Mawith v Startek Australia Pty Ltd [2023] FWC 2931

Representative error – one-day extension of time granted

Commission: Fair Work Commission
Member: Commissioner Yilmaz
Date: 16 November 2023
Outcome: Extension of time granted under s.394(3) of the Fair Work Act 2009.

Overview

The Fair Work Commission granted an employee an extension of time to lodge an unfair dismissal application after finding that the application was lodged one day late because of an error by her representative.

The employee had contacted Just Relations within the statutory 21-day period and provided the necessary information before the deadline. However, her representative did not see her email until after the deadline had expired.

Commissioner Yilmaz accepted that the employee had given clear instructions to proceed and was entitled to rely on her representative to act on those instructions.

Background

The employee worked as a customer contact officer for Startek Australia Pty Ltd, providing student services for Victoria University.

She commenced employment in January 2023 as a part-time employee and converted to casual employment in July 2023.

Her employment was terminated on 28 August 2023. Startek advised that reduced call volumes meant her services were no longer required.

The employee initially believed she had been dismissed on 25 August. The application was subsequently confirmed to be only one day outside the statutory time limit.

Representative error

The employee contacted Just Relations on 8 September 2023, when there was still time to lodge an application.

Following discussions with her representative, she provided further information by email at 6.49 pm on Friday 15 September 2023. This was before the statutory deadline.

Her representative did not check or see the email until Tuesday 19 September, by which time the deadline had expired. The application was lodged promptly after the email was discovered.

Startek opposed the extension, arguing that an experienced representative’s failure to lodge the application in time did not constitute exceptional circumstances.

The Commission found that the employee’s email on 15 September was a clear instruction to proceed. The employee had not caused or contributed to the representative’s failure to check the email and lodge the application.

At paragraph [25], Commissioner Yilmaz confirmed the general principle that an applicant who gives clear and timely instructions to a representative is generally entitled to rely on that representative to carry them out.

The Commissioner concluded that the one-day delay was entirely the fault of the representative and that the employee was blameless.

Medical circumstances

The employee also relied on depression, anxiety and other medical circumstances to explain why she had taken a week to provide the requested information.

The Commission was not satisfied that the medical evidence established a connection between her condition and the delay. The medical reports largely related to an earlier episode and did not provide contemporary evidence explaining her inability to respond at the relevant time.

The decision emphasises that distress associated with dismissal, without supporting evidence explaining the delay, will not ordinarily establish exceptional circumstances.

The statutory considerations

The Commission considered each of the factors in s.394(3):

Reason for delay: Representative error weighed in favour of an extension.
Awareness of dismissal: The employee knew she had been dismissed. Confusion about the date did not cause the delay. Neutral.
Action taken to dispute dismissal: The employee contacted Just Relations within a reasonable period. Neutral.
Prejudice to employer: No prejudice was identified. Neutral.
Merits: The employee raised arguable issues concerning the reason for dismissal and procedural fairness. This weighed in favour of an extension.
Fairness between persons in similar positions: No relevant circumstances were identified. Neutral.

Decision

The Commission was satisfied that exceptional circumstances existed and granted an extension of one day.

The two considerations weighing in favour were:

The delay resulted entirely from representative error after the employee had provided instructions within time.
The unfair dismissal application raised an arguable case concerning the reason for dismissal and procedural fairness.

The substantive unfair dismissal application was to be relisted for conference.

Significance

The decision illustrates that representative error can justify an extension of time where an employee has provided clear instructions within the statutory period and has not caused or contributed to the representative’s error.

It also demonstrates the importance of establishing the precise chronology of communications, including when instructions were given and whether the employee had done everything reasonably required of them before the deadline.

The decision does not mean that representative error automatically establishes exceptional circumstances. The Commission must still consider all the statutory factors and assess the particular evidence.

Representatives

Applicant: Mr G. Dircks, Just Relations
Respondent: Mr M. Scott
Commission Member: Commissioner Yilmaz