Elizabeth Clarke v Bmelc Pty Ltd T/A Stratton Early Learning Centre

[2020] FWC 5868

[2020] FWC 5868

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elizabeth Clarke
v
BMELC Pty Ltd T/A Stratton Early Learning Centre
(U2020/13729)

DEPUTY PRESIDENT BEAUMONT PERTH, 20 NOVEMBER 2020

Application for an unfair dismissal remedy – jurisdictional objection – application lodged out of time – no exceptional circumstance.

[1] Ms Elizabeth Clarke (the Applicant) applied for an unfair dismissal remedy having been dismissed from BMELC Pty Ltd T/A Stratton Early Learning Centre (the Respondent) on 24 September 2020. The Respondent objected to the application on the basis that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with that objection.

[2] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other three preliminary matters are not presently relevant.

[3] The Applicant concedes that her application was filed one day after the statutory requirement. However, she attributes the delay to several factors. In short, those factors are:

a) she suffered emotional and financial stress from losing her employment;

b) she was providing support to a parent post an operation;

c) she completed her unfair dismissal application online on the weekend of 10-11 October 2020, but the web browser purportedly crashed without saving the application;

d) following that weekend, she was engaged in part-time employment during the week and therefore did not lodge the application;

e) she chose to complete and lodge the application on the final day that it could be filed but on the evening of trying to electronically file the application she received a server error message; and

f) she chose to contact the Commission the following day, after the statutory deadline for filing the application.

[4] It is not contested that the Applicant’s application was made out of time. However, for the Applicant’s application to now proceed, it is necessary for her to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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. 1

[5] The issue before me is whether the circumstances that the Applicant has described are exceptional, taking into account the criteria in s 394(3), and whether it is fair and equitable for an extension to be granted.

Consideration

[6] There is discretion to extend the 21-day period set by the Act for making an application for an unfair dismissal remedy. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion. 2

[7] In the decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty), 3 the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains a discretion to grant or refuse an extension of time.4 Whilst Nulty considered the general protection provisions of the Act, its reasoning is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[8] The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 5 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, can be considered exceptional.6

[9] In the recent decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters, 7 the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 8

[10] At the commencement of the hearing, the parties were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were ‘exceptional circumstances’.

Reasons for the delay in filing the application

[11] Consideration turns to whether the Applicant has provided a credible reason for the whole of the period that her application was delayed. 9 The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.10 It does not include the period from the date of the dismissal to the end of the 21-day period. The circumstances from the time of the dismissal, however, are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.11

[12] The Applicant provided several reasons for the delay in lodging her application.

[13] First, the Applicant gave evidence of experiencing great stress and anxiety in the period between the dismissal and the lodging of her unfair dismissal application. Inevitably, losing employment may cause distress. I appreciate that the Applicant’s circumstances were difficult, yet they are not exceptional. Further, the Applicant was not so incapacitated that she was unable to arrange and secure alternative employment during the period.

[14] On that point, and second, securing alternative employment, and working on a part-time basis during the period in which an unfair dismissal application can be made in accordance with the statutory timeframe, does not constitute an exceptional circumstance. In the ordinary course, it is reasonable to presume that the loss of employment would prove to be an impetus for diligently seeking out new work opportunities. That the Applicant undertook this very course is understandable, but not exceptional.

[15] Third, the Applicant spoke of providing care for a parent post-operatively. Whilst one cannot underestimate the important role of being a carer, on any objective level, the evidence does not demonstrate that such activity was so all-encompassing that the Applicant was incapable of complying with the requisite statutory deadline. As it was, the Applicant’s caring responsibilities did not preclude her from seeking out alternative employment.

[16] Fourth, the Applicant spoke of the difficulties encountered when she had populated the fields relevant to her unfair dismissal application on the Fair Work Commission website. While the Applicant expressed that the web browser crashed on that particular occasion (the weekend of 10-11 October 2020), at hearing she clarified that it was merely the case that on having completed the application, but having not filed it, the application did not save. Again, this does not constitute an exceptional circumstance.

[17] It was not until 15 October 2020, that the Applicant again attempted to submit her unfair dismissal application and make payment of the requisite fee. The Applicant stated that when she pressed the submit button on the online application form, she received a server error message and was unable to submit the application. The Applicant said that she rang the Commission the next morning and was advised to lodge the application and provide an explanation as to why it was late.

[18] At the hearing, the Applicant purported that she had taken a photo of the computer screen when she received a server error message. The Applicant had not filed the photo as part of her evidence. However, leave was provided for her to submit the photo after the hearing had concluded.

[19] In pursuing such course, I considered s 591 of the Act which provides that ‘[T]he FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter)’. Although the rules of evidence do not apply in the strictest sense, 12 as a Full Bench noted in the decision in Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union:13

While the Commission is not bound by the rules of evidence that does not mean that those rules are irrelevant. As the then President of the Industrial Relations Commission of Western Australia said in respect of a similar provisions in the then Industrial Relations Act 1979 (WA):

However, this is not a licence to ignore the rules. The rules of evidence provide a method of enquiry formulated to elicit truth and to prevent error. They cannot be set aside in favour of a course of inquiry which necessarily advantages one party and necessarily disadvantages the opposing party (R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 Evatt J. at 256 (dissenting)). The common law requirement that the Commission must not in its reception of evidence deny natural justice to any of the parties acts as a powerful control over a tribunal which is not bound by the rules of evidence.

[20] In short, the rules of evidence provide general guidance as to the manner in which the Commission chooses to inform itself. In the circumstances, having permitted the Applicant to adduce further evidence, the Respondent was provided with the opportunity to file submissions in light of the evidence.

[21] The Respondent submitted that the photo taken of the ‘server crash message’ purportedly received by the Applicant on 15 October 2020, did not weigh in favour of the Applicant. This was because the photo did not evince that the server crash message was in fact received on the 15 October 2020, as purported by the Applicant.

[22] The Respondent’s next submission was that if the server crash message was received by the Applicant on the 15 October 2020 as purported, this still did not weigh in favour of the Applicant. It was apparent from the evidence, said the Respondent, that the Applicant did not make any immediate attempts to lodge the Application after receiving the server crash message. Instead, the Applicant conceded that she waited until the following day (one day after the statutory deadline) to take any further action in an attempt to file the Application, with no reason being provided that can be considered as exceptional circumstances for the delay.

[23] Following the receipt of the Respondent’s abovementioned submissions, the Applicant wrote to Chambers. She informed Chambers that the date and time the photo was taken was information available in the meta-data on her phone. As such, she was willing to submit that information for examination in a hearing.  The Applicant also noted that there should be some evidence of the crash in the web server logs, but she did not have access to those.

[24] It had been clearly explained to the parties that the purpose of the hearing was to present their cases regarding the jurisdictional objection and that was the time for both Applicant and Respondent to give their evidence. Given the Applicant was self-represented, an opportunity was provided to the Applicant to adduce evidence of the photo subsequent to the conclusion of the hearing. However, that direct evidence did not shed light on the time the second application was made (and the server error received). While the Applicant now claimed that there was further evidence in existence which would support her case regarding the timing of the second application, I declined to receive such evidence.

[25] Ultimately, the Commission is obliged to perform its functions in a manner that is fair and just. The Applicant had been provided with leave to adduce evidence subsequent to the hearing - to make good her case concerning the time the server error message was received (and the inference that this was when the second application was made). On receipt of the Respondent’s submissions, the Applicant thereafter, sought to adduce further evidence. In all of the circumstances, to permit the ongoing receipt of evidence after the conclusion of the hearing was, in my view, not fair and just. It is not the case that a party can continue to press their argument and seek to provide further evidence when flaws are identified after their case has come to rest. There does, after all, have to be an endpoint.

[26] The Commission should consider and thoroughly weigh all relevant material and where appropriate draw reasonable inferences. Relevant considerations are found in ‘material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined’. 14 The photo adduced provides no indication of a temporal reference. While it shows a server error message – no time stamp is observed. On any logical basis, the photo does not show the existence of a fact regarding the time the second application was made. Its probative value in this respect is negligible.

[27] In Mr Christopher Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery (Joy Manufacturing),  15 the Vice President accepted the evidence of the applicant that he made an attempt, a day or two before the 14-day period expired, to submit an online application for an unfair dismissal remedy through the FWA website. The applicant expressed that he encountered difficulties with that process and, despite at least two attempts, was unable to successfully file his application in that manner. The Vice President determined that there were exceptional circumstances in the case; namely, a bona fide attempt to file an application through the FWA web site within time, which was unsuccessful for reasons beyond the understanding of the applicant.

[28] While in the case Joy Manufacturing the Vice President appears to have been content to accept the applicant’s evidence, it does not follow that in every case that approach will be adopted. Much will turn on all circumstances of the case.

[29] The application was one day late. However, as noted, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances. 16

[30] Out of the factors the Applicant has relied upon for the reason for the delay, the technical issue concerning the ‘server’ is, in my view, the only compelling factor. Notwithstanding, the context is such that the Applicant has in effect asked me to accept her word that she attempted to submit her online application on the last day within the statutory period and was thwarted by technical issues with the online application process. Further, she raised this issue the very next day with Commission staff. I am not content to do so for the following reasons.

[31] At all times it was open to the Applicant to provide direct evidence showing the time when she attempted to submit her second application. She did not do so. While the photo supports the Applicant’s evidence that she received a server error message, it does not illuminate when this occurred – that is within or outside of the statutory timeframe. By way of observation only, neither party provided submission or evidence as to whether the computer ‘glitch’ was an error generated at the Applicant’s end or the Commission’s website.

[32] The Applicant refers to having spoken to a Fair Work Commission staff member concerning the issue with the submission of her application the day after the conclusion statutory period. Again, there is no direct evidence of this. In this respect, it is not the role of the Commission to investigate a matter to see whether it can locate evidence to support the Applicant’s contention. While I have considered that the Applicant submitted the unfair dismissal application one day late, and purports to have done so immediately following advice received from a Commission staff member (the Form F2 is time stamped 16 October 2020 9:53AM), again there is no direct evidence of such discussion taking place.

[33] Taking into account these circumstances that I am required to take into account under s 394(3), I am satisfied that there are not exceptional circumstances in this case. On balance, I am not satisfied that there was a bona fide attempt to file an application through the Commission website within time, which was unsuccessful for reasons beyond the Applicant’s control.

[34] I have considered the delay as the period beyond the 21-day period. However, regard has been had to the circumstances from the date the dismissal took effect. I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the whole period of the delay in lodging her unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

Whether the Applicant became aware of the dismissal after it took effect

[35] I have considered all of the evidence and submissions and am satisfied that the Applicant was notified of the dismissal on the same day that it took effect notwithstanding the Applicant’s submissions to the contrary. The Applicant has submitted that the notification of termination on 24 September was purely verbal, and thus not sufficient to cause termination under the terms of the National Employment Standards. However, I am of the view that the dismissal took effect on 24 September 2020, as this was the day the dismissal was communicated to the Applicant. This factor is therefore a neutral consideration.

Action taken to dispute the dismissal

[36] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 17 I have considered all submissions and the evidence in this respect. The Applicant did not dispute her dismissal. This circumstance does not weigh in favour of an extension of time.

Prejudice to the employer

[37] I cannot identify any particular prejudice that the Respondent would accrue if an extension of time were to be granted notwithstanding the Respondent’s submissions to the contrary.

[38] I am unpersuaded that the Respondent would suffer prejudice. I consider this to be a neutral factor in the present case.

Merits of the application

[39] The nature of the matter is such that consideration must be given to whether the application was made within the time period required in s 394(2) and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.

[40] In Kornicki v Telstra-Network Technology Group, 18 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said:

If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit. 19

[41] Concerning the substantive application, the merits have not been fully tested. This is not out of the ordinary. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to the applicant to lodge his application. 20

[42] The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded. I consider this to be a neutral factor

Fairness between the person and other persons in a similar position

[43] The Deputy President in Morphett v Pearcedale Egg Farm, 21 considered this criterion and said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission. 22

[44] The Respondent submitted that the Applicant had not particularised any convincing reason or reasons for the delay, and should the Applicant be granted an extension of time based on the reasons provided for the delay, the Applicant would be significantly advantaged in relation to other persons in a similar position to the Applicant. This, said the Respondent, was because the extension would have been granted in circumstances which are not outside the ordinary course and therefore, are not exceptional circumstances. The Applicant’s submissions were not on point.

[45] I have traversed the case of Joy Manufacturing when arriving at my decision. In my view, Joy Manufacturing turns on its own facts. It does not stand for a broader proposition that a party is to be believed on face value when purporting a technical glitch resulted in the late submission of their unfair dismissal application.

Conclusion

[46] Having considered the matters referred to in paragraphs [11] – [45] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for the Applicant’s application to be made.

[47] There is no satisfactory explanation for the whole period of the delay in making the application and the other factors are predominantly neutral. In this respect, the totality of the evidence is insufficient to ground a finding that the Applicant’s circumstances were out of the ordinary course, unusual, special or uncommon. Furthermore, I do not consider that it would be fair and equitable to grant an extension.

[48] The application for unfair dismissal is therefore filed outside the time allowed by the Act and is dismissed. An Order 23 will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Ms Elizabeth Clark, Applicant;
Joanne French for the Respondent.

Hearing details:

2020;
Perth;
November 3.

Printed by authority of the Commonwealth Government Printer

<PR724204>

 1   Fair Work Act 2009 (Cth) s 394(3).

 2   Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989 [20].

 3   [2011] FWAFB 975.

 4 Ibid [15].

 5 Ibid [13].

 6   Ibid.

 7   [2018] FWCFB 901.

 8 Ibid [38].

 9   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 408-9.

 10   Biliana Henderson v Hoban Recruitment Pty Ltd T/A HOBAN Recruitment[2016] FWC 5041 [10].

 11   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 [29] – [31].

 12   Mr Glen Mackie v BHP Coal Pty Limited[2013] FWCFB 8210.

 13 (2004) 143 IR 354 at [48]-[50].

 14   Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, 689, Deane and Evatt JJ.

 15   [2010] FWA 1394.

 16   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 [29] – [31].

 17   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 18   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 19   Ibid.

 20   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Ms Kristen Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899.

 21   [2015] FWC 8885.

 22 Ibid [29].

 23   PR724761