Eyerusalem Newport v Sensis Pty Ltd T/A Sensis

[2016] FWC 3037

[2016] FWC 3037

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Eyerusalem Newport
v
Sensis Pty Ltd T/A Sensis
(U2016/6113)

COMMISSIONER GREGORY MELBOURNE, 19 MAY 2016

Application for extension of time.

Introduction

[1] Ms Eyerusalem Newport has been employed by Sensis Pty Ltd (“Sensis”) as a Telephone Sales Consultant since September 2012. In February 2014 she made a WorkCover claim and has been absent from work for extended periods since that time. More recently she was last at work on 12 August last year. Ms Newport is also often referred to as Zoe Newport.

[2] Sensis terminated Ms Newport’s employment earlier this year by sending her a letter of termination by email on 26 February. However, Sensis inadvertently failed to send the complete termination letter at the time, because the second page of the letter was not attached. Ms Newport submits this caused her to lodge her unfair dismissal claim after the expiry of the standard 21 day time period. She now seeks additional time in which to make application. This decision deals with that application.

[3] Ms Newport appeared on her own behalf. Ms Michelle Concepcion, an HR advisor with Sensis, appeared on its behalf.

[4] A range of materials and other matters were referred to by the parties in their submissions and evidence. However, much of that material is not relevant to this application. I have therefore confined my references in this decision to the evidence and submissions I consider relevant to the determination of the application.

The issue to be decided

[5] Section 394(3) of the Fair Work Act 2009 (Cth) provides the Commission may extend the time for making an unfair dismissal application if it believes there are “exceptional circumstances” that warrant an exercise of this discretion, taking into account the following considerations:

“(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.”

[6] As indicated, Sensis submits Ms Newport’s unfair dismissal application was filed after the expiry of the standard 21 day time period. However, Ms Newport submits this was caused by its failure to properly communicate its intentions to her. She now seeks additional time in which to make application. Therefore, do “exceptional circumstances” exist, having regard to the considerations in s.394(3), to warrant an exercise of the Commission’s discretion to grant Ms Newport additional time in which to make application?

The Evidence and Submissions

[7] The circumstances relied upon by Ms Newport are relatively straightforward. She has been absent from work for extended periods during the past two years due to ill health. She last attended at work on 12 August last year. Earlier this year, on 26 February, Ms Newport received an email from Ms Julie Dingey, the Melbourne Call Centre Director at Sensis.

[8] It stated, “Hi Zoe, Please see letter attached. Regards, Julie Dingey, Melbourne Call Centre Director.” 1 Ms Newport said the email contained a single page attachment, dated 26 February 2016, under the heading “Your employment with Sensis.” It stated:

“Dear Zoe,

Your employment with Sensis

We refer to our previous correspondence regarding this matter with you.

We confirm that we have written to you several times, directing that you:

• Provide information regarding your current and future capacity to perform the inherent requirements of your pre-injury role; or



• Attend an independent medical examination at the cost to Sensis; and



• Provide Sensis with reasonable evidence to substantiate your absence in the form of a medical certificate.

You have persistently refused to comply with those directions, which in the circumstances are lawful and reasonable.

We further confirmed that, since 19 January 2016, we have been seeking your response to our proposal that your employment be terminated. We advised that a response was required by 5:00pm on Friday 5 February 2016.

We further advised you that a decision as to your ongoing employment would be made in the absence of a response. That letter relevantly stated:

Before Sensis makes a decision to terminate your employment, we seek your response to this proposal. Your response should be provided in writing (email is sufficient) to myself, by 5:00pm Friday 5 February 2016. Your response should address why, in the circumstances, Sensis should not terminate your employment.

Should no response received, Sensis will proceed to make a decision regarding your employment without further notice to you. Please note Sensis remains willing to meet with you to discuss your ongoing employment and your capacity for work.

In the absence of your response we further contacted you on 15 February 2016 where you advised you wanted to seek independent legal advice. Sensis provided you an extension until 19 February 2016.

No response has been received to our letter dated 19 January 2016 or to the extension provided to you until 19 February 2016.” 2

[9] Ms Newport submits she then received a further email from Sensis on 29 March dealing with some overpayment and termination payment issues, which commenced by indicating, “We have been informed that you have left Sensis.” 3 Ms Newport immediately made contact with the Payroll Office at Sensis to advise she was not aware of her dismissal, and was told the Payroll Office would get HR to contact her.

[10] Ms Newport submits she then received a further email from Ms Dingey, which contained the second page of the letter Sensis had meant to send to her on 26 February. The email stated:

“Hi Zoe,

Please find attached the letter of termination that I emailed to you on 26th of February.

We have received your email dated 29/03 and I have attempted to contact you today a number of times.

Can I please confirm your postal address so we will also send you a copy in the post to ensure you receive it.

Kind regards” 4

[11] The email then attached the termination letter, including the additional second page which states:

“Accordingly, we have now considered the matter and made a decision to terminate your employment for the sole reason (and none other) that you have persistently refused to comply with Sensis’ lawful and reasonable directions.

A termination payment comprising in lieu of notice will now be made to you, along with a payment representing the value of your applicable accrued untaken leave entitlement.

Sincerely,

Julie Dingey
Telephone Sales Manager” 5

[12] Ms Newport said she was “confused and bewildered” 6 at this point and sent the following email to Ms Dingey on 31 March.

“Hello Julie,

I did not receive that letter (in full view as you have sent it below) on the 26th February.

It was only on the 29th March (yesterday) that I was advised of any termination of my employment when a question was posed regarding monies owed by payroll to myself. That is how I found out. Sensis has my address on file, as they always have and no paper letter of termination was ever sent to me to date either, neither was any phone call/voicemail left. Please confirm why?

Please also note that the requested medical files were sent to Sensis when your initial request was made, directly via my GP and following the conciliation hearing.

Regards,

Zoe” 7

[13] She also said she received a telephone message from Ms Dingey at this time, and returned the call shortly afterwards, but was unable to get through, and left a message indicating she had returned the call.

[14] Ms Newport said she then decided to prepare and file her unfair dismissal application, which was received by the Commission on 12 April. She accordingly submits her application was received by the Commission within 21 days from the time she received confirmation her employment at Sensis had been terminated. She submits in these circumstances it is appropriate for the Commission to exercise its discretion to extend time in which to make application.

[15] Ms Newport also indicated in response to a question from the Commission that she believes her unfair dismissal application has merit because she has been treated unfairly, and was not provided with appropriate procedural fairness in the process of her employment being terminated. She submits in this context she was not provided with the opportunity of having a support person present in any discussions about her termination.

[16] Sensis submits Ms Newport was dismissed because she persistently refused to comply with lawful and reasonable directions given to her. It submits she has since August last year failed to provide medical evidence or information requested by it to support her absence from work. These requests were sent to her by registered mail on 28 October, 23 November and 10 December last year. The letter sent in January is headed “RE: Possible termination of employment” and continues to state in part:

“You have now been absent from work since 13 August 2015 and this cannot continue indefinitely. Sensis has sought your consent to liaise directly with your treating practitioner to better understand the nature of your condition or for you to provide Sensis with medical information outlining your current and future capacity for employment. You have not responded to this request.

Sensis has also requested on me 28 October 2015, 23 November and the 10 December 2015 for you to provide medical certificates to substantiate your absence. You have not responded to this request.

Sensis has made every effort to obtain information regarding your capacity for work. However, you have refused to cooperate with Sensis’ attempts to obtain that information.

In the circumstances, Sensis is now considering termination of your employment on the basis that you have failed to comply with reasonable and lawful directions.

Before Sensis makes a decision to terminate your employment, we seek your response to this proposal. Your response should be provided in writing (email is sufficient) to myself, by 5:00pm Friday, 5 February 2016. Your response should address why, in the circumstances, Sensis should not terminate your employment, a copy of medical certificates from 13 August 2015 to date and medical information from your treating practitioner outlining your current and future capacity to perform the inherent requirements of your pre- injury role.

Should no response be received, Sensis will proceed to make a decision regarding your employment without further notice to you.” 8

[17] Sensis submits that on 19 January this year it sent Ms Newport a letter which first foreshadowed the possibility of her termination on the basis of failing to comply with reasonable and lawful directions. It also asked her to respond by 5 February, however, no response was ever received. On 15 February Ms Dingey contacted Ms Newport by phone to follow up on her response, but was advised she was seeking legal advice and Ms Newport then terminated the call. Ms Dingey followed up this discussion by sending an email to Ms Newport on the following day, which confirmed she was now being given until close of business on 19 February to provide the responses sought by Sensis.

[18] It submits Ms Newport again failed to respond within this timeframe and it therefore sent the letter on 26 February advising her of the termination of her employment for “the sole reason (and none other) that you have persistently refused to comply with Sensis’ lawful and reasonable directions.” However, it acknowledges it mistakenly failed to attach the second page of the letter, which actually contained the words referred to above, to the email sent to her on that day.

[19] A Representative from the Payroll Office at Sensis was then in contact with Ms Newport on 29 March about issues to do with an overpayment, and the payments due to her on termination.

[20] Sensis submits, in conclusion, that when the letter was emailed to her on 26 February Ms Newport was already on notice from prior correspondence that it was about to make a decision about her on-going employment. It also submits it was clear from the first page of the 26 February letter it was terminating Ms Newport’s employment, yet she took no steps to clarify or confirm this prior to lodging her unfair dismissal application. It also submits that even if it was not clear from the first page of the letter that she was to be terminated, Ms Newport deliberately failed to take any action to question the incomplete nature of the letter. In its submission she has deliberately ignored what Sensis intended in an attempt to frustrate that outcome. It also submits there is little merit to her application, and Sensis would be subject to significant prejudice if an extension of time is granted.

[21] It submits, in conclusion, there are no “exceptional circumstances” to warrant an exercise of the Commission’s discretion to extend time in which to make application, and the application should be dismissed.

Consideration

[22] In considering an application for an extension of time the Commission must have regard to each of the matters set out in s.394(3) of the Act in determining whether “exceptional circumstances” exist to warrant an exercise of its discretion. A number of decisions of this Tribunal and its predecessors have also considered what is required to find “exceptional circumstances” exist to justify an extension of time. The Full Bench decision in Nulty v Blue Star Group (Nulty) 9 was handed down in the context of a general protections application, however, the principles established in the decision have been held to be of broader application. The relevant extract from the Full Bench decision in the context of the present application is set out at [13] in the following terms:

“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.” 10

[23] The decision accordingly makes clear “exceptional circumstances” might be found to exist because of a single factor, or a combination of factors. I now turn to deal with the circumstances of this matter, and the submissions of the parties, by reference to these considerations and the matters in s.394(3) I must have regard to.

(a) the reason for the delay

[24] The reason for the delay relied upon by Ms Newport has been detailed already and is not restated now. Clearly, she was on notice after receiving the letter dated 17 January that termination of her employment was one option now being considered by Sensis, following her ongoing failure to respond to their requests to provide medical and other evidence to justify her extended absence from work.

[25] She also appears to be involved in what might be described as a “cat and mouse” game to avoid coming to grips with what her employer was wanting. As Sensis submits it might also have been expected that having received the email on 26 February, and what turned out to be the incomplete attachment to that email, she might have made contact with Sensis in order to clarify its intentions.

[26] I am satisfied that in all of this Ms Newport has at best been less than cooperative with Sensis, and has arguably been deliberately evasive in her dealings. However, there are other factors in all the circumstances which need to be considered. Firstly, Sensis acknowledges the termination letter it emailed to Ms Newport on 26 February inadvertently omitted to include the second page of the attached letter. The content of that page, which is set out at an earlier point in this decision, is clearly significant because it contains confirmation of the decision by Sensis to terminate Ms Newport’s employment. The first page, which Ms Newport did receive, refers to the possibility of her termination, but in essence recaps the events that have led up to the decision that is then confirmed on the second page of the letter.

[27] The inadvertent omission of the second page is then compounded by the fact it was not until 29 March, or four and a half weeks later, that Ms Newport was then contacted by the Payroll Office at Sensis, as foreshadowed on page 2 of the letter of 26 February. I am satisfied it would normally be expected that after an employee has been terminated their employer will move much more quickly than this to finalise payment of any accrued entitlements. If this had happened in the present case then Ms Newport would have been made aware at a much earlier point about the deficiencies contained in the earlier letter emailed to her, and about the decision to terminate her employment.

[28] When Ms Newport did finally receive the email from the Payroll Office indicating she was no longer employed by Sensis she acted promptly to confirm this situation, and then received a complete copy of the letter dated 26 February from Ms Dingey. She then acted within a reasonable time frame, and certainly within the next 21 days, to lodge her unfair dismissal application with the Commission.

[29] Despite what has been said about Ms Newport’s behaviour I am satisfied these circumstances are uncommon or unusual. In circumstances where an employer is providing an employee with advice about something as important as a decision to terminate their employment it can be expected they will do so in a way that provides a clear and unequivocal expression of their intentions. The inadvertent omission in this case meant this did not occur, and this was compounded by the further delay in acting to finalise the payments due to Ms Newport as a consequence of her termination.

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

[30] The submissions and evidence relevant to this consideration have already been canvassed in the paragraphs above. In summary, Ms Newport submits the omission of the second page of the letter forwarded to her on 26 February meant she was not aware of her dismissal at the time it took effect. Sensis submits, in response, Ms Newport was already on notice that termination of her employment was being actively considered. It also submits she should have been proactive in realising the letter emailed to her on 26 February was incomplete, and she should then have taken further action to clarify or confirm what was actually intended.

(c) any action taken by the person to dispute the dismissal

[31] The principal action taken by Ms Newport is the making of this application. The circumstances in which she made the application have already been detailed.

(d) prejudice to the employer (including prejudice caused by the delay)

[32] Sensis submits it will be prejudiced if Ms Newport is provided with additional time in which to make application, and in this context notes a former HR Adviser, Ms Shereem Azzam, who provided a witness statement in this matter, is no longer employed by the business. Regardless of this situation there will inevitably be some additional prejudice for Sensis if Ms Newport is now able to make application as it will be required to prepare and respond to the application.

(e) the merits of the application

[33] Ms Newport submits her application does have merit because the process followed in terminating her employment lacked procedural fairness. In particular, she submits she was not provided with the opportunity to discuss the situation with her employer in circumstances where she was also able to have a support person present.

[34] Sensis submits her application has little or no merit, and points to Ms Newport’s repeated failures to comply with its directions to provide evidence to support her absence from work, in circumstances where she has not been at work since August last year, and before that time had extended periods of absence from work as well. However, both parties provided limited submissions and little evidence about these matters, and the Commission at this point is not in any position to form a concluded view in regard to this consideration.

[35] However, it is also noted that previous decisions of this Tribunal have determined that the Commission is not required in proceedings of this kind to come to a concluded view about the respective merits of an application. For example, in the decision in Kyvelos v. Champion Socks Pty Limited 11a Full Bench of the then Australian Industrial Relations Commission concluded that:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 12

[36] The Full Bench continued:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 13

(f) fairness as between the person and other persons in a similar position

[37] Neither party made submissions suggesting this consideration was of any particular relevance in the context of the present matter.

Conclusion

[38] I have considered all of the evidence and submissions provided by the parties in this matter, and the considerations in s.394(3) I must take account of. I am satisfied, in response, that it is appropriate on this occasion to exercise the discretion to extend time in which to make application. As indicated already I have come to this conclusion without forming any view about the respective merits of Ms Newport’s substantive unfair dismissal application.

[39] However, I am satisfied Ms Newport was entitled to expect she would be provided with unequivocal notice of the decision to terminate her employment. That did not occur because of the inadvertent omission from the attachment to the email sent to her on 26 February. This situation was compounded by the fact it then took some weeks before she received further contact from Sensis about the payments due to her as a consequence of her termination. As indicated already I am satisfied these circumstances can be considered to be out of the ordinary and unusual, and to come within what the decision in Nulty described as “exceptional circumstances” to warrant an exercise of the Commission’s discretion to extend time in which to make application.

[40] I therefore determine that Ms Newport should be granted until 12 April 2016 to file her unfair dismissal application, which was the day on which the application was eventually filed with the Commission. An Order to this effect will be issued in conjunction with this decision. The application will also now be referred back to the Unfair Dismissal Panel to enable Ms Newport’s substantive unfair dismissal application to be dealt with.

COMMISSIONER

Appearances:

Ms Newport appeared on her own behalf.

Ms Michelle Concepcion appeared on behalf of the Respondent.

Hearing details:

2016.

Melbourne:

 1   Respondent’s Document List at Document 7

 2   Ibid at page 3

 3   Witness Statement of Ms Newport at attached Document 1

 4   Ibid at attached Document 3

 5   Ibid at attached Document titled “Letter received 31 March 2016”

 6   Applicant’s Outline of Argument: Extension of Time at Question 5

 7   Ibid

 8   Above n.i at attached Document 5

 9   [2011] FWAFB 975

 10   Ibid at [13]

 11   Print T2421

 12   Ibid [14]

 13   Ibid [14]

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