to have regard, I am satisfied in particular that the reason for the delay was entirely representative error as I have already outlined. I am satisfied that the Applicant did take action to dispute the dismissal by way of seeing and instructing his solicitor. I am not satisfied there is any prejudice to the employer arising from the fact that there was the delay of one day. [28] The merits are a neutral consideration, as I have already indicated and I am satisfied that it would be consistent with the criteria in s.394(3)(f) that the Applicant is treated consistently to the extent that this matter deals with representative error with other cases that deal with representative error. [29] Taking all of those considerations into account, I have determined that I am satisfied that there are exceptional circumstances that have satisfied me that a further period for the application should be made, as sought by the Applicant. [30] An order giving effect to this decision has previously been published in PR579442 . COMMISSIONER Appearances : S Hum for the Applicant E Karabatos for the Respondent Hearing details: 2016. Melbourne. 22 April. Final written submissions: 21 April 2016. 1 Exhibit 1, email from Mr Shane Zammit to Mr Shane Hum of Adams Maguire Sier dated 10 March 2016. 2 Exhibit 2, email from Mr Shane Hum of Adams Maguire Sier to Mr Shane Zammit dated 15 March 2016. 3 Exhibit 3, email from Mr Shane Zammit to Mr Shane Hum of Adams Maguire Sier dated 16 March 2016. 4 Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 5 [2011] FWAFB 975 [13] 6 Clark v Ringwood Private Hospital (1997) 74 IR 413 7 Davidson v Aboriginal and Islander Child Care Agency (1998) 105 IR 1 8 PM Fornataro T/A Tony's Plumbing Service (2011) 202 IR 59 [35] 9 Markos Wilson v Woolworths [2010] FWA 2480 Printed by authority of the Commonwealth Government Printer <Price code C, PR580229>