Maria Walton v Shamrock Consultancy Pty Ltd T/A Allied Express Transport
[2022] FWC 2466
•15 SEPTEMBER 2022
[2022] FWC 2466
The attached document replaces the document previously issued with the above code on 15 September 2022.
Appearance of the Respondent corrected.
Associate to Deputy President Anderson.
Dated 16 September 2022.
| [2022] FWC 2466 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Maria Walton
v
Shamrock Consultancy Pty Ltd T/A Allied Express Transport
(U2022/7073)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 15 SEPTEMBER 2022 |
Application for an unfair dismissal remedy – extension of time – delay in filing – no exceptional circumstances – application dismissed
On 13 July 2022 Maria Walton (Ms Walton or the applicant) lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment by Shamrock Consultancy Pty Ltd trading as Allied Express Transport (Allied Express or the employer) on 6 June 2022.
Ms Walton’s application was made thirty-seven days after the alleged dismissal took effect, being sixteen days beyond the 21-day statutory time-limit. For the application to proceed, it requires an extension of time. Ms Walton seeks that extension.
This decision deals with whether an extension should be granted.
I issued directions on 26 August 2022.
On 7 September 2022 Ms Walton filed materials.
Allied Express filed a response on 17 August 2022 and submissions on 8 September 2022. Allied Express contend that the application should be dismissed because it is out of time and because the dismissal was not unfair.
I heard the extension of time matter on 14 September 2022.
Ms Walton was self-represented. Allied Express was represented by a company officer.
It is appropriate to reference how this matter came to be dealt with as it had been adjourned twice previously due to Ms Walton’s unavailability.
On 10 August 2022 the chambers of a Commission Vice President advised Ms Walton that her application was out of time and invited her to either submit additional material on the extension of time issue or have the matter proceed on the material submitted. On 15 August 2022 Ms Walton advised the Vice President’s chambers “this is ok what I have sent you I have nothing else to add”.
The matter was allocated to me to determine the extension of time issue.
I held a directions hearing on 26 August 2022. Both parties appeared. Ms Walton requested a hearing as she wished to submit more material. I listed the matter for hearing at 9.30am on Monday 12 September 2022. Ms Walton submitted additional material on 7 September 2022.
On the Friday prior to the hearing (9 September 2022) Ms Walton emailed my chambers to the effect that she could not attend the hearing listed for 9.30am the following Monday due to work commitments.
Despite inviting but not hearing further from Ms Walton that day, I agreed to adjourn the hearing to 4.00pm that Monday.
On the morning of the hearing (12 September) the employer enquired of my chambers as to the hearing, advising that Ms Walton was seeking an adjournment stating she was ill. Ms Walton had sent the employer an adjournment email, it appears, at 8.03am but had not contacted my chambers.
My chambers emailed Ms Walton on the morning of 12 September 2022 to ascertain her intention, advising that the hearing would proceed as (re)listed or the matter could be dealt with on the papers if agreed by the parties. Ms Walton made no contact to advise her position.
At the request of my chambers, the employer forwarded the email it had received from Ms Walton that morning. It read “Good morning I need to cancel this please til end of week I have gastro very sick came down with it yesterday.” This email had not been sent by Ms Walton to my chambers.
Half an hour before the rescheduled 4.00pm hearing, and after again being reminded that the hearing was to proceed, Ms Walton sent two emails to my chambers. The first read “Sorry I’m sick as I said won’t be attending this meeting”. The second read “I have the 14th September off”.
Following receipt of these emails, I agreed to further adjourn the hearing to 14 September 2022 unless Ms Walton consented to the matter being determined on the papers.
No such advice was provided.
The hearing proceeded on 14 September 2022 with both parties in attendance.
I set out this procedural history as it illustrates the considerable steps the Commission has taken to accommodate Ms Walton and provide procedural fairness. In doing so I note that litigation is not cost or consequence free. Each adjournment, each follow-up by chambers and each delay in responsiveness impacts the efficiency of a busy publicly funded tribunal such as the Commission and its capacity to provide a fair go to its many litigants, of which Ms Walton is but just one. Litigation also impacts responding parties; in this case multiple listings have required the additional attention of the respondent employer.
In a further endeavour to accommodate Ms Walton it became apparent during the hearing that Ms Walton was relying on a document not produced. Despite the earlier directions hearing and subsequent directions having provided that opportunity, I briefly adjourned the hearing on 14 September to allow Ms Walton to locate the document and forward it. That was done. The document (marked A8) is referenced in this decision.
Ms Walton gave evidence[1] and both parties made oral submissions. I take Ms Walton’s evidence into account. However, it was vague and in parts inconsistent. It is to be approached with some caution.
Following the hearing I reserved my decision.
Facts
I make the following findings.
Allied Express operates a transport and logistics business including in New South Wales.
Until dismissed, Ms Walton had worked for Allied Transport for eight months as a Customer Service Representative.
She was dismissed, it would appear, for non-attendance. Ms Walton’s case appears to be that she had been hospitalised and was sick.
Ms Walton’s unfair dismissal application was emailed to the Commission on 13 July 2022 as a scanned document from a print shop in Sydney.
The application is completed by hand, by Ms Walton.
The application is dated 21 June 2022.
Consideration
Section 394(3) of the FW Act provides:
“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.”
Being sixteen days out of time, Ms Walton’s application can only proceed if she can establish that “exceptional circumstances” exist within the meaning of s 394(3).
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[2] A decision whether to extend time under section 394(3) involves the exercise of a discretion.[3]
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.”[4]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[5]
I now consider each of the factors in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for the delay 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.[6] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. 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.[7]
However, a reasonable explanation 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.[8]
The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for the delay is acceptable or credible.[9]
Ms Walton’ advances two reasons for the delay.
Sickness
Firstly, Ms Walton says she was sick at the time of dismissal and following. She says that after dismissal she “slept basically two months after dismissal and never got out of bed”.[10]
In her unfair dismissal application Ms Walton says she was “sick influenza one month”. In her written statement, Ms Walton says she was sick with depression.
Ms Walton advanced no medical evidence let alone a medical statement about her post-dismissal health. She said that her “doctor is away” and that she could not obtain her medical records from another doctor in the practice.
A dismissed employee experiencing stress and anxiety after dismissal is common, not unusual. Without more, it is not an exceptional circumstance.[11]
A dismissed employee who has filed a late application also has an obligation to adduce evidence to support findings of fact on which they claim exceptional circumstances. Mere assertion is not evidence.
Aside from the absence of supporting medical evidence, Ms Walton’s statement that sickness prevented her from filing her application does not sit comfortably with her statement that she “applied for jobs” in this very period. At the hearing she claimed that she had applied for “500 jobs” from her sick bed following dismissal. Applying for jobs requires a minimum level of concentration and attention to detail, as does applying for an unfair dismissal remedy.
Whilst I do not discount the possibility that Ms Walton was sick following her dismissal, there is no basis to conclude that the sickness was such that it impeded her physical capacity or cognitive thinking such that an application could not have been made. Indeed, as considered below, Ms Walton’s second explanation for the delay asserts that she did search the Commission website in this very period, did download and complete a hard copy unfair dismissal application, and did attend a print business to have the application emailed.
This first explanation for the delay is not persuasive.
Application incorrectly emailed
Secondly, Ms Walton says in her application that her “paperwork” was sent to the “unfair dismissal union department. I was given wrong details when I rang to get address”. In her statement, Ms Walton says that “when I rang I was given wrong contact details could be my fault or theirs not sure”.
On this issue, Ms Walton’s evidence was vague. She could not recall the name of the “unfair dismissal union department” she says her material was emailed to. She says she was told the name by a friend but provided no further details. She could not depose to whether it was a business assisting employees with unfair dismissal applications, or a trade union. She said that she did not know the email address to where material was sent. She said that she was not sure whether the material emailed included her application as she opined that the material was sent to this unnamed organisation before the date which appears on her application.
Mr Walton was also not able to indicate when or what organisation she “rang” or who gave her the wrong contact details.
As to the incorrect emailing, Ms Walton recalled going to the Bankstown print shop with her “materials” and telling the shop employee to email it to the “unfair dismissal union department”. She says that she had no email address with her, and did not know what the organisation was. She said that she left it to the shop employee to work that out and send it to the correct place. In cross examination, Ms Walton said that the reason why she left it to the shop employee to work out was because she did not have her glasses with her, and therefore could not see clearly as she is short-sighted.
I adjourned the hearing briefly to allow Ms Walton to locate in her records what she said would be a document with details of what the print shop sent. The document located and relied upon by Ms Walton (A8) is incomplete. It is a single blank page with Ms Walton’s name, signature and date (21.6.2022) in handwriting. It is possible that it is a page of a form as it has small typewritten text “Page 5 of 5” under the date, but it is speculation as to what form it may be and what the form or signature page contained. The document (howsoever described) appears to have been sent from the Bankstown print shop to an email address on 21 June 2022 at 3:46pm with a subject line “Fwd: signature”. The email address appears to be an individual’s email address and not that of a trade union or other organisation. The email was cc’d to Ms Walton (under her name Ms Selkrig). Ms Walton said in evidence that the recipient email address is that of the shop employee. She speculated that the shop employee may have mistakenly sent the document to himself.
Ms Walton’s further evidence was that about a fortnight later (date unknown) believing her “materials” had been sent, she received a phone call from “a lady at the unfair dismissal union department” telling her that her application had been sent to the wrong place. On 13 July 2022, Ms Walton then went back to the Bankstown print shop and the shop scanned and emailed her application to the Commission’s Sydney registry.
Was Mrs Walton’s application initially emailed to the wrong organisation by the Bankstown print shop and if so, is this a reasonable explanation for delay in the context of exceptional circumstances needing to be established?
For two reasons, I do not so conclude.
Firstly, the evidence is inadequate to make such a finding. It is possible that this occurred given that the application emailed to the Commission from the Bankstown print shop on 13 July 2022 is dated 21 June 2022. However, given the vagueness and inconsistency in Ms Walton’s evidence, whilst something was emailed it is not possible to make findings to the requisite standard of proof that it was an unfair dismissal application which was emailed to the wrong recipient by the Bankstown print shop. It cannot be safely concluded that the application was in the materials emailed on 21 June 2022. The signature page accompanying the email sent on 21 June 2022 at 3:46pm is not laid out or hand-populated in the same way as the unfair dismissal application that was ultimately filed. The unfair dismissal application signature page as filed is stated to be page “6/7”, not “page 5 of 5”.
Secondly, if I am wrong on this and working on the premise that I was satisfied as a matter of fact that the application was emailed to a wrong address on 21 June 2022, does this point to an exceptional circumstance?
It is well established that the conduct of an applicant, including conduct prior to the delay period, is relevant in assessing whether the circumstances are exceptional.
In this matter, Ms Walton failed to meet minimum obligations to ensure her application was emailed to the correct address. Attending the print shop without an email address and then asking a retail employee to determine the correct address and relying on the shop to ‘get it right’ was a significant failure by Ms Walton to attend conscientiously to her interests.
Further, Ms Walton was cc’d in on the email sent by the shop on 21 June 2022 at 3.46pm. To the extent she speculates that the shop employee incorrectly emailed the document to himself she was copied into the email. If there was error of that type, she was inattentive to that fact. Had she been attentive, she could have remediated the error at the time. Further, Ms Walton was unable to explain how her application came to be in the possession of a third party organisation if the shop employee had simply mistakenly emailed the document to himself.
What is not speculative is that Ms Walton had ready access to the correct email address. It was readily able to be located on the same Commission website from which she accessed the application form. The Commission advises persons in plain language how to lodge applications. Ms Walton provided no explanation as to why she did not or could not have sourced such information from the website.
This explanation for the delay is not persuasive.
Considered overall, the explanations for the delay neither individually nor in combination weigh in favour of a finding of exceptional circumstances.
Awareness of the dismissal taking effect (s 394(3)(b))
Ms Walton was dismissed on 6 June 2022.
There is no evidence that Ms Walton was not reasonably able to inform herself of the dismissal and of her rights had she been attentive to them.
Her evidence was that she was told she had been dismissed when she went into work on 6 June 2022.
This a neutral consideration.
Action taken to dispute dismissal (s 394(3)(c))
Ms Walton did not correspond with the employer post-dismissal.
She appears though to have a genuinely held view throughout that her dismissal was unfair. She completed a handwritten application form on or prior to 21 June 2022.
This a neutral consideration.
Prejudice to the employer (s 394(3)(d))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[12]
Allied Express submit that it would incur prejudice including by being unable to defend itself given the passage of time.
I am not satisfied that the delay period is sufficient to establish a special or unique prejudice of this nature. A delay period of sixteen days may dull some memories of relevant events and add marginally to the difficulty of testing evidence, but not materially so in this matter.
A claim would have to be responded to, involving time and cost. That prejudice, whilst real, is not unique.
This notwithstanding, the absence of prejudice would not itself be a reason to grant an extension.[13]
This is a neutral consideration.
Merits of the application (s 394(3)(e))
A hearing on merit would necessarily concern whether Ms Walton was absent from work for good reason. Ms Walton has strongly held views that her sickness and hospitalisation prior to her dismissal render the decision harsh.
As I have not heard evidence of the circumstances of rostered absences, and as the employer’s F3 response provides no particulars in this regard, it is unsafe to draw any conclusion for current purposes.
This is a neutral consideration.
Fairness between persons in similar position (s 394(f))
No evidence or submissions from Ms Walton or Allied Express raise issues of fairness with and between other persons.
In these circumstances, this is not a relevant factor.
Conclusion
The period of delay being sixteen days, in the context of a statutory twenty-one day time frame, is not insignificant.
Ms Walton has the onus of establishing that the circumstances resulting in late lodgement were exceptional. I have found that the reasons for delay do not weigh in favour of a finding of exceptional circumstances, in combination or individually.
All other considerations are neutral or not relevant.
By law, an extension can only be granted if the circumstances are, considered overall, exceptional.
As I have not made a finding of exceptional circumstances, the time for lodging the application cannot be extended.
As Ms Walton’s application is out of time and as the time for lodgement has not been extended, it is unable to proceed. The application is dismissed. An order[14] to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
Ms M Walton, on her own behalf
Mr D Boyle, of and on behalf of Shamrock Consultancy Pty Ltd T/A Allied Express Transport
Hearing details:
2022
Adelaide (by video)
14 September
[1] Statement of Ms Walton A1
[2] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[3] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[4] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[5] 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]
[6] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[8] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[9] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[10] A1
[11] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [62]
[12] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[14] PR745869
Printed by authority of the Commonwealth Government Printer
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