Emma Dawson v Virgin Australia Airlines Pty Ltd

[2017] FWC 3890

[2017] FWC 3890

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emma Dawson
v
Virgin Australia Airlines Pty Ltd
(U2017/5075)

COMMISSIONER BISSETT MELBOURNE, 26 JULY 2017

Application for an unfair dismissal remedy - jurisdictional objection – extension of time – no exceptional circumstances – application dismissed.

[1] Ms Emma Dawson was employed by Virgin Australia Airlines Pty Ltd (Virgin Australia). Her employment with Virgin Australia was terminated on 19 April 2017. Ms Dawson made an application to the Fair Work Commission (Commission) for relief from unfair dismissal on 11 May 2017.

[2] Section 394(2) of the Fair Work Act 2009 (FW Act) requires that an application for relief from unfair dismissal be made within 21 days of the time the dismissal took effect. Ms Dawson’s application was made 22 days after the dismissal took effect making it one day out of time.

[3] Virgin Australia raises a jurisdictional objection that the application was made out of time and that the application should be dismissed.

[4] Section 394 of the FW Act states:

394 Application for unfair dismissal remedy

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

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.

[5] The application for an extension of time was first heard by me on 7 July 2017. During the hearing it became apparent that Ms Dawson claimed technical issues with the Commission’s lodgement site as a reason for the delay. The application for an extension of time was adjourned to enable a report on that matter to be provided to me by Information Technology staff of the Commission and for the parties to be given an opportunity to make further submissions on the basis of that material.

[6] The parties were advised on 13 July 2017 that:

(a) Systems records indicated that Ms Dawson attempted to lodge her application five times on 10 May 2017.

(b) Whilst it was apparent that there were systems issues, it was not possible to determine if these were FWC systems problems or issues with Ms Dawson’s own computer or internet provider.

(c) There was no record of any attempt by Ms Dawson to pay the lodgement fee.

[7] Further written submissions were received from both parties following the provision of this advice.

Consideration of the matters in s.394(2) of the FW Act

Reason for the delay

[8] Ms Dawson said, in her written submissions, that she first attempted to submit her application on 10 May 2017 at approximately 4.32pm AWST, then at 4.52 AWST and then another four times. She said that each time she tried to make payment with her credit card she was taken to a feedback page and could not proceed to complete the lodgement of her application. Ms Dawson said in her written submissions that when she spoke to a Commissions staff member on 11 May 2017 she was told the matter would be followed up, that there had been a network outage and that the website had been known to crash, particularly at payment stage.

[9] Ms Dawson then attached her application form and three screen shots taken the day before when she had attempted to make her application to an email to the Commission until 5.44pm AEST.

[10] When asked why her re-submitted application (on 11 May 2017) was not made until 5.44pm (AEST) Ms Dawson said that the conversation she had with Commission staff started in the morning of 11 May 2017 and from there someone from the Commission emailed her with the correct application form to complete.

[11] Ms Dawson, when asked to provide the Commission with a copy of this email correspondence with the Commission, provided a record of email correspondence commencing at 5.44pm (AEST) and continuing on 12 May 2017.

[12] On the basis of the information provided by the Commission, Virgin Australia accepts that Ms Dawson did attempt to lodge her application a number of times on 10 May 2017 but notes that there is no record of attempts to pay the lodgement fee.

[13] Virgin Australia submits that an internet/computer error is not an acceptable explanation for the delay in making an application for unfair dismissal in circumstances where Ms Dawson left it to the last minute to make her application. It submitted that such errors occur from time to time and should have been anticipated by Ms Dawson. Further, it submitted that Ms Dawson does not explain why she could not have made her application earlier than the 21st day after her dismissal took effect.

[14] Virgin Australia submits that there is no evidence in the form of correspondence between Ms Dawson and the Commission prior to her submitting her application at 5.44pm (AEST) on 11 May 2017 or that she was waiting on the appropriate form being sent to her so she could complete her application. Further, it submits that the material provided by Ms Dawson does not explain why she did not file her application earlier on 11 May 2017.

[15] Virgin Australia submits that the failure to meet the statutory time limits because of internet issues does not constitute exceptional circumstances. In addition it submits that Ms Dawson has not explained the totality of the delay in making her application, failed to take steps to contact the Commission’s Perth Registry when she first experience problems in submitting her application at 4.32pm AWST and provides no evidence that she saw to the matter as early as possible on 11 May 2017.

When person first became aware of dismissal

[16] There is no dispute that Ms Dawson became aware of her dismissal on the day to took effect

Action taken to dispute the dismissal

[17] There is no dispute that the only action taken by Ms Dawson to dispute the dismissal is the making of her application for unfair dismissal.

Prejudice to the employer

[18] No prejudice is claimed by Virgin Australia.

Merits of the application

[19] Ms Dawson’s employment was terminated for breaches of Australian aviation safety laws and policies of Virgin Australia in that she continued to fly without the requisite Aviation Security Identification Card (ASIC) or Temporary Aircrew card (TAC).

[20] Ms Dawson submits that management were at fault in that they failed to ensure that her photographs were sent with her statutory declaration, resulting in delays in her ASIC renewal. She says she was not reminded about the renewal or of the need to have a TAC. She says that adequate attention was not given to the illness and untimely death of her brother in the period leading up to the non-renewal of her ASIC or in dealing with that issue following her suspension from work.

[21] Virgin Australia submits that Ms Dawson’s ASIC was not renewed because of her late submission of her renewal application and her delay in providing appropriate documentations with sufficient detail to enable her ASIC to be renewed. Virgin Australia says that on at least eight occasions it instructed Ms Dawson that she needed to submit her ASIC renewal or submit more detailed information in support of her ASIC renewal.

Fairness

[22] No matters are raised by either party with respect to this matter.

Approach of the Commission

[23] An extension of time can only be considered by the Commission if exceptional circumstances exist taking into account those matters outlined in s.394(3) of the FW Act.

[24] The meaning of exceptional circumstances was considered in the decision in Nulty v Blue Star Group 1 where the Full Bench of Fair Work Australia found:

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…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.

[25] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. 2

[26] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3 where it was said:

[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be 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.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.

Consideration

[27] Ms Dawson’s reasons for not making her application within the statutory time limit is that she was unable to submit her application because of a systems failure at the Commission.

[28] Whilst I accept that Ms Dawson did attempt to file her application on 10 May 2017 four times, that she could not do so cannot, without doubt, be attributed to problems with the Commission’s computer systems. System problems may have been caused by Ms Dawson’s computer settings or internet access (as was explained in an email to her from the Commission on 13 July 2017).

[29] There is no indication that, having failed to get her application through on the first or second attempt on 10 May 2017 Ms Dawson took any steps to either alert the Commission to the problems she was having or contact the Commission in any way until the following day. Requests to Ms Dawson to provide the Commission with the email exchange she said she had with the Commission on 11 May 2017 only elicited the email she sent to the Commission at 5.44pm AWST to which she attached her application and the screen shots of the problems she had. No evidence was provided of any email correspondence she had with the Commission prior to 3.44pm AWST.

[30] Ms Dawson does not explain why she waited until 4.32pm AWST on the 21st day after her dismissal took effect to attempt to lodge her application. She provides no reason for the failure to take action with respect to lodging her application at any time prior to 10 May 2017.

[31] The evidence, and Ms Dawson’s own submissions, support a finding that she “sat on her hands” and effectively did nothing until late on the 21^st day after her dismissal took effect to make her application for unfair dismissal. It is inevitable that if something was to go wrong with making her application it would result in it being filed outside the statutory time limit. Ms Dawson pushed the boundaries by making her first attempt to lodge her application so close to the time limit. That Ms Dawson’s application was one day late rests squarely with her inaction for close to 21 days.

[32] This weighs against the grant of Ms Dawson’s request for an extension of time.

[33] The competing contentions with respect to the merits of the application mean that no assessment can be made as to the merits of the application. This is therefore a neutral matter in my consideration.

[34] No other matters require consideration.

Conclusion

[35] Having considered the reasons for Ms Dawson not making her application within the time limits prescribed by the FW Act, including the absence of any reason for not having tried to make her application prior to the final day it could be made within time, I am not convinced that there is an adequate explanation for the delay in making her application such that I could find any exceptional circumstances that would warrant me exercising my discretion to grant an extension of time.

[36] Computer failure is not an unusual circumstance. It is one of those things that inevitably occur at the most inopportune time. There was no reason Ms Dawson could not have made her application sooner. No adequate explanation for the delay in making her application was given to the Commission.

[37] Ms Dawson’s application for unfair dismissal was therefore made outside the statutory time limits required by the FW Act and is therefore dismissed. An order 4 to this effect will be issued with this decision

COMMISSIONER

Appearances:

D. Dawson for Ms Emma Dawson.

N. Fraser Virgin Australia Airlines Pty Ltd

Hearing details:

2017.

Melbourne (telephone):

July 7.

Final written submissions:

Respondent: 18 July 2017.

Applicant: 21 July 2017.

 1 (2011) 203 IR 1, [13].

 2 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] 197 IR 403.

 3   [2016] FWCFB 349.

 4   PR594853

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