Scott Ciantar v UGL Operations & Maintenance Pty Ltd [2016] FWC 6658 (U2016/7532). RYAN, C. 29 SEPTEMBER 2016.

 

In a newsletter-first, I have received a communication from an employee advocate, Lucio Matarazzo, who brought to my attention a case in which he was involved relating to a matter that was eight week’s “out-of-time” and includes the FWC’s views on hat can be “exceptional circumstances” and “representative errors”.

 

Ed: “Representational error” has always fascinated me. In any other circumstances, this would be a claim of negligence (that why there PI Insurance).

 

By way of background:

 

  • Mr Ciantar was dismissed from his employment with UGL 21 March 2016 and filed the application in this matter on 8 June 2016 some 8 weeks outside the 21-day time limit.
  • The FWA permits the Commission to extend the 21-day limit in “exceptional circumstances”.
  • The Commissioner heard this matter over two days: the first day to hear evidence from the union (AMWU) and the second from the employer.
  • The union blundered in firstly not lodging the “unfair”, and then wrongly lodging a “notice of discontinuance. This leads to the argument of “representative error”.

The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd where the Full Bench said:

“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.” [My emphasis].

The Commissioner, in considering Cheval Properties P/L (t/as Penrith Hotel Motel) v Smithers noted that:

“It is clear…that the Commission does not require an applicant to provide credible reasons for every single day of the period of delay. Rather the applicant cannot leave a significant part of the period of delay unexplained”.

The Commissioner then analysed each period of the time between the dismissal and the following 11 weeks, finding:

“… the conduct of Mr Ciantar and those he interacted with in relation to his unfair dismissal claim…Mr Ciantar has provided a credible reason for the delay…clearly show[ing] that exceptionable circumstances were present which were not of Mr Cinatar’s making but which significantly impacted on him and caused him to not make the current unfair dismissal application [within time]”.

Commentary

 

It is clear that the main reason the application was allowed, was the tenaciousness of Cinatar’s pursuit of the matter, and the mistakes of the Union.

 

As I mentioned earlier, this is unfair both on the applicant and respondent, as I believe “representative error” is something that should not be considered (and it has held up for many years in the FWC) because it is a prime facie case of professional misconduct. And, that folks, is why we have Professional Indemnity insurance.