Antonieta Melone v Anglicare Victoria T/A Anglicare Victoria

[2016] FWC 5493

[2016] FWC 5493

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Antonieta Melone
v
Anglicare Victoria T/A Anglicare Victoria
(C2016/4138)

COMMISSIONER CIRKOVIC MELBOURNE, 8 AUGUST 2016

Application to deal with contraventions involving dismissal – whether to extend time for lodging the application.

[1] On 15 June 2016 Ms Antonieta Liliana Melone (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is Anglicare Victoria T/A Anglicare Victoria (Respondent).

[2] The Applicant commenced employment with the Respondent on 30 December 2015. 1 She was the Team Leader of the Changing Futures Program.2 She says that she was dismissed on 24 May 2016 and the dismissal took effect on that day.3

[3] The application therefore was lodged 1 day out of time.

[4] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Alleged Contravention

[5] In her application the Applicant submitted that she was dismissed because of her political views and that her dismissal was also sexual discrimination. A breach of sections 340, 343 and 351 are alleged.

Respondent’s Submissions

[6] The Respondent submits the Applicant was dismissed during her probationary period due to concerns in relation to her management style, performance of duties and behaviour towards individual team members. The Respondent submits the Applicant disengaged with her team after insisting each team member provide her with both positive and negative feedback about herself. The Respondent submits that the team complained about being forced to provide negative feedback about the Applicant and subsequently being ignored. The Respondent submits it had been reported that, on 9 May 2016, the Applicant chaired a team meeting in which she inferred some team members were ‘incompetent’ and that she was carrying the risk of the cases being managed. The Respondent submits the Applicants approach to team management does not reflect the Respondent’s company values. The Respondent submits the administration of referrals was not being actioned by the Applicant in accordance with established standards and timeframes. The Respondent submits the established standards and timeframes of administration of referrals had been raised, demonstrated and discussed with the Applicant on three separate occasions. 4

Legislative scheme

[7] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

[8] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 5where the Full Bench said:

[13] 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.

[Endnotes not reproduced]

[10] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...
(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[11] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[12] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ  the correct approach.”

Background

[13] On 16 June 2016, the Respondent was advised by the Commission that an application had been made and that it had not been made within 21 days of the dismissal taking effect. On 1 July 2016, directions were issued for the filing of submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 11 July 2016.

[14] The Applicant was self-represented. The Respondent was represented by Mr Thomas Page of the Victorian Chamber of Commerce and Industry.

Matters to be taken into account pursuant to s.366(2)

[15] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[16] The Applicant submits that she completed and posted her application on 13 June 2016. 6 She submits that she attended the Epping post office with the intention to send the application via express post; however the post office was closed.7 When asked, the Applicant confirmed that the 13 June 2016 was a public holiday, that she had been aware of this on the day, however that she did not think the post office would be closed.8 The Applicant confirmed that she sent her application via standard post and that she had expected it to arrive at the Commission the following day.9

[17] The Applicant confirmed that prior to lodging her application she had contacted the Commission via telephone to confirm the time frame for filing an application and as a result she understood that she needed to file her application within 21 days of the date of her dismissal, by 14 June 2016. 10 The Applicant could not remember the exact day she contacted the Commission, she thought it likely to have been 10 or 11 June 2016.11 The Applicant submitted that when she contacted the Commission she did not ask about or confirm what the delivery options were.12 The Applicant confirmed that she looked at the Commission website prior to contacting the Commission.13

[18] When asked why she did not email the application, the Applicant said that she was not aware that she could email it. 14 The Applicant confirmed that she lives in Melbourne.15 The Applicant submitted that she did not consider attending the Commission to lodge her application because when she had completed her application the Commission was closed.16 The Applicant confirmed that she made the decision to lodge her application on 13 June 2016.17 The Applicant confirmed that she did not dispute that the website and the application form detailed the means by which an application could be lodged with the Commission.18

[19] The Respondent submits the reasons for the Applicant’s delay do not constituted exceptional circumstances. 19 The Respondent submits that the Applicant took her time, perusing the Act, visiting the website and calling the Commission. It submits she was aware of the 21 day timeframe.20 The Respondent relies on the decision of the Commission in Jason Varcoe v Leo Fardell Pty Ltd [2010] FWA 6025:

“[10] Consideration of when post might arrive at the destination to which it is addressed is a matter that arises routinely. It is a circumstance normally encountered and considered. Where there is a time limit on lodgement, it would be ordinary conduct to check Australia Post’s delivery standards and make allowances. Had Mr Varcoe managed to check these standards it would have been clear that the expected delivery time between country locations and metropolitan areas of capital cities is two days within the same State.

[11] Next day delivery could then have been assured by Mr Varcoe attending the post office and faxing the application, or by sending it by express post…

…

[13] Mr Varcoe’s circumstances are unremarkable. They are regularly, routinely and normally encountered.”

The Respondent also relies on the decision of the Commission in Taneisha Cuthbert v PRD Nationwide Werribee Real Estate [2014] FWC 675:

“[23] Again, I am not satisfied any of the issues to do with posting the application can be considered “exceptional.”…While she may have made a genuine attempt to file on time her decision to send the application by post; the delay in mailing until two days before the expiry of the 21 day period; and her decision to place the envelope in the wrong mail box, all contributed to the application being lodged out of time…again I am not satisfied they can be considered to be “exceptional circumstances” in that they are “…out of the ordinary course, or unusual, or special or uncommon…” To the contrary they are circumstances which are, unfortunately, regularly and often encountered.

…

[30] …a failure to act in a timely way and the failure to post the express mail envelope correctly meant the application was not received within this period…I am not satisfied those reasons can be said to constituted “exceptional circumstances” such as to warrant an extension of time….”

The Respondent further relies on the decision of the Commission in Porscha Juwa v Blue Cross Animals Society of Victoria [2015] FWC 5476:

“[17] The Australia Post website also provides guidance regarding indicative delivery times for domestic letters and parcels. For letter deliveries between metropolitan areas of capital cities and rural locations within the same state the website states that the estimated delivery time is two days.

[18] The Australia Post website also has a tool which allows customers to calculate the estimated delivery time for their letter…there was a risk that by sending the application by ordinary post that it would be delivered outside the 21 day timeframe…

…

[20] Together, these factors do not support a finding that the reasons for the delay constituted exceptional circumstances.”

The Respondent relies on the decision of a full bench of the Commission in Ceres Agricultural Company Pty Ltd t/a Ceres Agricultural Company v Joshua Regan [2016] FWCFB 371:

“[15] …We agree with the proposition that a failure to post an application to the Commission in sufficient time for it to arrive within Australia Post’s standard timeframes is not, of itself, an exceptional circumstance…”

[20] For this consideration there must be an acceptable reason for the delay 21 and this must be for the whole period that the application was delayed.22 I am not satisfied that the Applicant has provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[21] The Applicant submits that when she became aware of the dismissal she outlined her grievances to the Respondent. 23 The Applicant submits that she provided the Respondent with a summary of work that she had undertaken and that she had outlined that there was a lack of evidentiary, analytical, impartial rationale for her dismissal. The Applicant submits that on the day of her dismissal she emailed an outline of her concerns to the Respondent, a copy of this email was attached to her application.24

[22] The Respondent submits that whilst the Applicant sent an email to the Respondent after she had been notified of her dismissal, the Applicant did not take any steps to dispute her dismissal. 25 The Respondent submits the Applicant made no obvious requests for the decision to be reviewed or that she be reinstated.26

[23] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 27

[24] Whilst I accept the evidence that the Applicant sent an email as outlined above, I do not accept that this is action taken to dispute the dismissal. This weighs against a finding that there are exceptional circumstances.

(c) Prejudice to the employer (including prejudice caused by the delay)

[25] Prejudice to the employer will go against the granting of an extension of time. 28 The Respondent did not submit that there was any prejudice to it if an extension of time were granted. This weighs in favour of a finding of exceptional circumstances.

(d) Merits of the application

[26] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 29 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.30 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

(e) Fairness as between the person and other persons in a like position

[27] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 31 However, there were no submissions that there is, or has been, any persons in a similar position to the Applicant. I find this criterion neutral.

Conclusion

[28] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[29] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 32

[30] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

[31] An order to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

Antonieta Liliana Melone, Applicant;

Thomas Page of Victorian Chamber of Commerce and Industry, for the Respondent.

Hearing details:

2016

Melbourne

11 July.

 1   General Protections Application, lodged 15 June 2016, p. 2; Employer Response to General Protections Application, lodged 21 June 2016, p. 3.

 2   General Protections Application, lodged 15 June 2016, p. 13.

 3   Ibid, p.2.

 4   Employer Response to General Protections Application, lodged 21 June 2016, p. 4.

 5   [2011] FWAFB 975.

 6   Exhibit A1, page 3; PN36.

 7   PN37 – 39.

 8   PN42 – 43 & 70.

 9   PN66 – 69.

 10   PN81-83.

 11   PN106.

 12  PN107-108.

 13   PN112.

 14   PN101.

 15   PN137.

 16   PN139.

 17   PN142.

 18   PN105.

 19   PN295.

 20   PN299.

 21   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 22   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409.

 23   Exhibit A1, p. 3.

 24   General Protections Application, lodged 15 June 2016 p. 14.

 25   Exhibit R1, p.3.

 26   Ibid.

 27   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 28   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 29   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 30   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 31   Wilson v Woolworths [2010] FWA 2480, [24]-[29].

 32   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

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