Daniel Muldoon v Australia Post
[2020] FWC 2496
•20 MAY 2020
| [2020] FWC 2496 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daniel Muldoon
v
Australia Post
(U2020/3066)
COMMISSIONER PLATT | ADELAIDE, 20 MAY 2020 |
Application for relief from unfair dismissal – extension of time – application granted.
[1] Mr Daniel Muldoon has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Australia Post which his form F2 Unfair Dismissal Application advised took effect on 11 March 2020.
[2] The application was lodged on 16 March 2020.
[3] Mr Muldoon’s form F2 advised that the application was made within 21 days from the date of dismissal.
[4] On 5 April 2020, Australia Post lodged a form F3 Employer Response which indicated that the dismissal occurred on 10 February 2020 and raised a jurisdictional objection on the basis that the application was lodged out of time. This decision only deals with the extension of time issue.
[5] On 28 April 2020, my Associate corresponded with Mr Muldoon and Australia Post and advised that the extension of time issue would be considered at a telephone conference on 12 May 2020. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Muldoon was directed to provide a statement concerning the extension of time and any documents to be relied upon by 5 May 2020. Australia Post was invited to file any material in reply by 8 May 2020.
[6] Mr Muldoon’s position is relevantly summarised as follows:
• He followed Australia Post’s procedure and went through an internal review process.
• The unfair dismissal application was filed 21 days following Australia Post confirming its decision.
• Mr Muldoon provided a document titled ‘Board of Reference Corporation Statement In the matter of Appeal to the Board of Reference against Dismissal’ dated 24 February 2020 and a document titled ‘Board of Reference – Mr Daniel Muldoon’ dated 5 March 2020.
[7] Australia Post’s position is relevantly summarised as follows:
• The Applicant commenced employment on 14 August 2017 as a Postal Transport Officer (Van Driver) in Adelaide.
• On 31 December 2019, the Applicant was advised that a Disciplinary Inquiry would be conducted in relation to his conduct and alleged breaches of Australia Post’s ‘Our Ethics’ Policy. The Applicant was suspended with pay during this process.
• On 28 January 2020, the Applicant was provided with a letter titled ‘Notification of Disciplinary Inquiry Recommendation’ which recommended that his employment be terminated.
• On 10 February 2020, the Applicant was advised of the outcome of the disciplinary inquiry and that the Respondent had determined to terminate his employment. Australia Post contended that the letter was delivered to the Applicant’s residential address and accepted by the Applicant’s father on the same day. The letter included information about an internal review mechanism which was followed by a paragraph that stated, ‘If you wish to consider your rights in respect to alternative legal remedies including the time limits that apply under the Fair Work Act 2009, you will need to seek external advice.’
• On 14 February 2020, the Applicant lodged an application with Australia Post’s Board of Reference for an internal review of the decision to terminate his employment.
• The Board of Reference hearing was conducted on 2 March 2020 and a decision was handed down on 5 March 2020. The Board of Reference denied the Applicant’s request to be reinstated and dismissed his application.
• The Applicant did not take any further steps to contest the decision prior to lodging the unfair dismissal application on 16 March 2020, 11 days after the internal review was completed.
[8] A hearing was conducted by way of telephone conference on 12 May 2020. A sound file record of the telephone conference was kept. Mr Muldoon represented himself and Ms Kenna represented Australia Post.
[9] Mr Muldoon provided further information at the hearing, which was consistent with the documentation provided. The additional information is summarised as follows:
• He did not receive the letter of dismissal until 13 February 2020.
• He followed the advice in the letter and lodged an internal appeal on 14 February 2020.
• Despite the Board of Reference handing down its decision on 5 March 2020, he did not receive the decision until 11 March 2020.
• On 12 March 2020, he contacted a lawyer and made an appointment for 2.30pm on 16 March 2020 to receive advice (a copy of the email correspondence was provided during the hearing which confirmed the appointment).
• The meeting with the lawyer was conducted on 16 March 2020.
• The application was filed later that day.
[10] Australia Post forcefully reiterated its submissions and contended that the precedent weighed strongly against the granting of an extension of time. It conceded the dates that Mr Muldoon advised he received the dismissal letter and the outcome of the internal review.
Applicable Law
[11] Section 394 relevantly states:
“394 Application for unfair dismissal remedy
....
(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).
(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 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.”
[12] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd1 which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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.”
[13] Australia Post has urged me to reflect on past precedents relating to extension of time matters and the Australian Postal Corporation.
[14] In 2002, an extension of time was refused in the case of Schmidt v Australia Post, 2 who lodged the equivalent of an unfair dismissal application under the predecessor Act, the Workplace Relations Act 1996, 42 days outside of the 21 day statutory time limit. In this case, Australia Post’s termination letter only referred to Mr Schmidt’s right to seek an internal appeal through the Board of Reference. Commissioner Bacon made the following comments in relation to the content of Australia Post’s termination letter:
“[11] There is weight in favour of the applicant in the wording of the respondent's letter of termination which makes specific reference to one form of redress should the applicant believe his termination to be harsh, unjust or unreasonable. There is no reference to an application under the Act. It is my view that the letter of termination on this point was in need of more explanation or precision. Employees who have their employment terminated (if they are to be advised of their options for recourse) should be advised that proceedings before the Board of Reference may take longer than 21 days and that applications to the Commission need to be lodged within 21 days of the date of effect of the termination. It is also appropriate that employees be advised that should they believe their termination to be harsh, unjust or unreasonable, that they may choose to seek a review by the "Board of Reference" or make application under the Workplace Relations Act 1996 or both. Alternatively, the letter of termination should not provide any information concerning employees' rights to contest the decision to terminate.” (original emphasis)
[15] The case of Schmidt is distinguishable on the facts as the termination letter did not contain the paragraph that Australia Post rely upon in this matter, being:
“If you wish to consider your rights in respect to alternative legal remedies including the time limits that apply under the Fair Work Act 2009, you will need to seek external advice.”
[16] Australia Post specifically referred me to Smart v Australian Postal Corporation3where the Full Bench determined that there were no exceptional circumstances justifying the extension of time. The period of delay in that matter was 41 days. The applicant in Smart had been put on notice of time limits via a letter of dismissal using the same wording as sent to the Applicant in this case. The applicant in Smart contacted the Union who lodged an internal appeal on her behalf. The Respondent submitted that in Smart the employee’s failure to seek advice weighed against an acceptable reason for the delay. Whilst the Respondent’s submission is correct, the Full Bench in Smart made it clear that in each case all circumstances must be taken into account. In particular, the Full Bench commented:
“[6] … There is no evidence that she sought advice on any relevant time limit. Nor is there any evidence that the officers of the CEPU advised her that she could pursue a remedy under the Act after the Board of Reference proceedings. The written submission merely says, in effect, that the appellant was not advised of a requirement to pursue an unfair dismissal application concurrently with the Board of Reference application. If the submission had been that the appellant had sought advice about her remedies and any time limits and had been given incorrect or misleading advice the situation might have been different. In the circumstances it would not be appropriate to disturb the Commissioner’s finding that there was no acceptable explanation for the delay.
[7] Some of the Commissioner’s remarks might indicate that in his view any failure on the CEPU’s part to properly advise the appellant of her rights and the applicable time limits should weigh against the appellant herself. Because the situation is unclear it is necessary to record our view. As Senior Deputy President Acton noted in Norman v Australian Postal Corporation it is reasonable for employees to expect their union to advise them correctly with respect to termination of employment matters. A failure by a union to do so would not normally weigh against the employee. However, in circumstances where the employee is on notice that a time limit is applicable failure to seek advice on what time limits might apply will weigh against a finding that there was an acceptable reason for the delay in lodgment. In each case, of course, all of the circumstances must be taken into account. In this case, for the reasons, we have indicated, we are satisfied that the Commissioner’s conclusions should not be disturbed.” (citations omitted)
[17] In the present case before me, the Applicant did not have the benefit of advice prior to the lodging of the internal appeal. The Applicant did, however, once he had received the decision of the internal appeal, immediately seek legal advice without delay and promptly lodged the unfair dismissal application shortly after. On this basis, Smart is distinguishable.
[18] Australia Post also referred me to Buellsbach v Australian Postal Corporation T/A Australia Post 4 where Commissioner Johns determined there were no exceptional circumstances justifying an extension of time. The facts are analogous in that the employee received a letter similar to that in the current case before me and undertook to appeal the termination decision through the internal appeal process. The employee in Buellsbach lodged the application 42 days outside of the 21 day time limit. However, Buellsbach is distinguishable on the facts as the Applicant did not lodge an unfair dismissal application until 20 days after he received the outcome of the internal appeal. Commissioner Johns concluded that the case boiled down to the Applicant’s reliance on his paid agent to take action, with representative error not being made out.
Consideration
[19] It is clear that Mr Muldoon was dismissed with effect from 10 February 2020 and became aware of the same on 13 February 2020. The Application should have been filed not later than 2 March 2020. This unfair dismissal application by Mr Muldoon was made 14 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
[20] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
The reason for the delay
[21] Mr Muldoon accessed the internal review mechanism on the day after he became aware of his dismissal.
[22] It appears that the Applicant believed that he had 21 days from the conclusion of Australia Post’s internal review process to lodge an unfair dismissal application. There is no basis for this mistaken belief, particularly because the termination letter expressly advised him to seek external advice as to the time limits that apply under the Act. Australia Post relies on the decision in Smart v Australian Postal Corporation.5
[23] The cases referred to by Australia Post appear to predate the decision of Long v Keolis Downer T/A Yarra Trams,6 where the Full Bench commented:
“[14]The effect of an internal appeal process depends on the facts in each case, in particular upon the terms of such a process and what was communicated to the employee.”
[24] Whilst Mr Muldoon did not appear to appreciate the import of the crucial paragraph relied upon by Australia Post, it can be seen that he acted promptly to contest the dismissal at each stage albeit he did not lodge prior to the completion of the internal review process.
[25] In the circumstances, I accept that Mr Muldoon has explained the delay between 2 March and 5 March 2020 (when the internal review was completed).
[26] Having received the outcome of the internal review on 11 March 2020, the Applicant made an appointment for legal advice the next day. He attended a meeting with the lawyer on 16 March 2020 and the application was lodged the same day at 7.04pm.
[27] In my view, Mr Muldoon has explained the delay between the receipt of the internal review on 11 March 2020 and the lodgement of this application, immediately after seeking legal advice, on 16 March 2020.
[28] Mr Muldoon has explained the entirety of the delay. This weighs in favour of the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
[29] Mr Muldoon first became aware of the dismissal on 13 February 2020. This was conceded by Australia Post.
Any action taken by the person to dispute the dismissal
[30] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.7
[31] Mr Muldoon used an internal review mechanism to contest the dismissal. This process concluded on 5 March 2020 and Mr Muldoon was advised of the outcome on 11 March 2020. As previously stated, he sought a legal appointment which was confirmed on 12 March 2020, he attended the appointment on 16 March 2020 and lodged the unfair dismissal application that night at 7.04pm.
[32] Mr Muldoon’s actions in disputing the dismissal weighs in favour of the granting of an extension of time.
Prejudice to the employer (including prejudice caused by the delay)
[33] Prejudice to the employer will weigh against granting an extension of time.8 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.9 A long delay gives rise “to a general presumption of prejudice”.10
[34] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.11
[35] The Respondent submits that it will be prejudiced if the Commission exercises its discretion to allow the Application, as a result of the imposition of a second process of analysis and scrutiny in respect of its decision to terminate. That the Respondent offered an internal review mechanism is not a suitable basis for contending prejudice exists. Based on the information before me, I am satisfied that there would be no greater prejudice to the Respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the Respondent is a neutral consideration.
The merits of the application
[36] In terms of the merits of the application, there is dispute over the allegations and insufficient evidence for a concluded view to be reached. This is therefore a neutral factor.
Fairness as between the person and other persons in a similar position
[37] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd12 considered this criterion and said (at [41]):
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
[38] On the basis of the material before me I am not satisfied that the issue of fairness as between Mr Muldoon and other persons in a similar position is a relevant consideration in this matter. As previously mentioned, each case turns on its facts.
[39] Because it is not a relevant factor, it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
[40] Having considered the factors above, I am satisfied that Mr Muldoon’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted, Directions will be issued in relation to the hearing of the merits of the matter.
COMMISSIONER
Appearances (by telephone):
D Muldoon the Applicant.
B Kenna on behalf of the Respondent.
Hearing (Conference) details:
2020.
Adelaide:
May 12.
Printed by authority of the Commonwealth Government Printer
<PR719324>
1 [2011] FWAFB 975
2 PR915006
3 [2008] AIRCFB 124 at [7]
4 [2015] FWC 3848
5 [2008] AIRCFB 124 at [7]
6 [2018] FWCFB 4109
7 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
8 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
9 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
10 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
11 Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]
12 [2016] FWCFB 6963
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