Henderson v Hoban Recruitment Pty Ltd

[2016] FWC 5041

[2016] FWC 5041

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Biliana Henderson
v
Hoban Recruitment Pty Ltd T/A HOBAN Recruitment
(U2016/7694)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 JULY 2016

Application for relief from unfair dismissal - extension of time not granted.

[1] Ms Biliana Henderson alleged that the termination of her employment by Hoban Recruitment Pty Ltd T/A HOBAN Recruitment (Hoban) was unfair.

[2] Ms Henderson says her employment was terminated on 24 May 2016 and that she was notified of this on that day. Hoban says that Ms Henderson was engaged as a casual employee to undertake casual assignments with its clients, that the last date of her final assignment was 24 May 2016 and because she elected not to accept or be available for further assignments, her employment was not terminated by it.

[3] Ms Henderson completed her Form F2-Unfair Dismissal Application form (Application) and posted it on Wednesday 8 June 2016. It arrived in the Melbourne registry of the Fair Work Commission (Commission) on Wednesday 15 June 2016. Her Application was therefore not made within 21 days of the date of the dismissal, as required under s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

Preliminary procedural matter

[4] In the Application, Ms Henderson named ‘Hoban T/A Hoban’ as the Respondent. In the Form F53 Notice of representative commencing to act for Hoban, the legal name of the business was recorded as Hoban Recruitment Pty Ltd and the trading name of the business was recorded as HOBAN Recruitment. Ms Lane, who appeared for Hoban, confirmed that the Respondent is in fact ‘Hoban Recruitment Pty Ltd T/A HOBAN Recruitment.’ I therefore amended the Application to this effect and I note my doing so comes within the circumstances in which it has been held this can be done pursuant to s.586 of the Act. 1

[5] I will now consider the extension of time matter.

Extension of Time

[6] The Commission can extend 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 certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[7] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 2where 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." [Endnotes not reproduced]

[8] At the hearing, Ms Henderson gave evidence and addressed the material she had filed. Her husband, Mr Garnett Henderson, also gave evidence on her behalf. Represented by Ms Lane, Hoban made submissions only.

Section 394 (a) the reason for the delay;

[9] There must be an acceptable reason for the delay in making the unfair dismissal application. 3 Ms Henderson must provide a credible reason for the whole of the period that her application was delayed.4

[10] 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. However, 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. 5 

[11] The Full Bench explained the correct approach by reference to the following example in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 6:

"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."

[12] As to the 21 day period, Ms Henderson’s evidence was she became aware of it as a result of having contacted the Commission on 30 May 2016. This was six days after she says her employment was terminated. She said that she was advised how to download a Form F2- Unfair Dismissal Application form and once she had done so, she discovered, upon reading it, the 21 day limit.

[13] Ms Henderson said she completed the Application on Wednesday 8 June 2016 and posted it the same day. The Application was received by the Commission one day late, on Wednesday 15 June 2016. Ms Henderson says Australia Post is to blame because she posted the Application within the 21 day deadline. 7

[14] The envelope in which the Application was received by the Commission indicates that the Application was sent by ‘regular’ post, with a $1 postage stamp. Ms Henderson said that to her knowledge, the Application would take two to three working days to get to the Commission.

[15] In its submissions, Hoban directed me to the Australia Post web page “ which states that delivery for regular letters and cards occurs in 2-6 business days within Australia. 8 A further search through the Australia Post web site uncovers a statement that the delivery time for a regular, domestic letter is 2-6 business days, depending on the destination and that delivery times apply from the day after posting and vary depending on the origin and destination.9

[16] Ms Lane for Hoban submitted that Ms Henderson stating that the delay was the fault of Australia Post was not a sufficiently good reason to extend time. Hoban submitted Ms Henderson just assumed the Application would be delivered within two to three days of mailing, that relying on Australia Post’s poor performance was not an adequate reason for the delay and otherwise relied on its written submissions dated 15 July 2016 in relation to this reason given by Ms Henderson.

[17] Hoban also submitted there were other ways in which the Application could have been lodged, including email and facsimile. In this regard, it submitted that it was clear from recent communications that Ms Henderson had utilised facsimile facilities 10 and that once aware of the 21 day limit, it was open to Ms Henderson to use either email or facsimile.

[18] Hoban submitted that previous cases determined by the Commission regarding late lodgment of unfair dismissal claims arising from alleged failures of Australia Post or a lack of understanding of Australia Post’s delivery schedules make it clear that these are not exceptional circumstances warranting an extension of time, even where an application is lodged one or two days late. 11 It cited Jessiman v Seymour Timber & Hardware12 (Jessiman) and Cuthbert v PRD Nationwide Werribee Real Estate13 in support and submitted that Ms Henderson had failed to establish that the reason for the delay was in any way exceptional.

[19] In Jessiman, the Applicant posted his application by regular post on 5 January 2016 and it had to be received by 7 January 2016 to be within time. It was held that the time taken for delivery of it on 11 January 2016 was not unusual and Commissioner Bissett stated:

“It took Australia Post four working days to deliver Mr Jessiman’s letter. It was not put that this delivery period was unusual or out of the ordinary. In circumstances where Mr Jessiman says he was aware of the changes in Australia Post’s delivery standards he does not appear to have taken the delivery standards into account in delaying the posting of his application until 5 January 2016. He just assumed – without checking – that his application would arrive within two to three days of posting. It is not unreasonable, in my opinion, to expect that a person should take into account the delays that may be occasioned by the method they chose to deliver their application to the Commission. Mr Jessiman had three options for posting his letter and he chose the slowest of these.” 14

[20] I have also reviewed some additional decisions of the Commission.

[21] In Wiggins v Fielders Australia Pty Ltd, 15 the Applicant sent her application by surface mail on the second last business day available within the (then) 14 day time limit. This was not regarded by the Commission to be a serious attempt by the Applicant to lodge the application within the specified time limit and it formed the view that the Applicant had exhibited a careless indifference to ensuring that her application was received within the statutory prescribed time limits.

[22] An application posted by ordinary surface mail on the second last day to lodge it was considered in Casey v Guardian Community Early Learning Centres T/A Smith Street Childcare 16 (Casey). Deputy President Gostencnik reviewed the then Australia Post delivery times and stated:

“[10] Contrary to Ms Casey’s assertion in her written materials about what Australia Post guarantees, a cursory review of publicly available material on the Australia Post website shows that an item of regular mail, which includes an item sent by registered post, is estimated to be delivered by Australia Post within one to four business days, depending on point of origin and destination. No guarantee is made that an article of mail sent by ordinary surface post will be delivered within a particular time-frame. The only guarantee that is to be found on the Australia Post website concerns a delivery date for items sent by express post, which Australia Post guarantees will be delivered by the next business day after sending. The application was delivered to the Commission within the period estimated by Australia Post, but not in time to meet the requirement of s. 394 (2)(a) of the Act.

[11] Ultimately Ms Casey chose to send her application by mail and hoped that it would be delivered by the next day. Ms Casey could have sent her application by electronic means such as email. She could have hand delivered the application, she could have sent it by express post. Any of these methods would have ensured that the application was made within the time specified. The method chosen by Ms Casey was, with respect, entirely within her control, and by relying on ordinary surface post to deliver an application, she took the risk that her application would not reach its intended destination within the time prescribed.”

[23] The Deputy President reviewed a series of cases in which the delivery by Australia Post was well beyond the time estimated by it for delivery of items of ordinary surface mail leading to a finding of exceptional circumstances 17 and made the observation “without expressing a view as to the correctness of the conclusions in the three cases … it is sufficient to note that none of these decisions concerned delivery within the time estimated by Australia Post, and none of the decisions involved an applicant allowing only one day for delivery”.18

[24] In Casey, the Deputy President ultimately concluded:

“In my view, merely sending an item by ordinary surface post, which item is delivered within the Australian Post estimate, does not provide an acceptable reason for the delay and is a matter that is entirely in the control of the applicant. An applicant who waits until very late in the day to send an application to the Commission by ordinary surface post, runs the real risk that the application will not be delivered in time.” 19

[25] In this case, the method of delivery chosen by Ms Henderson when she posted her application on the fifth last business day within the 21 day limit was ‘regular’ post, a method with a delivery time, according to Australia Post, of between 2-6 business days from the day after posting. This was a matter within Ms Henderson’s control and she could have chosen to lodge the Application via a range of other methods. In choosing ‘regular’ post, there was the risk that her application would not be delivered in time. That the Application was received by the Commission on the fifth business day after Ms Henderson posted it does not, consistent with the approach taken in Casey, provide an acceptable reason for the one day delay because it was delivered within Australia Post’s stated delivery time.

[26] Both Ms Henderson and Mr Henderson said that Ms Henderson could not afford Express Post due to their financial circumstances. While unfortunate, this does not constitute exceptional circumstances and I note that Ms Henderson was not granted a waiver of the $68.60 lodgement fee for the Application.

[27] Ms Henderson also attributed illness as a reason for the delay. She said that she was ill when she was told she was terminated on 24 May 2016 with the flu and severe vertigo. Additionally, she said her young daughter was suffering from croup. She said she recovered by 5 June 2016. When cross-examined, Ms Henderson acknowledged that while ill, she had been able to contact the Commission, download a Form F2-Unfair Dismissal Application form and read it. She did not agree that Mr Henderson might have been able to assist with the completion and posting of the Application during this time, stating that he was prevented from doing so because of his shift work commitments.

[28] Mr Henderson gave evidence that Ms Henderson was bedridden with vertigo and that he had to work. He said Ms Henderson actioned the Application when she was ‘up and running’ again. He said his time was limited due to his shift work, he was fatigued from his work and unaware he could assist Ms Henderson with completing the forms. He confirmed that Ms Henderson called the Commission while ill and had downloaded the forms but also said she was suffering from a lack of sleep due to her vertigo which caused her to ‘talk in riddles’.

[29] As to the question of illness, Hoban submitted it was unclear as to the extent of Ms Henderson’s illness and there was no medical evidence provided in support. Hoban submitted that Ms Henderson was evidently well enough during the period from 24 May 2016 to 6 June 2016 to call the Commission for advice and having received the advice that she had a claim against Hoban, she was able to download the Form F2-Unfair Dismissal Application form. She was also able to call Jobwatch.

[30] Ms Henderson’s submission asserting that she had a medical condition that limited her capacity to pursue the matter until 5 June 2016 was made without medical evidence confirming the degree of incapacity, and its duration. Consequently, I am not satisfied there is a medical basis which properly explains why Ms Henderson could not lodge the Application within time. Ms Henderson advised she made a phone call to the Commission, accessed its website, downloaded a Form F2-Unfair Dismissal Application form and was made aware of the 21 day lodgement requirement on 30 May 2016. She completed and sent the Application on 8 June 2016. If Ms Henderson was well enough to do these things, she has not established a reasonable explanation for the subsequent one day delay in its lodgement.

[31] Ultimately, Ms Henderson submitted that she had done what she thought was required and that Australia Post would deliver the Application within two to three business days. She submitted that had she not been sick, she could have lodged the Application earlier.

[32] I am not satisfied that Ms Henderson has established that the reasons for the delay represent circumstances which should be regarded as exceptional for the purposes of an extension of time. This weighs against a finding that there are exceptional circumstances.

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

[33] Ms Henderson said she first became aware of her dismissal on 24 May 2016 when she was telephoned by Ms Natasha Mostanovski and understood it to have immediate effect. She was therefore aware of the dismissal on the day it took effect and had the full 21 days to lodge her application. This weighs against a finding that there are exceptional circumstances.

Section 394 (c) any action taken by the person to dispute the dismissal;

[34] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 20

[35] Ms Henderson said she immediately challenged Ms Mostanovski and told her that she did not agree with her termination and would take things further with ‘Fair Work’. Mr Henderson stated that Ms Mostanovski asked for Ms Henderson’s resignation but Ms Henderson refused to resign. Both Ms Henderson and Mr Henderson said that Ms Henderson contacted the Commission and Jobwatch.

[36] The evidence from Ms Henderson was that when she contacted Jobwatch on either 2 June or 3 June 2016, she was told she had a case and that she had been discriminated against because of her babysitting and caring responsibilities. She also said she was told she could follow up with the Commission or Legal Aid.

[37] Hoban submitted that Ms Henderson had taken no steps to dispute the dismissal other than filing the Application.

[38] I am satisfied Ms Henderson made enquiries of the Commission on 30 May 2016 and Jobwatch on 2 June or 3 June 2016. However, there was no evidence of her making any direct contact with Hoban to dispute her dismissal after receiving the advice from Jobwatch. This weighs against a finding that there are exceptional circumstances.

Section 394 (d) prejudice to the employer (including prejudice caused by the delay);

[39] Prejudice to the employer will weigh against granting an extension of time. 21 Hoban did not submit that there was any prejudice to it if an extension of time were granted. However, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.22

[40] Ms Henderson said there would be no prejudice to Hoban if an extension of time were granted.

[41] I consider this criterion to be neutral.

Section 394 (e) the merits of the application;

[42] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group 23, it said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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."

[43] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case" 24 for the purpose of determining whether to grant an extension of time to the applicant to make their Application. I have adopted this reasoning.

[44] Ms Henderson said that the reason for her termination given by Hoban was because of her carer’s and sick leave and that she was not flexible enough. 25 She said she was not warned and nor was she counselled and that she had been discriminated against because of her carer’s leave, ‘sickies’ and babysitting situations.26 Ms Henderson said that she should have had a warning or a meeting to discuss the issues before she was terminated.

[45] Hoban submitted that the Application has no merit because Ms Henderson’s employment was not terminated at its initiative. Hoban submitted that Ms Henderson’s assignment with Virgin was ended on 24 May 2016 at the request of Virgin and that when she was subsequently offered other assignments with other clients of Hoban, she refused to accept them. 27

[46] I am not able to make a final assessment of the merits as there are clearly factual disputes between the parties that have not been tested, primary amongst them the dispute regarding whether or not there was a termination on Hoban’s initiative. I have concluded that the merits of the application do not mitigate against an extension of time but do not contribute to an exceptional circumstances finding or conclusion. I consider this criterion to be neutral.

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

[47] The question of fairness as between Ms Henderson and other persons in a similar position has been considered recently in Morphett v Pearcedale Egg Farm ,28 as follows:

“cases 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.”

[48] There were no submissions that there were other persons in a similar position to Ms Henderson from either party.

[49] I have however referred to a number of previous decisions of the Commission at paragraphs [20]-[24] above, which have considered the extent to which issues relating to postal delivery might attract a finding that there is an acceptable explanation for a delay.

[50] However, ultimately this case turns on its own facts and I consider this criterion to be neutral.

Conclusion

[51] Having taken into account the matters referred to in paragraphs [9]-[50] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Ms Henderson’s application to be made. Ms Henderson’s circumstances were not out of the ordinary course, unusual, special or uncommon and she has not provided a reasonable explanation for the whole of the delay. None of the criteria weigh in favour of a finding of exceptional circumstances and a lack of prejudice alone is insufficient to find exceptional circumstances.

[52] Ms Henderson’s application for an extension of time is refused and therefore her unfair dismissal application is dismissed. An order to this effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Ms B Henderson on her own behalf.

Ms J Lane for the Respondent.

Hearing details:

2016.

Melbourne:

July 22.

 1   Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 (unreported, Catanzariti VP, Harrison SDP, Bull C, 12 May 2015) at [28].

 2   [2011] FWAFB 975.

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

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

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

 6   Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [31].

 7   Exhibit A2.

 8 Respondent’s Outline of Submissions dated 15 July 2016 at [17].

 9   See:   Exhibits A2 and A3 are examples of this.

 11 Respondent’s Outline of Submissions dated 15 July 2016 at [18].

 12   [2016] FWC 1947.

 13   [2014] FWC 675.

 14   Jessiman v Seymour Timber & Hardware[2016] FWC 1947 at [31].

 15   [2012] FWA 10025.

 16   [2014] FWC 4002.

 17   Ruthven v Alcom Fabrications [2014] FWC 2867, Caire v Imscan Technologies[2013] FWC 3154, Ellis v TNQITC Pty Ltd[2010] FWA 2479.

 18   [2014] FWC 4002 at [35].

 19   Ibid.

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

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

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

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

 24   Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 25   Form F2-Application Dismissal Application at 3.1.

 26   Ibid at 3.2.

 27   Respondent’s Outline of Submissions dated 15 July 2016 at [26]-[27].

 28   Morphett v Pearcedale Egg Farm[2015] FWC 8885 at [29].

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