Elizabeth Price v Coles Supermarkets T/A Coles

[2017] FWC 326

[2017] FWC 326

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elizabeth Price
v
Coles Supermarkets T/A Coles
(U2016/12619)

COMMISSIONER CRIBB MELBOURNE, 17 JANUARY 2017

Application for relief from unfair dismissal - jurisdiction - extension of time.

[1] Ms Elizabeth Price (the Applicant) has made an application for an unfair dismissal remedy in relation to her dismissal by Coles Supermarkets (Australia) Pty Ltd T/A Coles (the Respondent, Coles) on 15 September 2016. The application was made under section 394 of the Fair Work Act 2009 (the Act).

[2] The application was lodged outside the statutory time limit, on 17 October 2016. This was eleven days outside the requisite 21 day timeframe after the dismissal took effect. Coles objected to the application on the grounds that the application was out of time. Coles withdrew its jurisdictional objection following receipt of a report from the Fair Work Commission’s (FWC, the Commission) IT Department. This report had been requested by the Chambers of the Unfair Dismissal Panel Head and the IT Department was requested to provide a report on the list of email addresses that sent correspondence to [email protected] for the period 5.00 p.m. to 7.00 p.m. on 6 October 2016.

[3] The Commission is required, notwithstanding the withdrawal of Coles’ jurisdictional objection, to make a determination itself in relation to the extension of time application by Ms Price.

Legislative framework

[4] Section 394 of the Act sets out the requirements for making an application and also the basis on which an extension of time may be granted. Section 394(3) is as follows:

“(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.”

[4] I will deal with each of the factors in turn.

Section 394(3)(a) - reason for the delay

[5] In her witness statement 1, Ms Price stated that:

• On 23 September 2016, she sought legal advice in relation to what she believed was her forced resignation. She was advised to lodge her unfair dismissal claim by midnight on 6 October 2016. 2



• Her mother, with whom she lives, does not have a computer at home. She (Ms Price) does not have an email address in her name. 3



• On Thursday, 6 October 2016, at about 5:15 p.m., she and her mother went to the Port Melbourne Library, having booked a library computer, with the intention of lodging her unfair dismissal application. 4



• She and her mother found the unfair dismissal form on the FWC website, printed it and filled it out. 5



• Her mother asked the librarian Ms Dias to help them as they were not confident in using computers. Ms Dias showed them how to scan the form directly to the FWC. All three of them carefully checked the FWC’s email address before sending it by email through the scanner. 6



• Because neither she nor her mother had an email address, it was not possible to email a copy of the claim to themselves. 7



• She believed at the end of that process that the unfair dismissal form had been sent successfully to the FWC. 8



• She was shocked and upset when she heard from her mother that the FWC could not find any record of having received her application on 6 October 2016. 9



• She and her mother went in person to the FWC on 17 October 2016. Her mother lodged the application again and noted that they had previously lodged it on 6 October 2016. 10

[6] Mrs Price (Ms Price’s mother) also provided a witness statement 11 and confirmed the statement of her daughter, as set out above. In addition, Mrs Price said that:

• Having sent the application through the scanner to the FWC, nothing came back indicating that the email had not worked. 12



• It was only after speaking with JobWatch again on the evening of 12 October 2016, that she realised that she should call the FWC to check that the application had been received. 13



• On Friday 14 October 2016, she telephoned the FWC and was informed that they could not find the claim. 14

[7] Ms Dias, Library Officer at the Port Melbourne Library, provided a Statutory Declaration. 15 In the Statutory Declaration, Ms Dias declared that:

• At approximately 5:15 p.m. on Thursday 6 October 2016, a mother and daughter, whom she now knows to be Robyn and Elizabeth Price, asked her for help. 16



• Mrs Price explained to her that they needed to lodge an unfair dismissal application with the FWC and it needed to be in that day. Mrs Price also said that they did not have a computer at home and were not comfortable using computers and so they needed her help to print out and then send the application by email. 17



• She helped them by setting them up on a computer. The records of Ms Price’s computer reservation show that Ms Price booked the computer from 5:17 p.m. to 6:43 p.m. 18



• They found the relevant form on the FWC’s website and printed the form which Mrs Price filled out by hand. 19



• She then showed them how to scan the form to the FWC. She knew that this was a very important document for them and she remembers that they triple checked the FWC’s email address before sending it by email through the scanner. 20



• There is no way of checking on the scanner whether the email has been sent successfully as it doesn’t give you a receipt. 21



• She believed that the unfair dismissal form had been sent successfully to the FWC. 22

[8] The Port Melbourne branch of the Port Philip Library Service, in response to an order to produce documents, issued by the FWC on 9 December 2016, provided a log record for the computer booking on 6 October 2016. The log record showed a reservation for Elizabeth Price between 5:17 p.m. and 6:43 p.m. on 6 October 2016. 23

[9] The report from the FWC’s IT Department showed that, on 6 October 2016 at 6.00 p.m., an email was sent from [email protected] to [email protected].

[10] It is the Commission’s view that the report from the FWC IT Department confirms the statements of Ms and Mrs Price and Ms Dias that Ms Price emailed an unfair dismissal application to the FWC on 6 October 2016. This was within the statutory time limit. On checking with the FWC and finding that they could not locate the application, Ms Price lodged in person another application on 17 October 2016.

[11] On the basis of the material before me, I find that, as Ms Price made a genuine attempt to lodge her application within time, there is an acceptable reason for the delay in filing.

Section 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[12] It appears that it is common ground that the employment relationship ended on 15 September 2016. The parties differ as to whether the parting of the ways was a resignation or a constructive dismissal.

Section 394(3)(c) - any action taken to dispute the dismissal

[13] Ms Price sought legal advice, on 23 September 2016, in relation to what she believes was her forced resignation. Three days prior to that, Mrs Price called JobWatch and made an appointment for both of them to attend.

Section 394(3)(d) - prejudice to the employer

[14] The application was lodged 11 days late. Except for needing to deal with an (additional) extension of time application, it does not seem that the Respondent has been prejudiced to any great degree by the delay.

Section 394(3)(e) - merits of the application

[15] As indicated in paragraph [12] above, the parties have different views as to the manner in which the employment of Ms Price ended. It is noted in this regard that the Respondent has also made a jurisdictional objection on the ground that Ms Price was not dismissed. In addition to the dispute between the parties about whether or not it was a constructive dismissal, there is very little material before me on which to make an assessment of the merits of the application. Therefore, this factor is a neutral consideration in this matter.

Section 394(3)(f) - fairness as between the person and other persons in a similar position

[16] It would seem that this factor is a neutral consideration.

Section 394(3) - are there exceptional circumstances?

[17] It was submitted, on behalf of Ms Price, that the considerations outlined show that there are ‘exceptional circumstances’ which warrant an extension of time. 24

Considerations and conclusions

[18] Under section 394(3) of the Act, the FWC can extend the time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in section 394(3)(a) - (f). Only if the Commission is satisfied that there are exceptional circumstances can the Commission then exercise its discretion to decide to grant an extension of time.

[19] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 25(Nulty) where the Full Bench said:

“[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.” 26

[20] I respectfully adopt the approach by the Full Bench in Nulty in relation to the meaning of exceptional circumstances.

[21] In going to the Port of Melbourne Library on 6 October 2016, having pre-booked a computer, Ms Price, with the assistance of the Library Officer (and Ms Price’s mother), had completed an application and scanned and emailed it to the FWC. The FWC’s records show that the email was received. The Applicant’s mother was advised to call the FWC to confirm that the application was received. On Friday 14 October 2016, Mrs Price was advised by the Commission that the application could not be found. On Monday 17 October 2016, Ms Price and her mother attended at the FWC in person and lodged another application.

[22] Having considered all of the matters in section 394(3)(a) - (f ), I am satisfied that there are exceptional circumstances which justify the granting of an extension of time. Ms Price made a genuine attempt to file an application within time and that application was, in fact, received by the FWC. The application was followed up by Mrs Price, to confirm that it had been received. On learning that it had not been received, on the next working day, Ms Price and her mother attended at the Registry in person and lodged another application. In Christopher Johnson v Joy Manufacturing Co. Pty Ltd t/as Joy Mining Machinery, 27 VP Lawler found that a bona fide attempt to file an application through the Commission website within time, which was unsuccessful for reasons beyond the understanding of the applicant, were exceptional circumstances. The evidence shows that Ms Price emailed her application to the FWC within time. That the whereabouts of the first application are unknown, which necessitated the filing of a second application (late), is a situation that is ‘out of the ordinary course, or unusual, or special, or uncommon’.

[23] Accordingly, Ms Price’s application for an extension of time is granted. The date for lodgement of Ms Price’s application is extended to 17 October 2016.

[24] An order 28 to this effect will be issued separately. The matter will be listed for Member Assisted Conciliation before the Commission as currently constituted.

 1   Witness Statement of Elizabeth Price, dated 7 December 2016

 2   Ibid at paragraphs 5 - 6

 3   Ibid at paragraph 8

 4   Ibid at paragraphs 9 - 10

 5   Ibid at paragraph 11

 6   Ibid at paragraphs 10 and 12

 7   Ibid at paragraph 13

 8   Ibid at paragraph 14

 9   Ibid at paragraph 15

 10   Ibid at paragraph 16

 11   Witness Statement of Robyn Rice, dated 7 December 2016

 12   Ibid at paragraph 7

 13   Ibid at paragraph 8

 14   Ibid at paragraph 9

 15   Statutory Declaration of Maree Dias, dated 24 November 2016

 16   Ibid at paragraph 2

 17   Ibid at paragraphs 3 - 4

 18   Ibid at paragraph 5

 19   Ibid at paragraphs 6 - 7

 20   Ibid at paragraphs 7 - 8

 21   Ibid at paragraph 9

 22   Ibid at paragraph 10

 23   Email from Library Service Coordinator, Port Phillip Library with one attachment, dated 14 December 2016

 24   Outline of Submissions re-Extension of Time on behalf of the Applicant, dated 7 December 2016 at paragraph 26

 25   [2011] FWAFB 975

 26   Ibid at [13]

 27   [2010] FWA 1394

 28  PR589471

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<Price code C, PR589441>