1 Fair Work Act 2009 s 365—General protections Melvin Rowe v National Pump and Energy Pty Ltd (C2024/4360) COMMISSIONER LIM PERTH, 7 AUGUST 2024 Application to deal with contraventions involving dismissal – application out of time – representative error – exceptional circumstances – extension granted. 1. What is this decision about? [1] This matter involves National Pump and Energy Pty Ltd’s (NPE) dismissal of Mr Melvin Rowe. Mr Rowe says that his dismissal breaches the general protections regime of the Fair Work Act 2009. He has applied under s 365 of the Act for the Fair Work Commission to deal with his dismissal. However, Mr Rowe’s application was not filed with the Commission within 21 days of his dismissal as required under s 366(1)(a) of the Act. [2] Mr Rowe’s employment ended due to redundancy. NPE notified him of this on Wednesday 1 May 2024. The redundancy took effect on Friday 3 May 2024. The last day for filing his application was Friday 24 May 2024. Mr Rowe filed his application on Wednesday 26 June 2024, 33 days late. Mr Rowe says that his application is late due to his legal representative’s error and that there are exceptional circumstances that justify extending the period for him to file his application. [3] I conducted a hearing of the matter on Monday 5 August 2024. I granted leave to Ms R Kumar of counsel to represent Mr Rowe. NPE was represented by in-house counsel, Ms A Sumer. Ms Victoria-Jane Otavski (Partner, BlackBay Lawyers Pty Ltd) and Ms Julie Mehrdawi (Associate, BlackBay Lawyers Pty Ltd) gave evidence for Mr Rowe. NPE relied on an unchallenged affidavit from Ms Melissa Synen (NPE Human Resources Manager). [4] Having considered the evidence of the parties I find that the delay in filing can be solely attributable to representative error. I am satisfied that there are exceptional circumstances that justify an extension of time. [5] The detailed reasons for my decision follow. 2. Should an extension of time be granted? [2024] FWC 2103 DECISION [2024] FWC 2103 2 [6] The Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances.1 [7] It is well established that: • Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon.2 • The circumstances themselves do not need to be unique not unprecedented, nor even very rare.3 • Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.4 [8] In determining whether there are exceptional circumstances, I must consider the criteria in s 366(2) of the Act. I set out my consideration below. 3.1 Reason for the delay [9] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.5 [10] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.6 [11] The Full Bench of the Commission considered representative error in the context of an extension of time application in Robinson v Interstate Transport Pty Ltd,7 where they stated at [25] that representative error may be a sufficient reason to extend the time for an application. However, a distinction must be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless, and delay caused by the applicant’s conduct; the conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for any filing delay. [12] In Mr Rowe’s case, the delay is 33 days. [13] Ms Otavski’s and Ms Mehrdawi’s affidavit evidence regarding Mr Rowe’s engagement of BlackBay Lawyers (BBL) can be summarised as follows: (a) Mr Rowe met with Ms Mehrdawi on Thursday 9 May 2024, six days after he was dismissed. (b) Ms Mehrdawi overlooked the fact that Mr Rowe’s notice was paid out. She formed the mistaken view that his dismissal would take effect on Friday 7 June 2024 and that the final date for filing an application with the Fair Work Commission was Friday 28 June 2024. [2024] FWC 2103 3 (c) Ms Mehrdawi diarised this date and advised Mr Rowe of these dates. (d) On Sunday 12 May 2024, Mr Rowe instructed BBL to proceed with writing to NPE to try and resolve his claim with NPE. If resolution was not possible, BBL was to prepare and file an application with the Fair Work Commission on his behalf. (e) On Monday 13 May 2024, Mr Rowe formally engaged BlackBay Lawyers to act on his behalf. (f) Between Thursday 9 May 2024 and Thursday 20 June 2024, Mr Rowe communicated with Ms Mehrdawi on about 47 occasions by email to provide instructions regarding the preparation of his application and correspondence to NPE. Mr Rowe repeatedly asked for updates on the progression of his matter [14] On Monday 17 June 2024, BBL wrote to NPE to put them on notice of Mr Rowe’s allegations and claim. On Friday 21 June 2024, NPE replied with: “Dear Colleagues Re: Termination of Employment of Melvin Rowe We refer to your letters dated 17 June 2024 and note that you act on behalf of Melvin Rowe. We advise that your client was given written notice on the 1st of May 2024, that his position would be terminated by way of redundancy with effect from the 3rd of May 2024. We further advise that your client was paid out his notice period of five (5) weeks in lieu of working, and this was expressly drawn to your client’s attention. We therefore note that having regard to the last day worked by your client and the date his employment contract came to an end, he is out of time to make an application to the Fair Work Commission, and we are not aware of any exceptional circumstances that would entitle your client to an extension of time. We dispute the allegation that your client’s termination was not a genuine redundancy and in the event an application is lodged with the Fair Work Commission, we hereby give you notice that we intend to lodge an objection on a jurisdictional basis. Yours sincerely” [15] Ms Mehrdawi’s evidence is that when she received this letter, she realised that she had made a mistake in calculating the 21-day timeframe for filing Mr Rowe’s general protections application. [16] On Friday 21 June 2024, after receiving NPE’s letter and communicating with Ms Otavski, Ms Mehrdawi commenced drafting Mr Rowe’s general protections application. The application was filed on Wednesday 26 June 2024, noting that 22-23 June 2024 was a weekend. [2024] FWC 2103 4 [17] NPE cross-examined Ms Otavski and Ms Mehrdawi. The cross-examination was focused on whether Mr Rowe had given explicit instructions to file a general protections claim or an unfair dismissal application; at what point Mr Rowe gave those instructions; and what documentation Ms Mehrdawi had in her possession that pointed to Mr Rowe’s employment ending on Friday 3 May 2024. [18] I find that the cross-examination does not disturb Ms Otavski and Ms Mehrdawi’s evidence that Mr Rowe engaged BBL to act on his behalf and gave instructions to pursue a claim within 21-days of his dismissal. It does not matter whether Mr Rowe gave instructions to file an unfair dismissal application or general protections claim as they both have the same 21- day deadline for filing. Similarly, whether Ms Mehrdawi should have realised her error earlier does not take away from the fact that Mr Rowe took steps before the 21-day deadline. [19] NPE submits that Mr Rowe did not give evidence to corroborate what actions he took. I find that Ms Otavski’s evidence regarding Mr Rowe’s emails credible and sufficient to explain Mr Rowe’s actions. [20] NPE also submits that Mr Rowe was aware of the end date of his employment and that he was paid in lieu of notice. NPE says that Mr Rowe should have known or queried the timeframe for lodging his application when Ms Mehrdawi told him he had until Friday 28 June 2024 to file an application, and that ignorance of the timeframe for lodgement is not an exceptional circumstance. [21] As a layperson, it is not unusual that Mr Rowe would take Ms Mehrdawi’s advice on the deadline for filing. The point of engaging lawyers is so that they can give you legal advice that you can rely on. It is not Mr Rowe’s fault that Ms Mehrdawi gave him incorrect advice on whether his notice being paid out affected the effective date of his dismissal. [22] Based on the evidence, I am satisfied that Mr Rowe was in frequent and regular communication with BBL to file an application in the Commission, both before and after the 21-day deadline. I am further satisfied that the whole reason for the delay in filing is representative error. I find that there is satisfactory reason for the delay. This is a factor that weighs in favour of a finding of exceptional circumstances. 3.2 Action taken to dispute the dismissal [23] Mr Rowe acted within the 21-day timeframe to engage a legal representative and give instructions. I find that Mr Rowe took steps to dispute his dismissal. This is a factor that weighs in favour of a finding of exceptional circumstances. 3.3 Prejudice to the employer (including prejudice caused by the delay) [24] NPE accepts that there is no significant prejudice to them. I agree. I find that this is a factor that is neutral. 3.4 Merits of the application [2024] FWC 2103 5 [25] The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.8 Further, the primary consideration is whether Mr Rowe has an arguable case.9 [26] Mr Rowe has filed a comprehensive Form F8 where he alleges that by dismissing him, NPE has breached ss 340 and 351 of the Act. I do not intend to repeat the particulars of Mr Rowe’s allegations. NPE says that Mr Rowe’s dismissal was a case of genuine redundancy and was not because of a prohibited reason. [27] In cases like this where there is not a full examination of the substantial merits, it is appropriate to assess any limited material through the prism of viewing an applicant’s case at its most favourable.10 [28] I find that given the limited evidence provided by the parties, I am unable to properly assess the merits of Mr Rowe’s matter. I find that this is a neutral factor in assessing whether there are exceptional circumstances. 3.5 Fairness as between Mr Rowe and other persons in a similar position [29] Mr Rowe submits that a grant of an extension of time will place him in a like position with other applicants who have been granted extensions of time due to representative error. [30] NPE submits that Mr Rowe has not provided sufficiently detailed evidence that would warrant a finding of exceptional circumstances. Therefore, it would be unfair to grant Mr Rowe an extension of time as it would place Mr Rowe in a better position than other applicants who have been refused an extension of time in circumstances similar to this matter. NPE did not provide particulars of any cases to support this point. [31] Each case must turn on its own facts. I find that this is a neutral consideration. 4. Conclusion – there are exceptional circumstances [32] Having considered all the circumstances of this matter and the factors in s 366(2), I am satisfied that there are exceptional circumstances due to the reason for the delay. The reason for the delay is compelling and justifies an extension of time for filing. [33] Accordingly, I order that the time for Mr Rowe to make his application to the Fair Work Commission under s 365 of the Act be extended to Wednesday 26 June 2024. The matter will now be listed for a conference. [2024] FWC 2103 6 COMMISSIONER Appearances: R Kumar of Counsel for the Applicant. A Sumer for the Respondent. Hearing details: 2024. Perth, by Video using Microsoft Teams: 5 August. Printed by authority of the Commonwealth Government Printer <PR778005> 1 Fair Work Act 2009 (Cth), s 366(1) and (2). 2 Nulty v Blue Star Group Ltd [2011] FWAFB 975 at [13]. 3 Ibid. 4 Ibid. 5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]. 6 Ibid at [40]. 7 (2011) 211 IR 347; [2011] FWAFB 2728. 8 Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at [14]. 9 See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34]. 10 Ivan Cowen v Renascent Regional Pty Ltd [2021] FWCFB 2606 at [42].