Josie Marie Deacon v Pets Health Pty Ltd
[2023] FWC 665
•20 MARCH 2023
| [2023] FWC 665 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Josie Marie Deacon
v
Pets Health Pty Ltd
(U2023/1550)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 20 MARCH 2023 |
Application for unfair dismissal remedy – extension of time – in-time lodgement blocked by spam filter – neglect and inadvertence in subsequent weeks – whether exceptional circumstances – discretionary considerations – extension not granted
Josie Marie Deacon (Ms Deacon or the applicant) has applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy in relation to a dismissal by Pets Health Pty Ltd (Pets Health, the respondent or the employer) on 9 January 2023.
Ms Deacon’s application is dated 29 January 2023. It was received by the Commission by email on 27 February 2023.
The application is notionally twenty-eight days outside the statutory 21-day period for making unfair dismissal claims. Ms Deacon submits that if out of time, an extension should be granted.
A directions hearing on the extension of time issue was held on 9 March 2023. Attached to the Notice of Listing, my chambers sent the following IT Service Desk email to the parties for their consideration:[1]
“From: [Fair Work Commission] IT Service Desk [email redacted]
Sent: Tuesday, 28 February 2023 12:14 PM
To: [Fair Work Commission client services employee] [name redacted]
Subject: Ticket# 90030649 | Missing email from 29/1/23 FW: Form F2 unfair dismissal letter - Josie Deacon
Good afternoon [name redacted],
I hope you are well. I have run a number of searches with good results.
- Sender did send the email 29/01/2023
- This email hit our Gateway (first port of call for all emails) @ 29/01/23 approx. 11pm
- The email failed a Anti-spam scan and was tagged as SPAM and routed to SPAM Quarantine
- The email failed to reach the SPAM Quarantine offbox despite numerous attempts over 3 days - logs show a connection error, which I am investigating
- The email was ultimately rejected as too old on the 02/02/23
- An email was generated for the sender to notify them of the email not being received.
In plain English, the email was sent, marked as malicious, bounced around a bit and was finally rejected. In terms of lodgment time, the email was never received at our end. Despite getting to our gateway, it never made passed that point and would be considered undelivered.
I hope that gives you all you need. If you have any questions, please reach out on Teams.
Cheers
[IT Service Desk employee] [name redacted]”
The respondent opposed Ms Deacon being granted an extension of time.
I issued directions requiring the parties to file any additional materials on the extension of time issue by 15 March 2023. Materials were received from Ms Deacon. The employer relied on its response of 3 March 2023 (F3).
I conducted an extension of time hearing on 16 March 2023. I heard evidence from Ms Deacon.[2] Ms Deacon’s evidence was honest and plausible. She readily made concessions as to errors or inadvertence on her part.
Facts
I make the following findings.
Ms Deacon is a resident of Adelaide. She was employed by Pets Health as a Vet Nurse in training until dismissed on 9 January 2023. Her dismissal took effect that day.[3]
In the days immediately following, Ms Deacon considered her dismissal unfair.
Ms Deacon had no contact with the employer after being dismissed either generally or with respect to her dissatisfaction with the dismissal or the prospect of taking action.
Approximately one week after being dismissed, Ms Deacon telephoned the Fair Work Commission. She was advised of the process for making an unfair dismissal claim and that a claim needed to be made within twenty-one days of her dismissal taking effect. Ms Deacon correctly calculated that her application had to be lodged by 30 January 2023.
Despite being encouraged by others to commence proceedings, Ms Deacon took her own counsel. As the 21-day deadline approached she made a decision to proceed with a claim.
Ms Deacon downloaded the unfair dismissal claim form from the Commission’s website. She populated, signed and dated the form on 29 January 2023.
At 11.56am on 29 January 2023 Ms Deacon sent the application via email to the following email address: “[email protected]”. Her covering email stated:[4]
“Hello there,
Please find attached Form F2 and my dismissal letter as requested in the form. Please advise me on how I can pay the required application amount, and let me know what else you require.
Many thanks,
Josie Deacon”
Ms Deacon did not hear back from the Commission about payment of the filing fee. No fee was then paid.
Unknown to Ms Deacon at the time, her email had failed an anti-spam scan and was routed to spam quarantine.
Three days later, at 2:15pm on 1 February 2023 Ms Deacon received an automatically generated email notifying that her email to the Commission on 29 January 2023 had been characterised as a suspected spam email (spam email notification).[5]
Between 1 February 2023 and 8 February 2023, Ms Deacon went on holiday. As she was on holiday, she did not check all emails in her inbox. She read the spam email notification on or about 7 February 2023. As Ms Deacon was on holiday, she did not take immediate action to follow up what had occurred.
Having returned from holidays, between 9 February 2023 and 19 February 2023 Ms Deacon did not take action to follow-up the status of her application. Ms Deacon decided against sending another email to the Commission as she assumed further emails would be met with a similar spam characterisation bounce-back message. Ms Deacon contemplated telephoning the Commission during business hours but did not do so because she was in new employment and considered that a telephone call during her lunch period could be rushed.
On 19 February 2023 Ms Deacon decided to communicate via an online portal she located on the Fair Work Ombudsman (FWO) website. Ms Deacon was unaware that the Fair Work Ombudsman was a different body to the Commission and assumed that she was sending her enquiry to the same body to which she had emailed her claim. At 5.33pm that day Ms Deacon sent the following enquiry to the FWO via an online form:[6]
“I had filled out and sent an F2 form to you guys but recently I’ve received an email from [email protected] saying my email was suspected spam. How do I proceed? Many thanks, Josie”
Ms Deacon checked the FWO portal the following day (20 February 2023). There was no reply. She did not otherwise check the portal until five or six days later (weekend of 25 and 26 February 2023).
Unbeknown to Ms Deacon, on 22 February 2023 the FWO had responded via the portal to her enquiry, advising as follows:[7]
“Hi Josie, Thank you for your enquiry. It appears you are enquiring about the lodgement of the Fair Work Commission Form 2 (unfair Dismissal Form). Please note that the Fair Work Ombudsman is unable to assist with this enquiry. Form 2 is a request for assistance on an Unfair Dismissal case. Unfair Dismissal matters are lodged through the Fair Work Commission. You can seek further assistance regarding this matter by contacting the Fair Work Commission. Please see below contact details. Regards, Stewart Fair Work Ombudsman”
Ms Deacon read this advice on the weekend of 25 and 26 February 2023.
On 27 February 2023 Ms Deacon telephoned the Commission. Following her conversation with a Commission staff member, at 4.02pm that day she re-sent her application by email, along with a copy of the 29 January 2023 email and the 1 February 2023 spam email notification.[8]
On 28 February 2023 Ms Deacon received an application acknowledgement email from the Commission. She then paid the filing fee.
Consideration
Status of the application
The first issue requiring determination is whether Ms Deacon’s application is out of time. Only if it is out of time is an extension of time required.
It is uncontroverted that Ms Deacon sent an email to the Commission attaching her application on 29 January 2023. This was within the 21-day period. The email was sent from an established email address of a dismissed employee to an email address of the Commission that was advised for the receipt of unfair dismissal claims. Despite this, the email hit the Commission’s “gateway” but failed an anti-spam scan and was routed to spam quarantine. From there, a bounce-back spam email notification of 1 February 2023 was sent and the email was rejected by the system as “too old” on 2 February 2023.[9] It had neither been accessed, opened or read by any Commission officer or electronic system.
The Fair Work Commission Rules 2013 (Rules) permit an application to be “lodged” by emailing the document to an email address approved by the General Manager for the lodgement of documents by email.[10] However, it may not necessarily be “made” within the meaning of s 394(2) at the time it is “lodged”.[11]
When an application is sent by email, as is the case here, the Electronic Transactions Act 1999 (Cth) (ETA) is relevant.
The ETA provides as follows:
“ELECTRONIC TRANSACTIONS ACT 1999 - SECT 14A
Time of receipt
(1)For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:
(a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
(b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:
(i) the electronic communication has become capable of being retrieved by the addressee at that address; and
(ii) the addressee has become aware that the electronic communication has been sent to that address.
(2) For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee's electronic address.
(3) Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 14B.”[12]
In the recently decided matter of Hatch v Woodside Energy Ltd[13] it was observed in relation to s 14A(2) of the ETA:[14]
“Having regard to s.14(A)(2) of the ETA, we understand this to mean that it is to be assumed that the electronic communication is capable of being retrieved once received. This does not apply if there is agreement between the originator and the addressee to the contrary.”
This statutory presumption applies to this matter. No agreement to the contrary existed. Although Ms Deacon’s email of 29 January 2023 was not retrieved in the sense of not being accessed, opened or read by any Commission officer, this is immaterial to whether it was “made” on that day because the statutory presumption of retrieval applies. As the full bench observed concerning the electronic communication in Hatch v Woodside Energy Ltd:[15]
“The fact that it could not be opened does not mean that the application was not made with the 21-day time period, where the presumption is engaged.” (emphasis added)
For the presumption to be engaged it needs to be established that Ms Deacon’s email had been “received” in the sense of having “reached the addressee's electronic address” (s 14A(2) ETA).
Was Ms Deacon’s email received? Section 14B of the ETA is of no assistance in this matter because that provision concerns the place of receipt, not the fact of receipt.
Although Ms Deacon’s email had been sent from a personal email address to an official Commission email site, it had been blocked at the gateway to that site by a spam filter and had been quarantined to spam and then timed out. This was, by dint of technology, a series of acts of rejection and not a singular or collective act of receipt.
Thus, as Ms Deacon’s email of 29 January 2023 had not been received, the application it attached had not been “made” that day within the meaning of s 394 of the FW Act.
I find that the application was not made until 27 February 2023 when Ms Deacon re-sent the 29 January 2023 email (with application attached) and this re-sent email was then received in the Commission’s inbox.
Having not been “made” until 27 February 2023, the application is twenty-eight days outside the statutory 21-day time period for filing unfair dismissal claims. If it is to proceed, an extension of time is required.
Extension of time
Section 394(3) of the FW Act provides:
“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
(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.”
An out-of-time application can only proceed if the applicant can establish that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[16]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[17] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[18]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[19]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[20]
I now consider the factors set out in s 394(3).
Reason for the delay (section 394(3)(a))
The reason for delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation.[21] The absence of an explanation for any part of the delay will usually weigh against an applicant. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[22]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[23]
In this matter, the delay period is the twenty-eight days between 31 January 2023 and 27 February 2023 (inclusive).
The evidence clearly establishes, and I so find, that the application would not have been late if it had been received by the Commission on 29 January 2023, being the day Ms Deacon tried to email her application. The non-receipt occurred because the applicant’s email was characterised as spam by the Commission’s spam filter. Had this not occurred, the application would have been made within time and no delay would have arisen.
Thus, the fact of delay was occasioned by that circumstance. That circumstance was unusual and one that clearly and weightily points to a finding of exceptional circumstances.
However, the unusual circumstance that caused delay in the first instance does not explain why the application was not filed for a further thirty days (making it twenty-eight days late). The explanation for that bears considerably on Ms Deacon’s conduct during the delay period.
During the delay period Ms Deacon materially contributed to the length of the delay through neglect and inadvertence:
Ms Deacon did not pay attention to her in-box after sending her email on 29 January 2023 despite knowing that she had not paid a filing fee and was awaiting communication from the Commission in that respect. Being on holidays during the first week of February 2023 is only somewhat of a reasonable explanation for this oversight. Two days (30 and 31 January) passed in this period before Ms Deacon’s holidays commenced (though on those days she was unaware of the spam filter having refused receipt of the application). Whilst on holidays Ms Deacon had access to her in-box. It was Ms Deacon’s decision to prioritise other electronic communication received by her during her holidays over the Commission’s 1 February 2023 spam email notification in her in-box.
A further six days passed before Ms Deacon noticed and read the spam email notification on 7 February 2023 but then took no action to protect her interests for another twelve days, until 19 February 2023. Whilst Ms Deacon was working full time during this period her explanation for this delay (that making enquiries during a working day lunch break may be rushed), whilst a view genuinely held, is not objectively reasonable. A telephone call could have been made to the Commission (as Ms Deacon had done in the week after her dismissal) and even if a call was queued or not immediately answered an attempt to advance her interests would have been made.
Ms Deacon decided on 19 February 2023 to lodge an on-line inquiry, and did so with the wrong fair work agency. Whilst it is understandable that a lay person such as Ms Deacon may have been confused by the names of different fair work agencies, this conduct, objectively considered was not sufficient to protect her interests. Ms Deacon had possession of the application she had filed. That application made it clear that it was made to the Commission. Ms Deacon also had the Commission’s web site details – she had downloaded the application form in January 2023 from that site. In contacting the FWO and not the Commission Ms Deacon made a genuine mistake, but one that was avoidable had more care been taken. Further, making an on-line inquiry was inviting delay in circumstances where Ms Deacon had some doubt as to the fate of her application given the earlier spam email notification. Even though it is understandable that Ms Deacon may have by then lost confidence in the Commission’s email system as a reliable method of communication, it was foolhardy of Ms Deacon to rely on an on-line inquiry system when she had the Commission’s phone number and had previously successfully made a call about her unfair dismissal rights.
Ms Deacon was not regularly attentive to a reply to her on-line inquiry. She checked for replies only once in a period of the seven days that followed. Consequently, she missed the FWO’s reply of 22 February 2023 until at least three if not four days later.
The overall consequence was, as Ms Deacon stated in evidence, that she waited until she had a day off work on 27 February 2023 to get to the bottom of what had occurred and the implications for her unfair dismissal claim.
Only on 27 February 2023 did Ms Deacon move with urgency after being told to re-send her application and earlier email. By then, twenty-six days after the spam email notification of 1 February 2023 had passed.
Due to this tardiness and inadvertence, an application which could have been re-sent shortly after receiving the 1 February 2023 spam email notification was not re-sent until 27 February 2023:
had Ms Deacon acted immediately on the 1 February 2023 spam email notification and re-sent her application the next day, the delay period would have been two days, not twenty eight days;
had Ms Deacon acted on the 1 February 2023 spam email notification immediately after returning from holidays on 8 February 2023 and re-sent her application the next day, the delay period would have been nine days, not twenty eight days; and
had Ms Deacon acted on the 1 February 2023 spam email notification by contacting the Commission on 19 February 2023 instead of the FWO and re-sent her application that day, the delay period would have been nineteen days, not twenty eight days.
That Ms Deacon’s 29 January 2023 email, sent as it was from a private citizen’s email address to the correctly notified Commission address, was rejected by the Commission’s spam filter explains the fact of delay, was an unusual occurrence and points weightily to a finding of exceptional circumstances.
However, noting that a reasonable explanation for the entirely of a delay period is not required if the circumstances are otherwise exceptional, the tardiness and inadvertence by Ms Deacon during the delay period weighs against that finding as none of the circumstances experienced by Ms Deacon during the delay period were unusual or out of the ordinary.
Considered overall, this factor weighs materially but not overwhelmingly in favour of a finding that the reason for late lodgement by twenty-eight days was due to an exceptional circumstance or a combination of circumstances that were collectively exceptional.
Awareness of the dismissal taking effect (section 394(3)(b))
Ms Deacon was aware of her dismissal taking effect on 9 January 2023, and its reason.
In the circumstances, this is a neutral consideration.
Action taken to dispute dismissal (section 394(3)(c))
Ms Deacon held a view shortly after dismissal that her dismissal was unfair.
She did not communicate with the employer after dismissal, preferring to pursue this legal option.
The consequence of Ms Deacon’s tardiness in the delay period meant that the employer had no notice of Ms Deacon’s claim or intent to claim until after 27 February 2023. That was forty-nine days after dismissal took effect and twenty-eight days beyond the statutory limitation.
However, Ms Deacon had taken deliberative action on 29 January 2023 to lodge a claim.
In the circumstances, this is a neutral consideration.
Prejudice to the employer (section 394(3)(d))
Pets Health did not advance any specific prejudice should an extension be granted. A claim would have to be responded to, involving time and cost. That notwithstanding, the nature of prejudice in this matter is not unique.
However, the absence of prejudice would not itself be a reason to grant an extension.[24]
In the circumstances, this is a neutral consideration.
Merits (section 394(3)(e))
The dismissal appears to have been on the ground of misconduct.
As I have not heard evidence from both parties, it is not possible to express even a provisional view on the strength of the respective cases.
In this matter, this is a neutral issue.
Fairness between persons in similar position (section 394(f))
This factor does not arise in this matter.
Conclusion
In the context of a statutory time limit of 21-days, the length of delay of twenty-eight days is significant.
The circumstances that caused the delay were unusual and out of the ordinary. Ms Deacon did not contribute to the fact that her application was not received within time. She sought to file in accordance with a lawful (and common) method of lodging claims, used correct email addresses and could not anticipate that the Commission’s system for electronic lodgement would reject her application as spam. This was a most unusual circumstance and, if viewed in isolation, clearly exceptional.
That the attempted in-time lodgement and its non-receipt was caused by circumstances that are uncommon is a weighty reason to grant an extension of time.
However, the non-receipt should not be viewed in isolation. Whilst a dismissed employee prevented from making an unfair dismissal application by the Commission’s technology and not their own inadvertence is a weighty reason for extending time, it is not necessarily a sufficient reason to do so. All relevant circumstances must be considered because an applicant in that situation has a continuing obligation to act attentively to their interests including during any delay period. Were this not the case, tardiness over days, weeks or months could unreasonably circumvent the statutory time limit.
In this matter, an important consideration is that Ms Deacon was notified by the Commission that her application had been blocked by a spam filter three days after she had sought to make an in-time lodgement but did not re-send it for a further twenty-six days.
I take into account that whilst Ms Deacon did not act with urgency in the period of delay, she was not entirely neglectful. She did log an on-line inquiry on 19 February 2023 (albeit to the wrong agency) and did, belatedly, contact the Commission a further eight days later whereupon she immediately re-sent (and made) her application.
Ultimately this matter comes to be decided by assessing Ms Deacon’s blamelessness for her application not having been made within time against Ms Deacon’s subsequent tardy conduct in advancing her interests during the delay period. That conduct materially compounded the delay and caused it to be of significant length in the context of a twenty-one day statutory time limit. The circumstance that caused the delay in the first instance was unusual but none of the circumstances that explain the delay from the time Ms Deacon was notified on 1 February 2023 were out of the ordinary.
Considered overall, I do not find the high hurdle of exceptional circumstances to have been met. Whilst one can be readily empathetic with the circumstances that befell Ms Deacon, she failed in the month following to act with a sufficient degree of urgency to protect her interests so as to mitigate the non-receipt of her application and the length of the delay it occasioned.
Had I made a finding of exceptional circumstances due to the non-receipt of the 29 January 2023 email considered in isolation, Ms Deacon’s tardy conduct during the subsequent delay period would weigh against exercising a discretion to extend time.
Conclusion
As time for late lodgement of application U2023/1550 has not been extended, it cannot proceed further and must be dismissed.
An order giving effect to this decision is issued in conjunction with its publication.[25]
DEPUTY PRESIDENT
Appearances:
Ms J M Deacon, on her own behalf
Ms J Munchenberg and Ms A Wyld, of and on behalf of Pets Health Pty Ltd
Hearing details:
2023
Adelaide (by video)
16 March
[1] A7
[2] A1 Applicant’s Statement of Chronology
[3] A2
[4] A3
[5] A4
[6] A5 page 2
[7] A5 page 3
[8] A6
[9] A7
[10] Fair Work Commission Rules 2013, rr 13(2)(c), 14
[11] Hatch v Woodside Energy Ltd[2023] FWCFB 51, [20]
[12] Electronic Transactions Act 1999, s 14A.
[13] Hatch v Woodside Energy Ltd[2023] FWCFB 51
[14] Ibid [54]
[15] Ibid [56]
[16] Smith v Canning Division of General Practice[2009] AIRC 959
[17] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[18] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[19] [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[20] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[21] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[22] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, at [35]-[45]
[23] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[24] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[25] PR760438
Printed by authority of the Commonwealth Government Printer
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