Daniel White v Downer EDI Works Pty Ltd
[2022] FWC 2313
•31 AUGUST 2022
| [2022] FWC 2313 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daniel White
v
Downer EDI Works Pty Ltd
(U2022/7111)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 31 AUGUST 2022 |
Application for an unfair dismissal remedy – extension of time – application posted within time but not received – flooding event – application re-submitted – exceptional circumstances – extension granted
Daniel White (Mr White or the applicant) has applied to the Commission under s 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to a dismissal by Downer EDI Works Pty Ltd (Downer EDI, the respondent or the employer) on 16 June 2022.
Mr White’s application is dated 14 July 2022 and was received by email that day.
The application is seven days outside the statutory 21-day period for making unfair dismissal claims. Mr White submits that an extension of time should be granted.
I conducted a directions hearing on 22 August 2022.
I heard the extension of time issue on 29 August 2022.
Mr White was self-represented and assisted by Ms White. Downer EDI was internally represented.
Mr White gave evidence on the response given to question 1.6 of his application and on materials he filed.[1] His evidence was plausible. His recall was reasonably sound, particularly once prompted. Broadly speaking, Mr White’s evidence was a reliable basis for fact-finding.
Mr White included in his materials a sworn statutory declaration from his brother-in-law, Luke O’Carrigan. Mr O’Carrigan was not made available for questioning, largely due to Mr White’s inexperience in litigation and despite the Notice of Listing indicating that “persons in whose name a statement is filed must attend the hearing to give sworn evidence on their statement”.
By consent, I admitted Mr O’Carrigan’s sworn statement into evidence[2] subject to a discounted level of weight afforded to it, given that he was not available for cross examination. I take the statement into account but apply this discount. It has some corroborative value but I have primary regard to the direct evidence of Mr White in determining the factual narrative.
Facts
I make the following findings.
Mr White is a resident of Faulconbridge, New South Wales in the Lower Blue Mountains. He was employed by Downer EDI from April 2020 until dismissed on 16 June 2022.
Mr White considered his dismissal unfair. At the time of dismissal (16 June 2022) he told company officers that he intended to challenge their decision. He began to consider options to take action in the Commission. In the days that followed his dismissal, Mr White consulted and received assistance from the Electrical Trades Union (Union), a division of the CEPU.
Mr White says that with the assistance of the Union and his wife, by Wednesday 29 June 2022 (day thirteen) he completed a hard copy of the Commission’s Form F2 – Unfair Dismissal Application. Mr White was aware that a 21-day statutory time limit applied.
Mr White says that he decided to post his application rather than send it online because he was attaching a document and had been working off a hard copy. He purchased an Australia Post express post envelope and addressed the envelope to the Commission’s Sydney registry. On 29 June 2022 Mr White placed the completed application on the dashboard of his motor vehicle, intending to post it when convenient.
Mr White’s brother in-law (Mr O’Carrigan) operates a business in the town of Windsor in the Hawkesbury region of New South Wales, some thirty minutes from where Mr White lives. At around the time of completing his application, a severe rain event was forecast for parts of New South Wales including the Hawkesbury. In the days that followed 29 June 2022, Mr White assisted his brother-in-law to move stock from the business to safer ground.
On Saturday 2 July 2022, sixteen days after dismissal and whilst assisting his brother-in-law in the town of Windsor, Mr White and Mr O’Carrigan stopped for lunch. During lunch, Mr White took the envelope from his motor vehicle and posted it at an Australia Post mailbox adjoining nearby shops.
Mr White did not retain a copy of the application. From the envelope, he peeled off the tracking reference number but did not produce those details at the hearing.
Floods occurred in parts of New South Wales from 3 July 2022, including in the Hawkesbury region. Parts of Windsor were flooded.
On 14 July 2022, twelve days after posting his application and having heard nothing, Mr White telephoned the Commission. He enquired about the status of his application. He was advised by an administrative officer that no record existed of an unfair dismissal application made by him. Mr White said that his application may have been lost in the floods. Mr White was advised by the administrative officer to submit a fresh application online as he was out of time.
That same day, at 3.51pm on 14 July 2022, the Commission received an unfair dismissal application by email from Mr White dated 14 July 2022.
No hard copy of an application by Mr White has been received by the Commission.
Submissions
Mr White
Mr White submits that his application dated 14 July 2022 was the second application concerning his dismissal.
Mr White submits that the first application was completed on 29 June 2022 and posted on 2 July 2022, sixteen days after the dismissal.
Mr White submits that he acted in good faith in posting his application, that postal applications are lawful and permitted, and that he was not responsible for his initial application not being received.
Mr White submits that in all probability his initial application was lost in the floods which occurred on and after 3 July 2022.
Mr White submits that had his application not been lost in the floods, it would have been received by the Commission within time.
Mr White submits that he initiated contact with the Commission in a timely manner and acted promptly to re-file once advised that no application had been received.
Mr White submits that these circumstances are exceptional, warranting an extension of time.
Mr White submits that should his application not be allowed to proceed, an injustice would accrue because he would be denied his day in court on a dismissal which he considers to be unfair.
Mr White submits that his application should come as no surprise to Downer EDI because he put its officers on notice on the day of his dismissal that he considered the decision unfair and would be taking advice on the matter.
Downer EDI
Downer EDI submit that Mr White had alternate and more reliable methods of making an application than post, yet he chose an unreliable method.
Downer EDI submit that it is implausible that Mr White posted his application from a flood prone area as he does not live in Windsor or the Hawkesbury. In any event, Downer EDI submit that Mr White could have, but failed to, post his application on 29 or 30 June or 1 July from his home-town in an area not prone to floods.
Downer EDI submit that even if Mr White did post an application on day sixteen from Windsor, it was his responsibility to ensure that it was received within time. The requirement is not for the application to be posted within the 21-day time limit but received by the Commission within that time.
Downer EDI submit that Mr White provided only five days between the date of alleged posting and the time limit expiring. This was unreasonably short given that the Australia Post website provides guidance regarding indicative delivery times for domestic letters and parcels. For letter deliveries between locations within the same state the website states that the estimated delivery time is up to five business days.
Downer EDI submit that Mr White could have, and should have, filed his application before day sixteen.
Downer EDI submit that Mr White delayed until a week after the statutory deadline before contacting the Commission to follow up the status of his application.
Downer EDI submit that the circumstances are not exceptional.
Consideration
Section 394 of the FW Act provides:
“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.”
An out-of-time application can only proceed if the applicant can establish that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[3]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[4] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[5]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[6]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[7]
Status of the application
Mr White’s application is out of time. Although the Fair Work Commission Rules 2013 (FW Rules 2013) permit an application to be “lodged” by “sending the document by post to an office of the Commission” it is not “made” within the meaning of s 394(2) until this occurs. A mailed application is not made when drafted, dated or posted.
In the case of a posted application, the making occurs when the postal process is complete and the posted application is received, within the language of r 13(2)(b) of the FW Rules 2013, by “an office of the Commission”. Only when received in this sense is an application “made”.[8]
Mr White’s application was not “made” when posted on 2 July 2022. The application posted that day was never “made” because it was never received.
The application that was “made” within the meaning of the FW Act was the re-filed online application dated and sent on 14 July 2022.
Having not been “made” until 14 July 2022, the application is seven days outside the statutory 21-day time period for filing unfair dismissal claims (8 July to 14 July inclusive). If it is to proceed, an extension of time is required.
I now consider the factors set out in s 394(3).
Reason for the delay (section 394(3)(a))
The reason for delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation.[9] The absence of an explanation for any part of the delay will usually weigh against an applicant. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[10]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[11]
The period of delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for the delay is acceptable or credible.[12]
The explanation for delay advanced by Mr White is as follows:[13]
“An original application was mailed to the Commission on 2 July 2022 from Windsor. By 3 July 2022 many parts of the Hawkesbury were underwater due to the recent flooding events. I contacted the Commission on 14 July 2022 to see if the application had been received as I had not heard anything- I was advised they had not received it as yet so that in the event that the original application had been lost/ damaged I should submit one online as soon as possible as it was now over the 21 day period. If the original application should appear this one will obviously become redundant.”
This evidence is plausible.
The evidence establishes, and it is not seriously contested, that Mr White placed his application in an Australia Post mailbox in the township of Windsor at lunchtime on 2 July 2022. That was day sixteen after dismissal. I take judicial notice of the fact that severe flooding occurred in regional New South Wales including in and around parts of Windsor in the days that followed.
Commission records indicate that no such posted application has been received by the Commission.
It is plausible that, in a flood, mail in post boxes or in transit is lost or irretrievably damaged such that it cannot be delivered to the addressee.
I find on the balance of probabilities that the unfair dismissal application dated 29 June 2022 and posted by Mr White on 2 July 2022 was lost or irretrievably damaged by flood such that it could not be, and was not, delivered to the Commission in the ordinary course of an express post mail delivery.
I consider this to be a reasonable explanation for delay weighing in favour of a finding of exceptional circumstances.
I do not accept the submission that Mr White ought to have used a more reliable method of lodgement. The FW Rules 2013 permit filing by post. It is a lawful method of lodgement, amongst others. As a general principle, an applicant should not be disadvantaged by using a lawful method of lodgement.
I accept that an applicant lodging by post is required to take into account that an application is not “made” (within the meaning of the FW Rules 2013) until received by the Commission. This means that an applicant posting an application should take into account the method of postage used and allow a reasonable time for the delivery and receipt of mail in the ordinary course. I am satisfied that Mr White did so. He used the express post service, not ordinary mail. He posted on day sixteen, allowing five days for delivery and receipt of an express post envelope. These were adequate allowances and do not mitigate against the reasonableness of his explanation.
I also do not accept that Mr White delayed unreasonably in following up the status of his application. He did so within a fortnight of posting his application. It was in this period that the delay period occurred. His contact with the Commission was at his initiative. The very day that he made contact with the Commission and was advised to refile, he did so.
The explanation for the delay is reasonable. It weighs in favour of a finding of exceptional circumstances.
Awareness of the dismissal taking effect (section 394(3)(b))
Mr White was aware of his dismissal taking effect on 16 June 2022, and its reason.
In the circumstances, this is a neutral consideration.
Action taken to dispute dismissal (section 394(3)(c))
Mr White held a view at the time of dismissal that his dismissal was unfair.
I accept Mr White’s evidence that he informed officers of the employer on 16 June 2022 that he considered its decision to be unfair, and that he would be taking advice on the matter.
As a consequence, the making of an unfair dismissal claim ought not have come as a surprise to Downer EDI.
In the circumstances, this weighs somewhat in favour of granting an extension of time.
Prejudice to the employer (section 394(3)(d))
Downer EDI did not advance any specific prejudice should an extension be granted. A claim would have to be responded to, involving time and cost. That notwithstanding, the nature of the prejudice in this matter is not unique.
However, the absence of prejudice would not itself be a reason to grant an extension.[14]
In the circumstances, this is a neutral consideration.
Merits (section 394(3)(e))
The dismissal appears to concern the application of the employer’s drug and alcohol policy in circumstances where a non-negative result from a random drug test arose which was confirmed by a subsequent positive test.
Mr White claims that the test result was the caused by prescribed medicinal use of a drug.
As I have not heard evidence on these questions or the explanation for the test result, it is not possible to express even a provisional view on the strength of the respective cases.
In this matter, this is a neutral issue.
Fairness between persons in similar position (section 394(f))
This factor does not arise in this matter.
Conclusion
Even though a delay of seven days is not inconsiderable in the context of a 21-day statutory time limit, the explanation for delay is reasonable.
The circumstances in which a posted application is lost or rendered undeliverable due to a natural weather event is unusual and, in the relevant sense, exceptional.
No statutory factors weigh against granting an extension of time. All either weigh in favour, are neutral or not relevant.
There are no discretionary reasons not to extend the time. Mr White did not materially contribute to the delay. He lodged his application in a timely manner and followed up its progress without undue delay.
There being exceptional circumstances, the time for lodgement of application U2022/7111 is extended so as to permit it to be further heard and determined.
It will now proceed to conciliation.
An order[15] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
Mr D White with Ms M White, on his own behalf
Ms L Gordon with Mr W Ezaty and Ms K Batchelor, of and on behalf of Downer EDI Works Pty Ltd
Hearing details:
2022
Adelaide (by video)
29 August 2022
[1] DW1 to DW4
[2] DW3
[3] Smith v Canning Division of General Practice[2009] AIRC 959
[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[5] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[6] [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[7] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[8] Hong Ye v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 327, 330 and 332
[9] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, at [35]-[45]
[11] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[12] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[13] F2 paragraph 1.6
[14] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[15] PR745352
Printed by authority of the Commonwealth Government Printer
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