[2017] FWC 3655

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Thomas
v
ACT Government – Transport Canberra and City Services T/A ACTION
(U2017/1027)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 11 JULY 2017

Application for relief from unfair dismissal - extension of time - exceptional circumstances warranting allowing a further period for the making of an application - timeframe for lodging the application extended to 2 February 2017.

[1] Mr Christopher Thomas (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 2 February 2017 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by the ACT Government – Transport Canberra and City Services T/A ACTION (ACTION – the Respondent) on 25 November 2016 was unfair.

[2] The Applicant commenced employment with the Respondent as a bus driver on 27 March 2008 and was dismissed for misconduct in November 2016. The termination letter, which was dated 17 November 2016, stated that the Applicant’s employment would be terminated with effect from close of business on 18 November 2016. The termination letter was sent to the Applicant’s home address by Registered Post on 17 November 2016, with Australia Post leaving a collection card at the Applicant’s home after it unsuccessfully sought to deliver the letter on 21 November 2017. The Applicant collected the letter from the Post Office on 25 November 2016.

[3] On 13 December 2016 the Applicant’s solicitor believed that he had successfully lodged an unfair dismissal claim on behalf of the Applicant and relying on the advice relating to payment of the application fee by credit card set out in the Commission’s Form F2 – Unfair dismissal application expected to be contacted by an officer from the Commission regarding payment.

[4] In the absence of contact from the Commission, the Personal Assistant to the Applicant’s solicitor contacted the Commission on 2 February 2017 when she was advised that no record of the application could be found. The Applicant’s unfair dismissal application was emailed to the Commission shortly thereafter, with the covering email stating as follows:

“Please see attached Form F2 – Unfair Dismissal Application for lodgement.

We note this application was completed online on 13/12/2016 (see attached document) with the lodgement ref: 12770.

The application was completed in accordance with the instructions on the website and the option to pay by credit card was chosen. We have been advised today that the lodgement was unsuccessful.”

[5] The Commission wrote to the Applicant on 7 February 2016 advising him that his application was received outside the 21 day statutory timeframe in which an unfair dismissal application must be lodged and that a decision to extend the time in which he was allowed to lodge his claim would need to precede the determination of the merits of his application. The Commission further advised the Applicant that conciliation on his application would be conducted by a Commission conciliator on 8 March 2017. The Commission wrote in similar terms to the Respondent.

[6] In its Form F3 – Employer Response to Unfair Dismissal Application the Respondent raised a jurisdictional objection contending that the application had been lodged out of time on the basis that the Applicant had been dismissed on 18 November 2016. The Respondent further contended that, relying on that date, the application should have had to been filed with the Commission by no later than close of business on 9 December 2016. The Respondent advised the Commission on 16 February 2017 that it wished to pursue its jurisdictional objection before having the matter conciliated.

[7] The matter was listed for mention and directions on 1 March 2017, with the extension of time issue listed for hearing on 6 April 2017. That hearing date was subsequently vacated at the request of the parties (see below).

[8] On 21 March 2017 the Respondent’s representative sent an email to the Commission which read as follows:

“On behalf of the Applicant and Respondent, the parties hereby inform the Commission that we consider, with respect to the Commission’s determination of whether the Applicant’s application was made within the period required in subsection 394 (2) of the Fair Work Act 2009, that the relevant facts are no longer materially in dispute between the parties.

Accordingly, the parties asked that the telephone hearing scheduled for 6 April 2017 be vacated and that the Deputy President determine the jurisdictional matter (whether the application was made within time or within a further period allowed by the Commission) on the material currently before the Commission. The representatives of the Applicant and Respondent are available, with advance notice, to discuss these matters further before the Commission should that be considered necessary.”

[9] In response to a question from the Commission, the Respondent advised on 6 April 2017 that it supported the application being referred for conciliation, with conciliation occurring on 8 May 2017.

[10] Conciliation did not resolve the matter. Accordingly, the matter was listed for hearing on 7 June 2017 to deal with whether there are exceptional circumstances warranting the Commission granting Mr Thomas a further period to make his application given that his application was received by the Commission on 2 February 2017. This was 48 days outside the statutory timeframe specified in s.394(2)(a) of the Act.

[11] At the hearing Mr Mason Manwaring appeared with permission for the Applicant, while Ms Kim-Marie Ivens appeared for Respondent. Witness statements were provided by Mr Thomas 1 and Mr Manwaring2 on behalf of the Applicant, and Ms Ivens3 and Mr Brosolo4 on behalf of the Respondent. None of the witnesses were required for cross examination.

The Relevant Legislation

[12] Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

394(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

394(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 (3).

394(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

Was the application made within the statutory timeframe?

[13] The Applicant submitted that his dismissal took effect on 25 November 2016 when he collected the termination letter sent by the Respondent from the Post Office and that as such the 21 day period in which to lodge his unfair dismissal application expired on 17 December 2016. The Applicant further submitted that his unfair dismissal application was electronically filed with the Commission on 13 December 2016 which was within the 21 day statutory timeframe and therefore an extension of time for the filing of his application was not required.

[14] In his witness statement 5, the Applicant deposed among other things that he collected the termination letter from the Post Office on 25 November 2016, adding that he did attempt to collect the item prior to that date but that he could not do so as the collection card left by Australia Post had been incorrectly completed and as he was awaiting the delivery of other items he did not think the collection card related to correspondence from the Respondent. The Applicant further deposed that he understood from his solicitor that an application for unfair dismissal was lodged on his behalf on 13 December 2016 and that at no stage had he been contacted by any Commission officer.

[15] Mr Manwaring deposed in his witness statement 6 that he was acting on behalf of the Applicant in respect of his unfair dismissal application, that he had caused an application for unfair dismissal to be filed electronically with the Commission on 13 December 2016 and that the Commission did not subsequently contact the Applicant seeking payment of the application fee. Mr Manwaring further deposed that in the absence of any contact from the Commission he asked his Personal Assistant to contact the Commission who was advised that the application had not progressed as the filing fee had not been paid, adding that the filing fee was paid shortly thereafter. Attached to Mr Manwaring’s witness statement was a copy of the unfair dismissal application which he deposed was lodged on 13 December 20167. That document had at the top of each page the following header:

“12/13/2016

[16] The document also included the following:

“Lodgement details

Lodgement date: 13/12/2016

Lodgement time: 12:00 AM AEDT

State: NSW

Lodgement ref: 12770”

[17] The Respondent submitted that the dismissal took effect on 21 November 2016 (i.e. the day that Australia Post unsuccessfully sought to deliver the termination letter to the Applicant’s home address) and that a competent application was made to the Commission on 2 February 2017, 52 days after the statutory timeframe had expired. Ms Ivens deposed in her witness statement that she had been advised by Australia Post that the termination letter had been “picked up by a driver for a delivery attempt and carded for collection on 21/11/2016” 8, while Mr Brosolo deposed in his witness statement that delivery of the termination letter “was taken on 25 November 2016 and appeared to be signed by the Applicant.”9

[18] A Full Bench of the then Australian Industrial Relations Commission stated in Beverly Jean Burns v Aboriginal Legal Service of Western Australia (Inc.) 10(ALS):

“In our view, a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated. The earliest that such communication could be said to have occurred in this case was the date upon which the letter of termination was received at her home address, i.e. 19 April 2000.” 11

[19] More recently, Deputy President Gostencnik considered the issue of when a termination takes effect in Jamie Ilves v Lawson Worldwide Forwarding Pty Ltd 12 (Ilves) where he observed:

“[23] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee.

[24] Section 386(1)(a) of the Act defines the term dismissed as a situation where a person’s employment has been terminated at the initiative of the employer or where a person is forced to resign as a result of some act of the employer. A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. That which will constitute ‘communicated’ for the purpose of providing notice will vary on a case-by-case basis and must be considered and applied taking in account the particular circumstances of a case.

[25] In Transport Workers’ Union of Australia v National Limited Dairies, Keely J said:

“In my opinion there mere posting of the letter of termination does not in itself amount to termination of the employment of the employee concerned until its contents are communicated to the employee.”

[26] In Wilson v Commonwealth of Australia (Australian Taxation Office) a Full Bench of the then Australian Industrial Relations Commission agreed with the reasoning of Keely J stating that:

“We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received. There may be a qualification to that general position. It may be that, in some circumstances, a termination is effective when its communication could ordinarily be expected to have been received. If an employer has attempted in good faith to communicate the termination and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances termination occurred despite the fact that it has not physically been communicated to the employee. Those circumstances did not, however, exist in this matter and we therefore refrain from further discussion of the point.”

[27] In Mohammed Ayub v NSW Trains (Ayub), the Full Bench noted the following:

“[41] We therefore do not consider that there is any proper exception to the general proposition established by the authorities under the WR Act and the FW Act that a dismissal cannot take effect for the purposes of those statutes before it is communicated to the employee. There is little support for the existence of any such exception which may be derived from the common law. While it is not inconceivable, as earlier stated, that a contract of employment might expressly provide that it may be terminated by the employer on notice to the employee effective from a time prior to receipt of the notice by the employee, we do not consider for the reasons we have stated that any such contract could be treated as determining the date of effect of a dismissal for the purposes of s.394(2)(a). Termination of employment in accordance with such a provision would be in contravention of s.117(1). Statutory industrial instruments such as modern awards and enterprise agreements could also conceivably allow a date of dismissal which is effectively retrospective (although we are not aware of any which actually do so), but again this could not be treated as determinative of the operation of s.394(2)(a) in a particular case such as to deprive a dismissed employee of the full time period allowed by the provision. In relation to statutory provisions governing public sector employment, we have already noted what was said by the Full Bench in ATO v Wilson about the Public Service Act 1999. We do not consider that such legislation could establish an effectively retrospective date of effect of a dismissal for the purpose of s.394(2)(a) of the FW Act unless that was made clear by express words or by necessary implication. There is no such provision in the Public Service Act as it currently stands.

[42] We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document. That is, we do not consider that s.394(2)(a) requires the strict application of a “postal delivery rule” where the employee has a legitimate explanation for not being able to read the document immediately upon delivery. The circumstances in which this may be the case are undoubtedly manifold, but for example if an employee is on an approved period of annual leave and is holidaying away from home when a dismissal letter is delivered, there is no reason to conclude that the date of dismissal is the date of delivery and not when the employee returns home and first has a reasonable opportunity to read the letter.” (Citations and footnotes omitted)

[20] The evidence in this case establishes that the Applicant did not collect the termination letter from the Post Office until 25 November 2016. Further, the Applicant’s evidence as to why he did not collect the letter before then was not disputed by the Respondent. Against that background and drawing on the decisions in ALS and Ilves, the material before the Commission supports a finding that the Applicant’s dismissal took effect on 25 November 2016.

[21] Having determined that the Applicant’s dismissal took effect on 25 November 2016, the Commission now needs to consider whether a competent application was lodged on 13 December 2016 as the Applicant contends.

[22] As previously noted, when the Personal Assistant to the Applicant’s solicitor contacted the Commission on 2 February 2017 she was advised that the Commission had no record of the application. Further, in view of the abovementioned header on the Form F2 which suggests that an application was lodged on 13 December 2016, the Commission sought advice from the Commission’s information technology area as to whether the header was evidence that an application had been lodged on that date. The response received was that the application was not lodged with the Commission on 13 December 2016 and that the document with the abovementioned header was a pre-lodgement document (that response was shared with the parties at the hearing on 7 June 2017).

[23] This does not support a finding that a competent application was made on 13 December 2016. As a competent application was lodged on 2 February 2017 and as previously noted, 48 days outside the 21 day statutory timeframe, the Commission therefore needs to consider whether there are exceptional circumstances warranting a further period for the application to be made.

Whether to allow a further period for the application to be made under s.394(2)

[24] 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.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[25] The Applicant submitted that should the Commission determine that an extension of time was required that it should find that there were exceptional circumstances for a number of reasons, including that:

he had caused his unfair dismissal application to be electronically filed with the Commission on 13 December 2016;

he had relied on the statement contained in the Form F2 that a Commission officer would contact him to pay the filing fee but that this did not occur;

it was not suggested in the application form that failing to pay the filing fee at the time of lodgement would potentially cause a risk of the application being filed out of time; and

any problem with the filing of his application was not caused by him, adding that he was blameless.

[26] In addition to the excerpts from the Applicant’s and Mr Manwaring’s witness statements referred to above, also attached to Mr Manwaring’s witness statement was a copy of the Applicant’s Form F2 without the lodgement advice attached. Under the heading “Payment Options” the document read as follows:

“[X] I am paying by credit card – Please see below:

If paying by credit card, please provide your contact details below and a Fair Work Commission officer will contact you by telephone within 3 business days from the date of lodgement.

Payer details

Who is making the payment?

[X] The Applicant [ ] The Applicant’s representative [ ] Other – please complete the details” 13 (Applicant’s details set out in the document but not shown here, emphasis as per original.)

[27] The Respondent submitted that it was not aware of the circumstances that gave rise to the delay between the date of the Applicant’s dismissal and the date when a competent application was lodged with the Commission. The Respondent further submitted that technical difficulties in lodging an application do not properly explain the delay or indicate that exceptional circumstances exist.

[28] It appears that in this case the confusion regarding the application fee payment arrangements stems from the different approaches to that issue reflected on the Commission’s website regarding the Online Lodgement Service and the Form F2 (see above). Specifically, the Commission’s website includes the following details relating to the Online Lodgement Service:

“Application fees

Some applications have an application fee. For more information about which applications have a fee, including how to apply to have the fee waived due to financial hardship, go to Fees and other costs.

If your application requires you to pay a fee, you will need to do this at the time of lodgment. You will be asked to provide payment by credit card.

If you can’t pay by credit card, or if you would prefer to pay by cash or cheque, you must lodge your application along with your fee in person or by post. Visit the Lodge an application page for further information about lodging this way.” 14 (Hyperlinks not inserted)

[29] The Full Bench in Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly 15(Atanaskovic) considered a similar situation. Specifically, Atanaskovic involved an appeal against a decision of Commissioner Ryan in respect of a general protections application in which he granted an extension of time for the making of the application in circumstances similar to those in this case. In Atanaskovic the Full Bench observed as follows:

“[25] … We consider that it was reasonably open to the Commissioner to conclude that exceptional circumstances existed, and that an extension should be granted, having regard to the following matters:

● …

● Although Ms Bedford eventually tried to lodge the application online, she used the version of Form F8 that is available on the website for other methods of lodgment, and formed the genuine belief from the last page of the form that if paying by credit card the Commission would make contact within three days to obtain the credit card details.

● Ms Bedford further genuinely believed, when she clicked the “Lodge Application” button and generated the Lodgment document, that she had lodged the application.

● …

● Ms Kelly subsequently acted consistently with her belief that the Commission would contact her for her credit card details.

● When it became apparent to her that her belief was mistaken, Ms Kelly acted immediately to re-file her application and explain what had happened to the Commission.

[26] We do not accept the appellant’s submission that these circumstances could not be characterised as exceptional because they face any person who attempts to lodge online. They fail to take into account Ms Kelly’s reliance on Ms Bedford to lodge the application, and the circumstances which led Ms Bedford to use a version of the Form F8 which is different to that generated by the online lodgment facility and which caused Ms Bedford (and Ms Kelly) to be misled about the correct method of paying by credit card …”

[30] As can be seen from the above extract, the circumstances in this case are directly analogous to those in Atanaskovic. In this case, the Applicant relied upon his solicitor to lodge his unfair dismissal application on his behalf, his solicitor’s Personal Assistant sought to lodge an unfair dismissal application electronically using the Form F2 available on the Commission’s website on 13 December 2016, the Applicant’s solicitor relied on the advice in the Form F2 regarding the arrangements for payment, in the absence of any contact from the Commission the Applicant’s representative followed up on the status of the application and upon being advised by the Commission that no record of the application could be found almost immediately lodged the application presently before the Commission.

[31] Drawing on the decision in Atanaskovic, the above analysis points to the existence of exceptional circumstances in this case.

(b) Whether the first person became aware of the dismissal after it had taken effect

[32] As discussed above, the Applicant submitted that his dismissal took effect on 25 November 2016.

[33] The Respondent contended that the Commission should find that the dismissal took effect on 21 November 2016, being the date the Applicant received the delivery card and had reasonable opportunity to become aware of his dismissal.

[34] In circumstances where the Applicant became aware of his dismissal on 25 November 2016 and a competent application was not received by the Commission until 2 February 2017, I consider this factor to be a neutral consideration.

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

[35] The Applicant did not specifically address this consideration in his submissions.

[36] The Respondent submitted that it did not become aware of any attempts by the Applicant to dispute his dismissal until his unfair dismissal application was served on it by the Commission on 7 February 2017.

[37] Based on the material before the Commission, it does not appear that the Applicant took any steps to dispute his dismissal other than lodging his unfair application. In circumstances where the Applicant’s solicitor sought to lodge that application shortly after the Applicant became aware of the dismissal, and despite the Respondent not being aware of that, I consider this factor to be a neutral consideration.

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

[38] The Applicant submitted that whilst the Respondent had made a general submission as to prejudice it provided no particulars of that alleged prejudice. The Applicant also highlighted that there had been a full investigation during which witness statements had been taken and that there was video footage of the incident that led to his dismissal. The Applicant further submitted that in the absence of particulars of the alleged prejudice no weight ought to be given to the Respondent’s submissions in respect of this consideration.

[39] The Respondent submitted that the delay caused it some prejudice due to the corresponding deterioration of witness evidence relating to the incident of 11 May 2016 which led to the Applicant’s dismissal.

[40] Noting the investigation undertaken by the Respondent and the availability of video footage of the incident that led to the Applicant’s dismissal, I consider any prejudice caused by the delay is likely to be minimal.

[41] Accordingly, this consideration does not weigh against the existence of exceptional circumstances.

(e) The merits of the application

[42] At the hearing the Applicant acknowledged that he could have handled the incident that led to his dismissal better but contended that the incident did not warrant dismissal.

[43] The Respondent submitted that the merits of the application were a neutral factor in the present case.

[44] Based on the limited material before the Commission I am unable to form a considered view as to the merits of the application.

[45] Against that background, I consider this factor to be a neutral consideration.

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

[46] The Applicant did not address this consideration in his submissions.

[47] The Respondent submitted that it did not consider this factor to be relevant in this case.

[48] Against that background, I consider this factor to be a neutral consideration.

Conclusion

[49] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 16(Nulty) in the following way:

“[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.”

[50] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I find that there are exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy. The timeframe for lodging the application is extended to 2 February 2017. Given that conciliation has previously failed to resolve the matter, the application will now be listed for mention and directions to set a timetable for dealing with the merits of the application.

Appearances:

M. Manwaring for the Applicant.

K. Ivens for the Respondent.

Hearing details:

Canberra.

2017:

June 7.

1 Exhibit 1

2 Exhibit 2

3 Exhibit 3

4 Exhibit 4

5 Exhibit 1

6 Exhibit 2

7 Ibid at Annexure A

8 Exhibit 3 at paragraph 4

9 Exhibit 4 at paragraph 6

10 Print T3496

11 Ibid at [24]

12 [2017] FWC 2993

13 Ibid at Annexure B

14 [2017] FWCFB 763

16 (2011) 203 IR 1

Printed by authority of the Commonwealth Government Printer

Christopher Thomas v ACT Government Transport Canberra and City Services T/A Action