[2017] FWC 3435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hongjuan (Helen) Lao
v
Cloverdale Admin Services Pty Ltd
(U2017/1873)

DEPUTY PRESIDENT ANDERSON

MELBOURNE, 4 JULY 2017

Application for an unfair dismissal remedy – whether extension of time should be granted – exceptional circumstances not present – extension not granted – application dismissed.

[1] This is an application under s.394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy. Helen Lao (Mrs Lao) alleges that she was dismissed by Cloverdale Admin Services Pty Ltd (Cloverdale) on 22 December 2016.

[2] Mrs Lao was employed by Cloverdale as a permanent part time employee from 11 May 2015 until 22 December 2016 under the Cleaning Services Award 2010 1.

[3] Cloverdale disputes that Mrs Lao was dismissed. It claims that Mrs Lao resigned on 2 December 2017, effective 22 December 2016. It foreshadowed a jurisdictional challenge to the application on that ground, should it proceed to a further hearing on the merits.

Extension of Time

[4] Ms Lao’s application is dated 17 February 2017 but was lodged with the Fair Work Commission (Commission) under cover of an email on 21 February 2017.

[5] The Fair Work Act 2009 (FW Act) requires an applicant for an unfair dismissal remedy to lodge their application within 21 days after the dismissal took effect. 2 The Commission may, however, allow a further period for lodgement in exceptional circumstances.3

[6] Mrs Lao’s application was lodged 61 days after her dismissal took effect. It is 40 days late. Mrs Lao made an application for an extension of time. The application was opposed by Cloverdale.

[7] Conciliation by the Commission on 2 May 2017 did not resolve the matter.

[8] A hearing was conducted on 16 June 2017 to determine whether an extension of time should be granted. Mrs Lao was self-represented. She was assisted by a support person, Mr Toulmin. Cloverdale was represented by its Chief Operating Officer Mr Smith and State Manager Mr Andersen.

[9] Mrs Lao gave evidence and was cross examined by Mr Smith. Cloverdale did not call any witnesses. A number of documents were relied upon by Mrs Lao and by Cloverdale.

[10] Both Mrs Lao and Cloverdale made written and oral submissions on the application for an extension of time.

Legislative scheme

[11] Relevant to the Commission considering whether an extension of time should be granted is section 394(3) of the FW Act:

“394 Application for unfair dismissal remedy

(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

(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.”

[12] The principles to be applied when taking into account the five nominated criteria are well established and set out in a decision of a Full Bench of Fair Work Australia (as the Commission was then called) in Nulty v Blue Star Group. 4 In that matter the Full Bench said the following in relation to “exceptional circumstances”:

“[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.” 5

The Employer’s Response

[13] Cloverdale claims that Mrs Lao voluntarily resigned her employment by email on 2 December 2016 and that her resignation was accepted and took effect on 22 December 2016. 6

[14] The employer opposes the application for an extension of time on the grounds that Mrs Lao did not take all reasonable steps to inform herself of her rights, travelled overseas for four weeks and upon her return did not act promptly to further ascertain her rights.

[15] It also contends that Mrs Lao’s case has no reasonable prospects of success as, it asserts, she voluntarily resigned. It foreshadows making an application for costs should Mrs Lao’s application fail.

The evidence

[16] Mrs Lao lodged an on-line enquiry with the Office of the Fair Work Ombudsman (Ombudsman) at 1.38pm on 23 December 2016. 7 She sourced the Ombudsman’s details from the employee handbook that Cloverdale provided its employees.

[17] Her enquiry was logged by the Ombudsman as “number 0369763”. It was recorded as follows: “Employer terminated the employment when the employee was on her sick leave.” The enquiry was categorised as concerning “entitlements”.

[18] On that same day, at 7.01pm, Mrs Lao received an automated reply from the Ombudsman in the following terms:

“Thanks for using My account to send us your enquiry for (Customer Reference Number 727980555). Log back into your account and go to My enquiries section to see our response. Make sure you click on the correct Enquiry No. It will be the same as the one that’s in the subject line of this email. If you need more help you can submit a new enquiry through your account. DO NOT REPLY DIRECTLY TO THIS EMAIL. Please note this is an automated email notification; any replies will not be received.

Regards

The team at the Fair Work Ombudsman”

[19] Mrs Lao’s evidence was that she received the automated reply, looked at it that evening or the following day but did not take the action it suggested (log in and go to “My enquiries”). Had she done so and clicked the link to “My enquiries” she would have seen the Ombudsman’s response in the following terms 8:

“Hi Helen

An employer can terminate you during a period of sick leave as long as it (sic) not because of the sick leave. If you believe you have been terminated for accessing an entitlement such as sick leave you can lodge a general protections claim with the Fair Work Commission to do this you will need to visit

[20] Mrs Lao’s evidence was that she did not understand the contents of the Ombudsman’s automated reply. She said that because the reply provided her a customer reference number, she assumed that was sufficient to indicate that her matter was being progressed by the Ombudsman. She says she was also feeling unwell and was preparing to go overseas. She says she gave the Ombudsman the phone number of a friend, Mr Toulmin (who was her support person at the hearing) in case of any contact whilst overseas. It is unclear when that occurred.

[21] Mrs Lao left for overseas on 26 December 2016 and returned on 28 January 2017. While overseas, on 3 January 2017 Mrs Lao sent an email to Mr Toulmin inquiring if any correspondence had been received “from Fair Works yet”. Mr Toulmin replied “nothing from fair work yet…you should receive an email from them before me”.

[22] On 7 February 2017, nine days after her return to Australia, Mrs Lao emailed the Ombudsman in the following terms:

“Since I lodged my complaint in December last year, I have not heard from any news from the Fair Work Ombudsman. I wonder where I can go from here. I save the documents about this issue as well.

Regards,

Helen Lao”

[23] Mrs Lao sent her 7 February email to the Ombudsman’s ‘no reply’ email address ([email protected]) which she obtained from the automated email reply of 23 December 2016. She sent this email to the ‘no reply’ email address despite the Ombudsman’s email of 23 December saying the following in bold and in capitals:

“DO NOT REPLY DIRECTLY TO THIS EMAIL

Please note: this is an automated email notification; any replies will not be received.”

[24] Mrs Lao received no reply from the Ombudsman’s ‘no reply’ email account. On 16 or 17 February, nine or ten days later, Mrs Lao telephoned the Ombudsman to enquire about the status of her complaint and their non-responsiveness. She was told by an officer that a response had been provided in their email of 23 December, that no further action was progressing by the Ombudsman on her compliant, and that she should contact the Commission if she wished to contest the termination of her employment.

[25] She then telephoned the Commission on 17 February, completed an unfair dismissal application that day and lodged it by email four days later, on 21 February.

Consideration

[26] English is not Mrs Lao’s primary language. Whilst not at an advanced level, she can, however, speak and read English to a level which enabled her to communicate with her employer and engage in the process of exercising her rights. She did not need an interpreter when giving evidence or referring to documents during these proceedings.

[27] In considering this matter, appropriate allowance needs to be made for the fact that a person whose primary language is not English may not be as proficient in understanding the significance or import of language used in email correspondence from a statutory body such as the Office of the Fair Work Ombudsman. Allowance also needs to be made for the fact that persons unfamiliar with the industrial relations system may be unaware, unless and until it is explained to them, of the differing role of statutory bodies established by the FW Act, such as the Commission and the Ombudsman.

[28] These factors notwithstanding, an extension of time can only be granted if “exceptional circumstances” exist within the meaning of s. 394(3) of the FW Act, taking into account the factors set out in that section.

(a) Reason for the delay

[29] Mrs Lao claims that she did not know, until the 16 or 17 February (four or five days before lodging her application), about the Commission or the different functions between the Ombudsman and the Commission, nor that there was a legal obligation on a dismissed employee to make application to the Commission within 21 days of a dismissal taking effect.

[30] She claims that she contacted the Commission on the day or the day after discovering that her matter was not being progressed by the Ombudsman. She then completed an application promptly and lodged it four days later. From 23 December until 16 or 17 February she had wrongly assumed that the Ombudsman was dealing with the matter.

(b) Awareness of the dismissal

[31] Whether she resigned or was dismissed, Mrs Lao was aware that her employment ceased on 22 December when she was asked to return her uniform and pass.

(c) Action to dispute the dismissal

[32] Mrs Lao lodged an on-line enquiry with the Ombudsman on 23 December 2016, the day after her employment ceased. She lodged an application with the Commission 61 days later, promptly after learning that she had not been pursuing her complaint in the correct forum.

[33] In the intervening period she went on a pre-booked four week holiday to China. Whilst overseas, she made one email enquiry to a friend about the progress of her complaint to the Ombudsman.

[34] Another 24 days elapsed between her return from overseas and the application being lodged with the Commission. In this period, she made one (non-responsive) email enquiry to the Ombudsman about the progress of her complaint.

[35] Mrs Lao claims that she told Cloverdale on 22 December that she was not happy that her employer had not offered her future casual employment and that she felt that this had to do with the fact that she had been absent from work due to sickness on her final days of employment (for which she had produced a medical certificate).

[36] Cloverdale dispute this claim. It says that the parting was amicable and that it did not know of any dissatisfaction from Mrs Lao until it was served with her application for unfair dismissal on 23 February.

[37] The employer claims that it paid entitlements that were due on the final day of her employment and requested the return of her uniform and pass. It says that Mrs Lao requested casual employment in her written resignation “if agreed” by the employer. The employer says it did not have a casual position available to offer her, and told her that.

(d) Prejudice to the employer

[38] Cloverdale is a regionally based facility services group. It was self-represented at the hearing. It claims that the Chief Operating Officer Mr Smith and the National Operations Manager Mr Andersen have “spent excessive periods working on attempting to resolve the matter, which in essence has no justifiable basis. The hearing will require myself and a senior manager to be absent from our workplace for essentially a full day each, which has significant impact on our business operations.” 9

[39] The extension of time hearing occupied a half day. I granted the employer’s request to attend by teleconference.

[40] Should an extension of time be granted, a hearing of the jurisdictional matter, merits and remedy would be expected to occupy at least another half day and possibly require further evidence to be led by the company and the applicant given the dispute which emerged at the hearing concerning the relationship between the parties at the time of Mrs Lao’s employment ceased, the disagreement over whether she resigned, and whether she had a right to casual employment.

(e) Merits of the application

[41] The employer raises a substantive threshold question to the application by claiming that Mrs Lao voluntarily resigned in writing by email dated 2 December 2016.

[42] Mrs Lao’s evidence did not dispute that she resigned. However, she claims that she had a right to be re-employed on her return from overseas as a casual employee. She claims that right on the ground that other permanent employees have, allegedly, been offered casual employment in the past.

[43] Without expressing a concluded view on the jurisdictional matter or having explored whether additional evidence is to be called by either party on that point, it is apparent that under the FW Act a person resigning is only to be regarded as having been dismissed if they were “forced to do so because of conduct, or a course of conduct, engaged in by his or her employer”. 10 There is nothing substantive on the face of the evidence currently before the Commission to make such a finding.

(f) Fairness between the person and other persons

[44] While the combination of circumstances that led to Mrs Lao wrongly assuming that her complaint to the Ombudsman was being progressed has its own unique elements, it is not inconceivable that other persons in the workforce would also confuse the role of the Ombudsman in contrast to that of the Commission. This would be more likely to occur or be less easily remediated amongst persons whose primary language is not English.

Conclusion

[45] The length of the delay in lodgement is not insignificant, some three times the legal requirement. There is some, but not insurmountable prejudice to Cloverdale should an extension be granted.

[46] If an extension is granted, Mrs Lao’s case faces a further significant jurisdictional hurdle given that the evidence to date, on the face of it, gives weight to Cloverdale’s contention that she resigned her employment.

[47] Mrs Lao acted promptly (the day after her employment ceased) in lodging a complaint with the Fair Work Ombudsman. She acted reasonably promptly (that day or the next day to complete her application and four days later to lodge it) when advised by the Ombudsman that her complaint needed to be pursued in the Commission. Her difficulty is that these events occurred 61 days apart. It is her conduct during those 61 days which is important in deciding this matter.

[48] Whilst raising a dismissal complaint with the incorrect Fair Work authority is an understandable error, what is not so readily excused is Mrs Lao’s failure to take the action recommended by the Ombudsman’s automated reply of 23 December and click the link to read the Ombudsman’s advice to her. That advice was specific to her complaint, was addressed to her by name, and directed her to the Commission, as the correct forum for pursuing a complaint of this nature. For each of the 61 days her application had not been lodged (including the 40 days out of time), this advice sat inside a link in an email Mrs Lao had in her email in-box. Mrs Lao accessed that email on 23 or 24 December and again on 7 February to obtain the Ombudsman’s email address, yet still did not read it carefully or do as it recommended.

[49] Nor can I so readily dismiss the fact that on 7 February Mrs Lao sent an email to the Ombudsman’s ‘no reply’ email account, despite express direction in the Ombudsman’s email not to do so.

[50] Given Mrs Lao’s capacity to speak, read and write basic English, and the fact that her friend and support person Mr Toulmin was able to assist in this regard, I do not consider the fact that English is not her primary language to be a sufficient explanation for Mrs Lao not carefully reading and acting on the Ombudsman’s automated email reply of 23 December. It is not couched in technical terms. Nor do I consider it a sufficient reason to explain why Mrs Lao send an email on 7 February to an email address that she had been expressly advised was non-responsive.

[51] Whilst Mrs Lao’s four week overseas holiday was booked before she ceased employment, another 24 days elapsed after her return to Australia before she lodged her application. Although she made two attempts to find out what was happening (the 7 February email and the final, successful, telephone call to the Ombudsman that directed her to the Commission) that post-return delay (including the fact that the 23 December email reply could have been carefully read and re-read at any time) suggests a genuine interest in perusing her complaint but not a sufficient degree of intensity or urgency in doing so.

[52] Having regard to all the circumstances I do not consider that exceptional circumstances exist so as to extend the time for the statutory lodgement period.

[53] Mrs Lao’s application for an extension of time is rejected and her application dismissed.

[54] An Order to this effect is issued.

DEPUTY PRESIDENT

Appearances:

H. Lao, Applicant for herself.

D. Smith and S. Andersen, for the Respondent.

Hearing details:

2017.

Melbourne:

June, 16.

1 MA00022

2 Section 394(2)(a) FW Act

3 Section 394(3) FW Act.

4 [2011] 203 IR 1

5 Ibid [13].

6 Email 2nd December 12.09 pm from Helen Lao to Cloverdale

7 Exhibit A1. This exhibit includes a sequence of email correspondence to and from the Ombudsman 23.12.16 at 1.38pm, 23.12.16 at 7.01pm and 7 February at 9.07pm

8 Exhibit A2

9 Cloverdale written submission (by letter) 6 June 2017

10 Section 386(1)(b) FW Act

Printed by authority of the Commonwealth Government Printer

Hongjuan (Helen) Lao v Cloverdale Admin Services Pty Ltd