Barbara Wiggins v Fielders Australia Pty Ltd

[2012] FWA 10025

[2012] FWA 10025

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Barbara Wiggins
v
Fielders Australia Pty Ltd
(U2012/11896)

COMMISSIONER BULL SYDNEY, 30 NOVEMBER 2012

Application for an unfair dismissal remedy - jurisdictional objection - application made out of time - exceptional circumstances argued - application lost in the mail.

[1] This matter is an application under s.394 of the Fair Work Act 2009 (the Act) made by Ms Barbara Wiggins (the Applicant) alleging that her former employer terminated her employment in circumstances which were unfair.

[2] The Application names Hills Holdings T/A Fielders Australia as the employer. However, the Tribunal has been advised by the employer that its true legal name is Fielders Australia Pty Ltd (the Respondent). Pursuant to s.586 of the Act the application is amended to the extent that the true legal employer of the Applicant is correctly identified.

[3] The Applicant was terminated on 9 July 2012. The unfair dismissal application was received by the Tribunal via email on 30 July 2012. It is apparent from this date that the application was lodged 21 days from the date upon which the dismissal took effect.

[4] On 14 August 2012, the Respondent objected to the unfair dismissal claim but raised no issue with respect to its late filing. Following unsuccessful telephone conciliation the Respondent subsequently raised a jurisdictional issue being that the application was lodged out of time. The Applicant’s response was that the application had been posted to Fair Work Australia (FWA) at its Sydney Registry address within the specified 14 day time limit but it had not been received by the Registry.

[5] On 13 September 2012, directions were issued by the Tribunal for the Applicant to file any submissions and witness statements by 27 September 2012, and for the Respondent to file any submissions and witness statements by 11 October 2012. The matter was listed for hearing on Friday 26 October 2012.

[6] The Applicant lodged a statement on 27 September 2012, together with other supporting documents, however no witness statements were filed. The Applicant subsequently advised the Tribunal that the statement lodged on 27 September 2012, was her outline of submissions. 1

[7] The Respondent filed its outline of submissions on 11 October 2012, with a number of statements from various employees who attested to having witnessed the conduct of the Applicant which resulted in her termination.

[8] On 16 October 2012, Ms Rebecca Bentham and Ms Joanne Thomson, on behalf of the Applicant, filed further documentation including another outline of submissions and a statement of Ms Susan Bentham (the Applicant’s mother) dated 27 August 2012.

[9] The matter proceeded as scheduled on 26 October 2012. At the hearing the Applicant was represented by her sister, Ms Rebecca Bentham. The Respondent was represented by Mr John Love, a solicitor, whose application for leave to appear was unopposed.

[10] The Applicant presented her case by way of submissions, and advised the Tribunal it was not intended that the Applicant herself would give evidence:

“Ms Bentham: No we’re not calling any witnesses” (PN8)

[11] However, as the matter transpired during the Applicant’s submissions, the Applicant’s representative Ms Bentham did give evidence, and comments by Ms Joanne Thomson were also made from the bar table. Ms Bentham’s evidence related to a conversation she had with the Applicant in a motor vehicle whilst travelling to the Snowy Mountains for a family holiday and skiing trip. The Applicant told Ms Bentham that she had posted her application to FWA on 20 July 2012 (PN170, 190).

[12] As the Applicant was also relying upon the witness statement of her mother to verify she had posted the application, it was deemed necessary for the mother to give such evidence in person. Ms Bentham told the Tribunal she was unaware of the necessity for the witness to personally give evidence.

[13] At the end of the Applicant’s case, the Tribunal adjourned the matter until 26 November 2012, to allow Ms Susan Bentham’s evidence to be given in person.

[14] The proposal for the matter to be adjourned pending Ms Susan Bentham giving evidence was opposed by the Respondent on the basis that the Applicant was present at the proceedings and was able to give evidence in relation to the posting of her application on 20 July 2012, but chose not to give any evidence under oath.

[15] On resumption of the hearing on 26 November 2012, the Applicant had changed representation and was represented by Ms Rachael Sutton, a solicitor. In addition to calling evidence from Ms Susan Bentham (the basis on which the hearing had been adjourned) Ms Sutton sought to tender a statement of the Applicant which was prepared on 21 November 2012.

[16] The Respondent objected to the Tribunal receiving this additional statement as it was not in compliance with the directions issued by the Tribunal where the Applicant’s witness statements needed to be filed by 27 September 2012. Further, the Respondent had taken no objection to the Applicant’s additional outline of submissions filed on 26 October 2012, and that the Applicant was present in the court room on the day of hearing and elected not to give evidence.

[17] Mr Love, on behalf of the Respondent, argued that if directions of the Tribunal are not complied with in lieu of any proper explanation, further indulgences should not be granted. Mr Love referred the Tribunal to the Full Commission decision of the Industrial Relations Commission of New South Wales in The Spanish Club Limited v ALHMWU on behalf of Mina Mar Bounouar 2.

[18] Ms Sutton for the Applicant argued that the Applicant was not legally represented in the first instance and that, as a result of her engaging legal assistance she wished to present the additional evidence to the Tribunal, particularly in relation to the merits of the Applicant’s unfair dismissal case.

[19] As stated above, the Applicant had closed her case on 26 October 2012, subject to the granting of an adjournment to call one further witness. The Tribunal was not persuaded to allow additional evidence to be presented simply on the basis the Applicant was now legally represented.

[20] The Tribunal records indicate on two separate occasions prior to the first hearing of the matter that the Applicant or her representatives had advised FWA officers that she had both sought legal advice and had engaged solicitors. 3 Further, the additional statement sought to be tendered appeared to repeat and expand upon the Applicant’s initial statement submitted on 27 September 2012.

Legislative Framework

[21] Subsection 394(2) of the Act provides that an unfair dismissal application must be made within 14 days after the dismissal took effect:

394 Application for unfair dismissal remedy

...

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

[22] Subsection 394(3) of the Act provides that FWA may allow a further period for an unfair dismissal application to be made if satisfied there are exceptional circumstances. The Tribunal in concluding whether exceptional circumstances exist must take into account certain listed factors:

394 Application for unfair dismissal remedy

...

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

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

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

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[23] As can be seen above, an unfair dismissal application “must be made” within 14 days or a further period allowed by the Tribunal. The words must be made are not defined in the Act but guidance to their meaning can be found in the FWA Rules 2010, where at Rule 7 - Lodging Documents with FWA provides that documents may be “lodged” by physically delivering the document to an FWA office in business hours, by email, by fax, or by e-lodgement on the FWA website. Rule 14 also allows unfair dismissal applications to be made by telephone.

[24] In my view an unfair dismissal application is not made where it is posted, until it is received by the Registrar or the Registrar’s staff in the Registry. Thus, if an unfair dismissal application is posted but not delivered to the FWA Registry, the application has not been made. (see Francis v City of Ringwood (1978) 4)

Reasons for the delay

[25] The Applicant’s position is that on 20 July 2012, she was driven to a street postal box in Lakes Heights, New South Wales, by her mother, Ms Susan Bentham, where she posted her unfair dismissal application. Ms Susan Bentham gave evidence that she drove her daughter to the postal box where she witnessed the Applicant post a package, which the Applicant said contained her unfair dismissal application.

[26] The Applicant submits that having posted the Application, she then proceeded on a pre-arranged holiday and did not return until Friday 27 July 2012. On Monday 30 July 2012, the Applicant sent an email to FWA with a copy of her original application for lodgement with her father’s credit card details for payment of the application fee.

[27] The email read as follows:

“To whom it may concern,

I posted this on 20/07/2012 and have not received any thing back so i thought i would email to you.

Can you please respond once you have received my application.”

The merits of the application

[28] The Respondent submitted that the Applicant received a written disciplinary warning on 1 August 2011, for what was alleged to be “disrespectful and inappropriate language in the workplace”.

[29] On 4 July 2012, the Applicant stated in front of other employees that she was “pissed off with a certain employee and that she would “f**king head butt her if she came in to her path”. This statement was repeated by the Applicant on numerous times in front of other employees who provided statements to the employer confirming that the incident had occurred. The employee whom the comments were made about, stated in writing to the employer that she no longer felt comfortable coming to work. Following an investigation by the Respondent, the Applicant was terminated on the grounds of serious and wilful misconduct on 9 July 2012.

[30] The Applicant does not dispute that she made offending comments similar to those alleged. In mitigation it is argued that in May 2012, the Applicant was diagnosed with bipolar affective disorder. A statement from a Registered Psychologist dated 19 July 2012 (10 days after the dismissal), confirming this diagnosis was tendered. Ms Sutton submitted the comments were made out of frustration and were not made directly to the actual employee. Further, no employee had stated that they were personally threatened by the Applicant. It was argued that the Applicant had a strong case on merit and that this should be a significant factor in holding that exceptional circumstances exist to extend time for filing the application.

[31] The Respondent submits that the application has little merit, and as an employer, it has a general duty of care to its employees. The Respondent states that the Applicant did not disclose her bipolar disorder until after the dismissal as is evidenced by the Registered Psychologist written confirmation on 19 July 2012.

[32] Where prima facie an unfair dismissal application appears to contain significant merit, an extension of time application may be more generously considered. (see Haining v DP Drake and Ors) 5.

[33] While the Tribunal has not heard full argument on the merits, I do not consider what is currently before the Tribunal as demonstrable of a prima facie meritorious case warranting favourable consideration. At best I would consider the merits as a neutral factor.

Whether the Applicant first became aware of the dismissal after it had taken effect

[34] The Applicant was advised on 9 July 2012, of her termination and this was recorded on a document titled Termination of Employment dated 9 July 2012, and was signed by the Applicant. A further and more detailed confirmation of termination letter dated 16 July 2012 was also sent to the Applicant.

[35] Ms Sutton sought to rely on a secondary argument that the Applicant’s termination was effected in writing on 16 July 2012, and therefore, the application was lodged in time. This submission cannot be seriously entertained. The Applicant’s unfair dismissal application states she was advised of her termination on 9 July 2012, and that her dismissal took effect on that date. All the documentation before the Tribunal supports the 9 July 2012, as being the date the Applicant was terminated and when she was advised of her termination.

Action to dispute the dismissal

[36] The Applicant’s submission was that her representative contacted FWA on 12 July 2012, to discuss her unfair dismissal rights. The Respondent was not aware of the Applicant’s intention to contest her dismissal prior to being served with the unfair dismissal application.

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

[37] There was no contest from the Respondent that the granting of a further period within which to lodge the application would result in prejudice to the employer.

Fairness as between the Applicant and other persons in a similar position

[38] No persons in similar positions were identified and this factor was not addressed during the hearing.

Conclusion

Exceptional Circumstances

[39] In establishing whether exceptional circumstances exist the Tribunal must take into account the factors listed above expressed at s.394(3)(a) to (e) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Tribunal as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[40] 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. (see Nulty v Blue Star Group Pty Ltd 6)

[41] Suffice to say it is not enough for an applicant to establish an acceptable explanation for delay, without also establishing that the reason is an exceptional circumstance or part of a number of factors, which when viewed jointly, represents exceptional circumstances.

[42] The Applicant’s explanation for the late lodgement of her unfair dismissal application boils down to the submission that her original application was “lost in the mail’.

[43] The Applicant submits that she posted her application at a street postal box in Lake Heights, New South Wales on 20 July 2012. The Applicant’s mother Ms Susan Bentham gave evidence that she witnessed a package being posted and her daughter told her that the package was her unfair dismissal application. The Applicant’s sister Ms Rebecca Bentham gave evidence that her sister had told her on Monday 22 July 2012, whilst driving to the Snowy Mountains that she had posted her application on Friday 20 July 2012, to which she replied “Oh excellent so hopefully we’ll hear something back. Hopefully we’ll hear something back as soon as we get back then.”(PN190)

[44] It is noted that the Applicant’s original application was said to have been posted on Friday 20 July 2012, from Lake Heights, some 100 kilometres from the Sydney CBD. At best it would have arrived at FWA on Monday 23 July 2012, the last day for filing. The Respondent points out that Australia Post’s indicative surface mail delivery times between metropolitan areas of capital cities and country locations are two business days resulting in the application (had it been received) being received at FWA’s Sydney registry on Tuesday 24 July 2012, and hence being out of time.

[45] There was no explanation provided as to why the Applicant chose to use Australia Post surface mail. There was no explanation as to why the purported first application was posted and not emailed as was the second application received by FWA on 30 July 2012. There was no explanation as to why the Applicant did not use registered mail.

[46] On 30 July 2012, the Applicant without knowing whether her application had been received by FWA emailed a copy of the application said to have been posted on 20 July 2012, together with visa card payment details, not knowing whether this payment has already been accepted. The Applicant did not telephone FWA to enquire as to whether her postal application had been received, nor did the Applicant check with her father (whose credit card details were used for the application fee) to ascertain whether the application fee had already been deducted from his credit card account. Providing the credit card payment details for a second time was said to have been done as a “safe practice”. (PN114)

[47] Extensions of time applications relating to mail delivery issues have not been a common occurrence in unfair dismissal applications, but are not unprecedented. In 1996, the Commissioner in deciding to grant an extension of time (note exceptional circumstances was not the test) said:

“I have decide (sic) to grant the application for extension of time after considering all of the matters put before me by the parties. In doing so, however I would strongly suggest that those representing applicants in proceedings under section 170EA of the Act take notice that as a general rule the excuse that the application was “lost in the mail” will not be considered as an acceptable explanation for failure to lodge the application within time.” 7

(My emphasis)

[48] In a further decision of the Australian Industrial Relations Commission in 1997 rejecting an extension of time application the Deputy President stated:

“The explanation that the application must have been “lost in the mail” is one that is of very little usefulness to the Commission.” 8

[49] In 2010, an extension of time application was refused where the application was received one day after the time limit expired in the Sydney FWA registry. The applicant without making any enquiries relied on Australia Post delivering the application in one day. The Senior Deputy President commented that the applicant could have faxed his application or sent it by express post but did not turn his mind to whether or not his application would arrive on time. 9

[50] In 2012, in a matter before the Tribunal, an extension of time was not required to be sought where the applicant’s unfair dismissal application was misplaced by the FWA Service team. The applicant had lodged his application by mail but used Australia Post’s registered mail service. It was demonstrated by the registered post delivery receipt date that the employee’s application had been lodged, within time, despite it having subsequently been misplaced. 10

[51] It is not an unknown occurrence that surface mail does not reach its intended destination or that its delivery is delayed beyond normal delivery times. In any event, posting the application by surface mail from a location 100 kilometres from the Sydney FWA registry on the second last business day available within the 14 day time limit is not on any level, a serious attempt to lodge the application within the specified time limit.

[52] On the above authorities it is fair to conclude that an applicant who relies on the surface mail delivery faces a difficult task in demonstrating exceptional circumstances should the application arrive late or go astray. If email, fax, phone filing and e-filing, which provide immediate confirmation of receipt are not available, registered postal mail sent well within the time frame at least provides evidence of the application having actually being sent. I note for example, under the Patent Regulations where a party wishes to provide evidence that they have mailed a document within the prescribed time limits, any evidence is only accepted where the document or letter was sent by registered mail and no less than five days prior to the expiration of the time limit. 11

[53] In my view, even accepting that the unfair dismissal application was posted on 20 July 2012 at a Lake Heights postal box, the Applicant has exhibited a careless indifference to ensuring that her application was received within the statutory prescribed time limits.

[54] In all of the circumstances, I am not persuaded to exercise the discretion provided in s.394(3) of the Act to extend the period for Ms Wiggins to lodge her unfair dismissal application.

[55] Accordingly the unfair dismissal application is dismissed as having not been lodged within the requisite statutory time limit and there being no exceptional circumstances to justify an extension of time for filing from 23 July 2012 to 30 July 2012.

COMMISSIONER

Appearances:

R Bentham in the first instance and later R Sutton of Counsel on behalf of theApplicant

J Love of Counselon behalf of the Respondent

Hearing details:

2012.

Sydney:

26 October,

26 November.

 1   FWA telephone file note with Applicant

 2   NSWIRComm 105 19 March 1999

 3   FWA telephone file notes of 11 Sept 2012 and 27 Sept 2012

 4 54 LGRA323 at 327 and followed in Hong Ye v Minister for Immigration & Multicultural Affairs [1998] FCA 341

 5 (1998) 86 FCR 248 Wilcox and Marshall JJ at 249 and Moore J at 252; see also Coker v Breen[2012] FWA 4374 at para 17.

 6   [2011] FWAFB 975

 7   Leonard and Health Services Union of Australia v Broadmeadows Craigieburn Community Health Services Inc. Print N3727 30 July 1996

 8   K.E. Jackson v Bearing Service Pty Limited Print N8213 22 January 1997

 9   Jason Varcoe v Leo Fardell Pty Ltd [2010] FWA6025 12 August 2010

 10   Gregory McDonald v Super Butcher Australia Pty Ltd [2012] FWA9973   27 November 2012

 11   Patent Regulations 1991 Schedule 2A Rule 82

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