Casey v Guardian Community Early Learning Centres

[2014] FWC 4002

[2014] FWC 4002

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Krystena Casey
v
Guardian Community Early Learning Centres T/A Smith Street Childcare
(U2014/7009)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 18 JUNE 2014

Application for relief from unfair dismissal; application made outside of the time prescribed in s. 394(2); consideration whether to allow a further period within which application should be made; application lodged 3 days out of time; applicant waited until second-last day to lodge application by posting it in the ordinary surface mail; applicant relied on surface mail being delivered within 1 day; not satisfied that explanation is an acceptable explanation for delay; not satisfied that there are exceptional circumstances; further period to make application not allowed; application dismissed.

[1] This is an edited version of a decision delivered in transcript on 16 June 2014. Krystena Casey commenced her employment as a cook with Guardian Community Early Learning Centres, (Guardian) on or about 10 March 2012. On 11 April 2014, Ms Casey was advised that her employment with Guardian was to be terminated with effect from that day. The Commission received by post on 5 May 2014 an application made under s. 394 of the Fair Work Act 2009 (Act) by Ms Casey for an unfair dismissal remedy. Ms Casey’s application was made outside of the time within which such an application may be made. Ms Casey now seeks to be allowed a further period within which to make her application.

[2] Guardian says that it dismissed Ms Casey because she had not appropriately handled food delivery, its preparation and the service of food for the consumption of children at the child care centre at which she was employed. These reasons are set out in correspondence to Ms Casey dated 11 April 2014. Guardian says that Ms Casey was aware of the food handling requirements, that she held a food handler’s certificate, that she had received a previous warning and had been counselled about food handling. In the circumstances, Guardian says that it was justified in dismissing Ms Casey from her employment. Guardian paid Ms Casey three weeks’ pay in lieu of notice having regard to her age and length of service. Ms Casey disputes the reasons for her dismissal and says that her dismissal was harsh, unjust or unreasonable.

[3] First, I will deal with the principles that are to be applied in considering whether or not to allow an extension of time. Ms Casey’s dismissal, as I indicated, took effect on 11 April 2014. Her application to the Commission for it to deal with her application for a remedy should have been made within 21 days after her dismissal took effect, namely by 2 May 2014. The application was made, as I indicated, on 5 May 2014 when it was received by the Commission and was therefore three days outside of the time prescribed, or to put it another way, was one business day late.

[4] The Commission may allow a further period within which to make an application. As I explained to Ms Casey at the commencement of these proceedings, the discretion to allow a further period will only be exercised if I am satisfied that there are exceptional circumstances, taking into account the following:

● the reason for the delay;

● whether the person became aware of the dismissal after it took effect;

● any action taken by the person to dispute the dismissal;

● prejudice, if any, that the employer might suffer, including prejudice caused by the delay;

● the merits of the application; and

● fairness as between the person and other persons in a similar position.

These are matters which are set out in s. 394(3).

[5] It is clear from the structure of s. 394(3) of the Act that each of the matters that are set out therein must be taken into account when assessing whether or not exceptional circumstances exist. Exceptional circumstances are circumstances that are out of the ordinary, that are unusual, special or uncommon, but the circumstances need not be unique nor unprecedented, nor even very rare. Before considering whether to exercise my discretion to allow a further period within which Ms Casey’s application may be made it is therefore necessary first for me to consider and determine whether there are exceptional circumstances.

[6] I therefore turn to the matters that are set out in s. 394(3), first to reason for the delay, there must be an acceptable reason for the delay. Ms Casey needs to provide a credible reason or credible reasons explaining the whole of the period that the application was delayed. Ms Casey has advanced the following reasons as her explanation for the delay. Firstly, Ms Casey says that she completed her application for an unfair dismissal remedy, together with a letter addressed to her former employer and also a letter to the Commission, on 28 April 2014, but she waited until the morning of 1 May 2014 to send her application to the Commission and then did so by ordinary post.

[7] On a perusal of the application, I note that it was signed by Ms Casey on 28 April 2014 and Ms Casey says that she delayed posting her application because she was waiting for a letter from a psychologist which arrived on some date after 27 April 2014. Ms Casey also says that she was waiting to receive copies of minutes of a meeting that was held with Ms Askew and another person, both of whom are employed by her former employer, which Ms Casey says she had requested be provided, but at the date on which she finally sent her application had not been received.

[8] Ultimately Ms Casey sent her application for an unfair dismissal remedy to the Commission, as I indicated, by ordinary post on 1 May 2014. Ms Casey also says that under difficult and stressful conditions, she made every effort to lodge her application to the Commission before the due date. Ms Casey says that her application was completed and posted at the post office on the morning of 1 May 2014 and that she trusted that it would arrive in the city, being Melbourne, the following day, which she says is claimed by Australia Post. It was only later that Ms Casey discovered that her application did not arrive at the Commission until 5 May 2014, a date after the last date on which she could lodge an application. This is consistent with the substance of the application completed by her, and in particular in relation to the answer given by her to question 1.4 of the application form which asks, “Are you making this application within 21 days of your dismissal taking effect?” to which Ms Casey responds, “Yes.”

[9] Unfortunate as it is, I do not regard the reasons advanced by Ms Casey for delay either collectively or separately as constituting an acceptable explanation for the delay. Ms Casey on her own admission well knew that there was a time limit within which such an application should be made. She ultimately made a choice of waiting until the day before the last day on which an application could be made before sending her application by post using ordinary surface post.

[10] Contrary to Ms Casey’s assertion in her written materials about what Australia Post guarantees, a cursory review of publicly available material on the Australia Post website shows that an item of regular mail, which includes an item sent by registered post, is estimated to be delivered by Australia Post within one to four business days, depending on point of origin and destination. No guarantee is made that an article of mail sent by ordinary surface post will be delivered within a particular time-frame. The only guarantee that is to be found on the Australia Post website concerns a delivery date for items sent by express post, which Australia Post guarantees will be delivered by the next business day after sending. The application was delivered to the Commission within the period estimated by Australia Post, but not in time to meet the requirement of s. 394 (2)(a) of the Act.

[11] Ultimately Ms Casey chose to send her application by mail and hoped that it would be delivered by the next day. Ms Casey could have sent her application by electronic means such as email. She could have hand delivered the application, she could have sent it by express post. Any of these methods would have ensured that the application was made within the time specified. The method chosen by Ms Casey was, with respect, entirely within her control, and by relying on ordinary surface post to deliver an application, she took the risk that her application would not reach its intended destination within the time prescribed.

[12] As to Ms Casey’s reasons relating to waiting for the delivery of a psychologist’s report and the minutes of the meeting held by her former employer, in my view these documents were not essential to her making her application. Indeed, Ms Casey had completed the application on 28 April 2014 and nothing further was needed at that time in order for Ms Casey to make a valid application other than ensuring its delivery to the Commission by 2 May 2014. Ms Casey could have and should have sent her application on the day or the next day following the date on which she signed the application. Even by using ordinary surface post on 28 or 29 April 2014, that would have significantly increased the chances of her application being delivered to the Commission within the time prescribed.

[13] In her written material Ms Casey seems to rely on the fact that she found the termination of her employment stressful and that she was under the care of a psychologist as an explanation for the delay. There is no evidence, however, that her cognitive functioning was impaired to such a degree as would result in an inability or restriction on her ability to make an application within the prescribed time period, nor, in fairness to Ms Casey, did she assert that that was the case when I asked her that question directly.

[14] Indeed, Ms Casey’s conduct during the period following her dismissal is suggestive of the contrary. She was, for example, able to complete her application and sign it by 28 April 2014, still allowing for several days before the application would no longer be able to be made. She was also able during this time to compose a detailed five-page letter to her employer setting out the basis on which she says that her dismissal was harsh, unjust or unreasonable and answering many of the criticisms about her performance which are set out in the letter of termination.

[15] Once Ms Casey had completed her application, all that remained for her to do was to choose an appropriate means by which she would lodge her application so as to ensure that the application was lodged within the time prescribed. The responsibility of complying with time limitations so far as they concern making applications, rests entirely on an applicant. As I indicated earlier, there was nothing to prevent Ms Casey posting the application at an earlier date, posting it by another means or lodging the application electronically or ensuring that it was hand delivered within the time prescribed.

[16] There is no evidence which would suggest that the stress associated with the termination of her employment was of such magnitude as would prevent Ms Casey from doing any of these things. Indeed, stress and shock resulting from a dismissal is not an uncommon experience of persons who have been dismissed and does not generally provide a basis, without more, for an acceptable explanation for the delay. Ultimately the reason for the delay was that Ms Casey waited until 1 May 2014 on which to post her application. The method that she chose was one that could not guarantee the application would be here with the Commission within the time prescribed. Taken in its totality, Ms Casey’s explanation of the reasons for the delay do not in my view provide an acceptable explanation. The absence of an acceptable explanation for the delay weighs against Ms Casey in her application to extend time.

[17] As to the awareness of the date on which dismissal took effect, Ms Casey accepts that she became aware of the dismissal on the day it took effect, namely 11 April 2014. Consequently, Ms Casey had the full 21 days within which to lodge her application. In the circumstances, that fact is a matter that weighs against Ms Casey.

[18] As to any action taken by Ms Casey to dispute her dismissal, apart from ultimately making her application to the Commission, Ms Casey wrote to her employer by letter dated 28 April 2014 in which she set out, as I indicated earlier, in some detail a response to the allegations that had been made by her employer on which it relied to justify the termination. In that letter, Ms Casey makes clear that she regards her dismissal as harsh, unjust or unreasonable. The employer accepts that it received that letter at a time before the unfair dismissal remedy application needed to be made. That Ms Casey took steps to dispute her dismissal with a former employer, weighs in her favour.

[19] Turning then to prejudice to the employer, Guardian did not contend that it would suffer any prejudice by reason of the delay or otherwise. Given the short period of delay, this is a proper concession to make. However, the mere absence of prejudice to an employer does not mean that there is a sufficient basis to extend time. This is but one of a number of factors about which account must be taken. In my view, Guardian well knew that an application of the kind ultimately made by Ms Casey would be made. Ms Casey made that clear in her letter of 28 April 2014. In the circumstances, I am prepared to accept that the absence of prejudice is a factor that weighs slightly in favour of Ms Casey, having regard to the circumstances of this case.

[20] Turning then to the merits of the application, although Guardian submitted that the substantive application lacked merit, I disagree. That is not to say that I am of a view that ultimately Ms Casey's substantive application would succeed if permitted to go forward, but based on the material that is available to me at this stage, I think that Ms Casey has a case to advance. Although there were no substantive evidentiary matters canvassed which go to merit, it seems clear on the material that the allegations that Guardian intend to rely on to justify its dismissal of Ms Casey will be highly contested.

[21] Ms Casey says, in addition to those matters, that she was denied procedural fairness because of the manner of her dismissal and that she was denied an opportunity to have a support person with her at all relevant times when the decision to dismiss was the subject of discussion between her and her former employer. Even if Guardian is able to establish that it had a valid reason for dismissing Ms Casey from her employment, it does not follow that the dismissal was nevertheless not harsh, unjust or unreasonable.

[22] Section 387 of the Act sets out a range of considerations to which regard must be had in determining whether a particular dismissal is harsh, unjust or unreasonable, and valid reason is only one of a number of considerations. As the High Court of Australia observed in Byrne v Australia Airlines Ltd 1 when considering the meaning of harsh, unjust or unreasonable, it may be that a termination is unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases, the concepts overlap, thus one termination of employment may be unjust because the employee is found not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided on inferences which could not reasonably have been drawn from the material before the employer and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. So it will be seen that it is not enough to simply demonstrate that an employer had a valid reason.

[23] Based on the material that is presently before me, limited as it is, I am of the view that the case that would be advanced by Ms Casey has some merit. Or to put it another way, it is not a case which has no reasonable prospect of success. In the circumstances, the merits of the application is a factor that I weigh slightly in favour of Ms Casey.

[24] As to the question of fairness as between Ms Casey and other persons in a similar position, neither Ms Casey nor Guardian advanced any argument to address this consideration. There are, however, a number of decisions of this Commission which have considered the effect of a delay that is caused by reason of postal delays and specifically, the extent to which those considerations might attract a finding that there is an acceptable explanation for a delay.

[25] I will, for present purposes, deal with five decisions of single members of this Commission. First is the decision in Barbara Wiggins v Fielders 2. In that case, the applicant gave evidence, which was accepted by the Commissioner, that she sent her application by post, delivering it to a street post office box. It was not until sometime later that she found out that her application had not been received by the Commission. The application for an extension of time was said to be supported by the fact that the applicant's original application had been lost in the mail.

[26] Turning to the consideration of whether that constituted an acceptable explanation, the Commissioner at paragraph [51] said:

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 of a hundred kilometres from the Sydney Fair Work Australia registry on the second-last business day available is not, on any level, a serious attempt to lodge an application within a specified time limit.

[27] The Commissioner ultimately concluded that he was not persuaded to exercise his discretion because he was not satisfied that there were exceptional circumstances.

[28] The next decision is Daniel Ruthven v Alcom Fabrications 3 which has some similarities to this case, in that the application was signed some days before it was posted and was posted before the 21 day time limit had elapsed. The applicant had allowed four days for his application to be delivered by Australia Post to the tribunal. Furthermore, for unexplained reasons, it arrived three days after that, namely seven days after it had been posted. In that case, the Commissioner  was satisfied that there was an acceptable reason for the delay, he considered in all the circumstances that there were exceptional circumstances and granted the application for extension.

[29] The next decision is Jiyoung Park v Supreme Dental Surgery Pty Ltd 4. In that case, the Commissioner  concluded that an application sent by express post, which arrived more than one business day after it had been sent, and caused the application to therefore be outside of the time provided an acceptable reason of delay. The Commissioner concluded that there were exceptional circumstance, and consequently granted the application.

[30] The next decision is Raoul Caire v Imscan Technologies 5. In that case, the application was sent by ordinary post but did not arrive until some seven days after it had been sent. The Commissioner at paragraph [18] said:

Australia Post delivery standard for standard letters within a metropolitan area is the next business day. Australia Post is required to deliver 94 per cent of domestic letters on time.

[31] I extrapolate there, that that is the performance standard that Australia Post sets itself, it is not a guarantee of delivery. In any event, the Commissioner continued:

I am satisfied that a delay of a week, that is the time between when the applicant says he posted the letter and the date it was received by the Fair Work Commission, is an exceptional delay.

Consequently, the Commissioner granted the extension.

[32] The final decision to which I refer is Jon Paul Ellis v TNQITC Pty Ltd 6. In that case the application was sent by ordinary mail but did not arrive for some 10 days after it had been posted. In the circumstances, the Senior Deputy President concluded that period of delay outside of the performance targets set by Australia Post was an exceptional circumstance and consequently concluded that there were exceptional circumstances warranting an extension of time.

[33] Each of the cases where exceptional circumstances were found to exist, are distinguishable in a significant way from the facts in this case. The decision in Jiyoung Park concerned delivery by express post and, as I noted earlier, there is a guarantee given by Australia Post that it would deliver express post articles within one business day. In the circumstances, it would be reasonable for an applicant to rely upon that guarantee, provided that the applicant sent the item by post within sufficient time for it to be delivered.

[34] In each of Ruthven, Raoul Caire and Jon Paul Ellis, the postal delay involved delivery delays well beyond the length of delay in this case and, consequently, well beyond the time estimated by Australia Post for delivery of items of ordinary surface mail. It is that fact that the Commission in each case relied upon to support an acceptable explanation finding and ultimately an exceptional circumstances conclusion. Here, as I indicated earlier, the application was delivered within the time estimated by Australia Post.

[35] Without expressing a view as to the correctness of the conclusions in the three cases mentioned above, it is sufficient to note that none of these decisions concerned delivery within the time estimated by Australia Post, and none of the decisions involved an applicant allowing only one day for delivery. In my view, merely sending an item by ordinary surface post, which item is delivered within the Australian Post estimate, does not provide an acceptable reason for the delay and is a matter that is entirely in the control of the applicant. An applicant who waits until very late in the day to send an application to the Commission by ordinary surface post, runs the real risk that the application will not be delivered in time. To that extent, I agree with the observations made by the Commissioner in Wiggins, that sending an item by ordinary surface post is fraught with risk and that it is not uncommon for such items to be delayed or even lost, and that in and of itself does not provide an acceptable explanation. Moreover I agree with the Commissioner’s observation that waiting until the second last day before sending an application by ordinary surface post is not a serious attempt to make an application within the time prescribed.

[36] But ultimately, cases of this kind will generally turn on their own facts. I acknowledge that it is important that a consistent application of principle is to be applied in applications of this kind. In the present case I regard this consideration as essentially neutral.

[37] Statutory time limitations that are applicable to the exercise of a person's right to make an application of this kind are in place as an expression of Parliament's intention that rights must be exercised promptly within the time prescribed so as to bring about certainty. Time limits are about balancing the right to bring an action against the desirability of prompt action and certainty. The need for certainty is so that questions about actions that have been taken by one party should be agitated within a particular period, otherwise that right to bring an action will be lost. Applications seeking an unfair dismissal remedy must be made within 21 days after the dismissal takes effect and only in exceptional circumstances will the Commission consider allowing a further period.

[38] Weighing all of the matters that I must weigh and take into account set out in s. 394(3), there is little in the evidence and other material before me that would establish that there are exceptional circumstances warranting a consideration of whether to exercise a discretion to allow a further period within which Ms Casey could make her application. True it is that her application is not without merit, but absent an acceptable explanation for the delay, bearing in mind that Ms Casey had the full 21 days within which to lodge her application, but waited until the second-last day before time had expired, and then chose a delivery method that would not guarantee delivery within the time required combined to outweigh the merit consideration. That she took a step to dispute her dismissal and that there's no real prejudice to Guardian does not, in my view, result in any significant shift in the balance the other way.

[39] In the circumstances, I am not satisfied that there are exceptional circumstances and so I do not allow a further period within which Ms Casey may make her application. Ms Casey's application made under s. 394 of the Act is dismissed. An order has been issued separately in PR552098.

DEPUTY PRESIDENT

Appearances:

K. Casey on her own behalf

A. Ivers for Guardian Community Early Learning Centres

Hearing details:

2014.

Melbourne.

16 June.

 1   (1995) 185 CLR 410 [465]

 2   [2012] FWA 10025

 3   [2014] FWC 2867

 4   [2014] FWC 2375

 5   [2013] FWC 3154

 6   [2010] FWA 2479

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