Case: Stephens v Clover Pipelines Pty Ltd [2022] FWC 3386
Commission: Fair Work Commission
Member: Deputy President Lake
Decision date: 30 December 2022
Outcome: Extension of time granted
Jurisdiction: Unfair dismissal – application lodged outside the statutory timeframe
Overview
The Fair Work Commission granted an employee an extension of time to lodge an unfair dismissal application after it was filed two days late.
The principal reason for the delay was an error by the employee’s representative, who had been engaged to prepare and lodge the application. Deputy President Lake accepted that the employee had acted promptly, relied on his representative, and provided the information and signed application in time.
The decision confirms that representative error can, in appropriate circumstances, contribute to a finding of exceptional circumstances under s.394(3) of the Fair Work Act 2009. The extension was granted, allowing the substantive unfair dismissal application to proceed. The Commission did not determine whether the dismissal itself was unfair.
Background
Mr Dave Stephens was dismissed by Clover Pipelines Pty Ltd on 17 October 2022. The termination letter stated that his employment ended immediately. The employee was also entitled to payment in lieu of notice, which was paid later.
The unfair dismissal application was lodged on 9 November 2022. It was accepted that the application was made 23 days after dismissal, two days outside the statutory 21-day period.
The employer opposed an extension of time, arguing that the dismissal took effect on 17 October 2022 and that the later payment of notice did not change that date.
The employee’s submissions
The employee, represented by Just Relations – Consultants, initially disputed the effective date of termination, relying on the employment contract and the timing of the payment in lieu of notice.
In the alternative, the employee sought an extension based on representative error.
The evidence showed that the employee contacted Just Relations on 18 October 2022, the day after dismissal. He then:
- Provided further information and documents promptly.
- Engaged the representative to lodge and conduct the unfair dismissal application.
- Returned a completed client file, including detailed information and payslips.
- Responded to requests for clarification.
- Reviewed, signed and returned the proposed Form F2 on 7 November 2022, before the 21-day deadline.
The employee expected the application to be lodged when he returned the signed form. The representative later acknowledged that the application had not been lodged within time due to an oversight.
The employee’s evidence also referred to the representative preparing the application while caring for an unwell toddler.
The employer’s position
The employer was represented by Kalus Kenny Intelex Lawyers.
It submitted that the dismissal took effect on 17 October 2022, consistent with the termination letter. The later payment of notice was attributed to payroll processing and did not alter the termination date.
The employer opposed the extension of time.
The Commission’s consideration
Section 394(3) of the Fair Work Act 2009 permits an extension only where the Commission is satisfied that exceptional circumstances exist. The Commission must consider the reason for delay, awareness of dismissal, steps taken to dispute it, prejudice to the employer, the merits of the application, and fairness between persons in comparable situations.
Deputy President Lake assessed the relevant factors as follows.
Reason for the delay
The Commission found that representative error was the primary reason for the delay.
The employee had reasonably relied on his representative to lodge the application within the statutory timeframe. The correspondence showed that he had acted promptly, followed advice and supplied the requested material.
The Commission considered the decision in Graham Jones v Holcim Australia Pty Ltd [2010] FWA 3129, where representative error had been found to constitute exceptional circumstances.
This factor weighed in favour of an extension.
Awareness of dismissal
The termination letter made clear that the dismissal was effective immediately. The employee was aware of his dismissal and had contacted a representative the following day.
This factor weighed against an extension.
Steps taken to dispute the dismissal
The employee had taken steps to commence an unfair dismissal claim from 18 October 2022, within the statutory period.
This factor weighed in favour of an extension.
Prejudice to the employer
The employer did not submit that it would suffer prejudice and provided no evidence of prejudice.
However, the Commission noted that the mere absence of prejudice was not, by itself, sufficient to justify an extension. This factor was treated as neutral.
Merits of the application
The Commission had not heard the substantive unfair dismissal case. It was therefore unable to undertake a meaningful assessment of the merits.
This factor was neutral.
Fairness between persons in like positions
The Commission considered the earlier Graham Jones v Holcim Australia Pty Ltd decision, which involved a representative lodging an application late despite the applicant acting in a timely manner.
This factor weighed in favour of an extension.
Decision
Deputy President Lake concluded that, having regard to all the relevant circumstances, exceptional circumstances existed.
The application for an extension of time was granted. Further directions were to be issued for the hearing of the substantive unfair dismissal application.
The decision did not determine whether Mr Stephens’ dismissal was unfair or whether he was entitled to a remedy.
Significance
The decision illustrates that a short delay caused by a representative’s failure to lodge an application on time may justify an extension, particularly where the employee:
- Contacted the representative promptly after dismissal.
- Relied on the representative to prepare and lodge the claim.
- Supplied information and documents without undue delay.
- Returned the signed application before the statutory deadline.
However, representative error does not automatically establish exceptional circumstances. The Commission must consider all the statutory factors and the particular evidence in each case.
For employees and representatives, the decision also highlights the importance of monitoring the 21-day deadline independently. A client’s prompt cooperation does not remove the risk of a late filing.
Representatives
- Applicant: Just Relations – Consultants; Mr Nicholas Dircks.
- Respondent: Kalus Kenny Intelex Lawyers.
Categories
- Unfair dismissal
- Extension of time
- Representative error
- Exceptional circumstances
- Fair Work Commission procedure
Tags
unfair dismissal extension of time 21-day time limit representative error exceptional circumstances s394(3) Just Relations Deputy President Lake
Disclaimer: This article is a general summary of a Fair Work Commission decision and is not legal advice. Just Relations provides employee representation and is not a law firm. Its representatives are not solicitors. The outcome of any matter depends on its particular facts and circumstances.