Fiona-Marie Doran v Beaumaris Sports Association Incorporated T/A Joondalup Sports Association

[2017] FWC 1768

[2017] FWC 1768

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fiona-Marie Doran
v
Beaumaris Sports Association Incorporated T/A Joondalup Sports Association
(U2017/648)

COMMISSIONER PLATT ADELAIDE, 29 MARCH 2017

Application for relief from unfair dismissal – extension of time – dispute re date of lodgement – alleged IT transmission error – representative error – extension granted.

Overview

[1] Ms Fiona-Marie Doran lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Beaumaris Sports Association Incorporated T/A Joondalup Sports Association (JSA) which took effect on 23 December 2016.

[2] Ms Doran contended that the application was lodged by email on 13 January 2017, however the Fair Work Commission (the Commission) did not receive the email until 22 January 2017.

[3] Ms Doran’s application explained the failure to lodge the application within 21 days from the dismissal as follows:

“1. Representative administration system failure.

2. An upgrade of the data management system commenced in the first week of January, rendering the original database program inaccessible.

3. The lodgement form was scheduled to be released on the day that the lodgement was due, however the date was not recognised by the new system.

4. The error was not picked up until today.”

[4] JSA filed a F3 Employer Response on 10 February 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time.

[5] On 8 March 2017, my Associate corresponded with Ms Doran and JSA and advised that the extension of time issue would be considered at a telephone conference on 23 March 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Ms Doran was directed to provide a statement concerning the extension of time and any documents to be relied upon by 15 March 2017. JSA was invited to file any material in reply by 20 March 2017.

[6] Ms Amanda Millar of Australian Dismissal Services, on behalf of Ms Doran, provided a written submission summarised as follows:

● Ms Doran was notified, and aware, that her dismissal had taken effect on 23 December 2016. Both Ms Doran and her representative took action to pursue her unfair dismissal application.

● Ms Sharyn Sakys, Administration Manager of Australian Dismissal Services, lodged the unfair dismissal application electronically via email at 10:02pm on 13 January 2017 and therefore the unfair dismissal application was in fact lodged within the 21 day statutory time limit – 13 January 2017 being the last day to file.

● No ‘bounce back’ email was received to indicate any problem with the transmission of the lodgement email.

● Ms Sakys was unaware that there was any delay in the email being transmitted to the Commission, until it was raised by JSA as a jurisdictional objection in the F3 Employer Response.

● Although unaware of this fact, the unfair dismissal application was received at 10:02pm on 22 January 2017 being nine days to the exact minute after the application was sent by Ms Sakys.

● Having become aware of the delay in transmission, Mr Anderson consulted with an IT professional who confirmed that the email was sent at 10:02pm on 13 January 2017, was never re-sent and presumably had continued to attempt transmission at that exact time, 10:02pm, until successful.

● Australian Dismissal Services were unaware of any problem with the transmission and can provide no explanation for what occurred.

● The unfair dismissal application was lodged within time and therefore there is no prejudice, caused by any alleged delay, to JSA.

● There are strong merits to the application based on the lack of valid reason for the dismissal, lack of procedural fairness and harshness of the decision to terminate Ms Doran’s employment.

● Ms Doran requests that the Commission confirm that no extension of time order is required due to the application being lodged on time or in the alternative to grant an extension of time.

[7] A statement was not submitted by Ms Sakys or Ms Doran.

[8] Having reviewed the written submissions filed on behalf of Ms Doran, I requested my Associate to correspond with the Commission’s IT Department in relation to the alleged lodgement of the unfair dismissal application via email on 13 January 2017. The ICT Systems Administrator contacted the Commission’s external provider and requested a log of the emails sent from the email address of Australian Dismissal Services to the Commission for the period of 12 January 2017 to 23 January 2017. The log identified a number of emails sent from Australian Dismissal Services to the Commission; none of these emails were dated 13 January 2017. The Commission’s IT Department concluded that if the email was sent on 13 January 2017 and there was a delay, it was at the representative’s end. A copy of this information was provided to the parties on 21 March 2017.

[9] JSA filed a Response which is summarised as follows:

• Ms Doran lodged the unfair dismissal application at 10:02pm on 22 January 2017 and therefore the application is nine days out of time.



• The unfair dismissal application is signed and dated 13 January 2017, at question 1.4 the representative for Ms Doran has answered ‘No’ to the question “Are you making this application within 21 calendar days of your dismissal taking effect?” and listed reasons for the delay, therefore Ms Doran knowingly submitted the application late.



• It is inconsistent for Ms Doran’s representative to say in the written submission that it was unaware that the application was filed late until it was raised in the F3 Employer Response, when the unfair dismissal application provides reasons at question 1.4 for the delay.



• If the unfair dismissal application was only submitted once on 13 January 2017, as contended by Ms Doran’s representative, then there would be absolutely no reason to provide reasons for the delay at question 1.4.



• Pursuant to the Full Bench decision of Ozsoy v Monstamac Industries Pty Ltd, 1 Ms Doran must provide a credible reason for the entire period that the application was delayed but has not done so.



• Ms Doran is not citing representative error and has failed to provide evidence of exceptional circumstances.



• In relation to the merits of the application, Ms Doran was provided with a substantive reason and procedural fairness.



• As Ms Doran is not requesting an extension of time, the application should be dismissed.

[10] On 23 March 2017, Australian Dismissal Services provided a comparison of the Commission’s IT findings with their own office’s findings. On the same day, a further email was received from Australian Dismissal Services providing an electronic copy of the email asserted to have been sent on 13 January 2017 by Ms Sakys, including the form F2 Unfair Dismissal Application attachment in PDF format.

[11] A hearing was conducted by way of telephone conference on 23 March 2017. A sound file record of the telephone conference was kept. Ms Millar of Australian Dismissal Services represented Ms Doran and Ms Bonello of ClubsNSW represented JSA.

[12] During the conference, Ms Doran forwarded a further five emails. The emails included an ‘offer to represent’ sent by Australian Dismissal Services on 10 January 2017 and Ms Doran’s subsequent acceptance shortly after receipt, an email from Australian Dismissal Services dated 17 February 2017 forwarding the F3 Employer Response, and two emails from the Commission on 24 January 2017 and 27 February 2017 respectively. As Ms Bonello did not have access to email during the hearing, the emails were read to the parties. Ms Bonello was offered the opportunity to be given a further period of time to review the emails and provide additional submissions but declined this offer and addressed the issues arising from the emails during the hearing. A redacted version of the emails was provided to the parties after the conference.

Date of Lodgement

[13] The first issue canvassed was the date upon which the application was lodged. Ms Millar contended that the application was sent on 13 January 2017 and there was an error in the Commission’s email system. There are a number of possibilities which may have caused the email message sent by Ms Doran’s representative not to be sent, or to be delayed, including issues with the Australian Dismissal Services email system.

[14] Ms Bonello also raised the concern that question 1.4 (which applied for and gave reason for an extension of time) had been completed and this was inconsistent with Ms Millar’s assertion that the application was submitted before the 21 day lodgement period had concluded. Ms Millar read from advice prepared by Ms Sakys (which was not provided) and asserted that the Form F2 submitted was created from a template from another case which contained this information and was lodged on 13 January 2017. The application and reasons for an extension of time were inserted in error.

[15] A review of the PDF document properties of the original form F2 Unfair Dismissal Application, attached to the email sent on 13 January 2017, provided by Ms Millar prior to the hearing revealed it was created and modified by Ms Sakys on 22 January 2017. A screen shot of this information was provided to Ms Millar during the conference. Ms Millar was unable to explain this information or how a document created on 22 January 2017 could have been lodged on 13 January 2017. Ms Sakys was not called to give evidence at the conference.

[16] The inconsistencies in the evidence concerning the date of lodgement, lead me to reject the submission that the application was lodged on 13 January 2017. I find that it was lodged on the day it was received by the Commission that is 22 January 2017.

Representative Error

[17] Ms Doran relies on representative error to explain the delay. Australian Dismissal Services did not provide any witness statements in support of this contention. It was fortuitous that Ms Doran was present at the hearing and provided the following information;

• She was dismissed on 23 December 2016.



• After her dismissal she and her father approached legal aid and numerous other free legal representatives to seek advice, she also contacted the Police to complain about the conduct she had been subjected to. She offered to obtain the telephone records from Telstra to evidence the numerous places she attempted to telephone.



• The Christmas/New Year period hampered her efforts, and it was the anniversary of her mother’s death.



• She was unable to find a representative that she could afford until she located Australian Dismissal Services on 10 January 2017.



• On 10 January 2017, she had a dialogue with Alan Frampton of Australian Dismissal Services who emailed a proposal to represent her. That proposal was accepted by return email on 10 January 2017.



• Later that day, Australian Dismissal Services advised it would lodge her claim within 48 hours and would confirm the same. The email advised:

“From here on, unless we need something from you, it will go quiet, you will not hear form (sic) us, this is perfectly normal; there is no point calling for updates as there will not be any, please try and focus on getting a new job and let this process go on in the background;”

• Ms Doran believed that her claim had been lodged in time and was unaware of the delay. She understood she was not to contact Australian Dismissal Services.



• The next she heard from Australian Dismissal Services was via email dated 17 February 2017 advising that the F3 Employer Response had been received.

[18] At the telephone conference, JSA cross-examined Ms Doran briefly, and reinforced its written submissions. JSA submitted that “exceptional circumstances” were not revealed by the facts.

[19] Section 394 relevantly states:

“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.”

[20] I find that the unfair dismissal application by Ms Doran was made 9 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[21] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd² which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

[22] It is a well-established principle that, depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged. 3 In such a case, a distinction is drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.4 The conduct of the applicant is a central consideration.5

[23] Whilst it is established by case law that having the Christmas period fall within the statutory time period in which an application must be lodged is not of itself grounds for exceptional circumstances, 6 I note that it was a challenging time of the year and I find that in the circumstances Ms Doran took the appropriate steps to ensure that the application was lodged on time. Having found a representative, three days prior to the lodgement deadline, she promptly instructed him to lodge her application within time and having been told not to ‘harass’ him, did what she was advised to do.

[24] Ms Doran was not at fault in respect of any delay in transmission, or lodgement, of her application. She was entitled to believe that it would be promptly filed before the 21 day statutory time limit.

[25] The existence of representative error was amplified by the manner in which the Australian Dismissal Services representative conducted the jurisdictional hearing, in that Ms Millar failed to lodge a statement by Ms Doran or Ms Sakys or lead any evidence relevant to the steps taken by Ms Doran to contest the dismissal. To Ms Doran’s credit, who I note is not a legal professional and has no background in industrial relations, she provided the sole information relevant to the elements of representative error.

[26] The applicant needs to provide a credible explanation for the entire period of the delay,⁷ and has done so.

[27] The delay in this matter is such that minimal prejudice will occur and I regard it as a neutral factor.

[28] Consideration of fairness relative to other persons in similar positions is a neutral factor.

[29] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.

Conclusion

[30] For the reasons I have set out above, I am satisfied that Ms Doran’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and an Order⁸ reflecting this decision will be issued.

COMMISSIONER

Appearances:

A.Millar of Australian Dismissal Services for the applicant.

A.Bonello of ClubsNSW for the respondent.

Hearing details:

2017.

Adelaide:

March 23.

 1   [2014] FWCFB 2149, [31]

2 [2011] FWAFB 975

 3   Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420

 4   Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420

 5   Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420

 6   Smith v KJM Contractors Pty Ltd (2010) 197 IR 403

7 Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

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