Mavis Rofe v Greater Bendigo City Council T/A City of Greater Bendigo
[2024] FWC 2211
•19 AUGUST 2024
| [2024] FWC 2211 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mavis Rofe
v
Greater Bendigo City Council T/A City of Greater Bendigo
(U2024/5811)
| COMMISSIONER ALLISON | MELBOURNE, 19 AUGUST 2024 |
Application for an unfair dismissal remedy – application made out of time – whether exceptional circumstances exist warranting an extension of time – extension of time granted
Mrs Mavis Rofe has worked as a School Crossing Supervisor with the City of Greater Bendigo (Bendigo Council) for the past 16 years. It is a job she “adores”, particularly loving the interaction with the children. On 18 April 2024, Bendigo Council made the difficult decision to terminate Mrs Rofe’s employment after receiving independent medical advice which purportedly established that Ms Rofe could no longer perform the inherent requirements of the role. Mrs Rofe asserts that her termination was unfair. Mrs Rofe claims that at the time of termination she could perform the inherent requirements of the job, and she has a physio report supporting this. Mrs Rofe also contends there were issues of procedural fairness around her termination, including that she was not provided with the medical evidence to justify her dismissal.
Following her termination, Mrs Rofe filed an unfair dismissal application. Mrs Rofe posted her unfair dismissal application by regular post on 7 May 2024. The application was received by the Commission on 21 May 2024.
An application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect.”[1] If an application is not made in this time frame, it is out of time and will generally be dismissed. The only exception to this is when the Commission is satisfied that exceptional circumstances exist,[2] and the Commission chooses to exercise its discretion under s.394(3) of the Act to extend the period for the application.
Mrs Rofe’s application was received by the Commission 12 days out of time. This decision considers whether exceptional circumstances exist that warrant the Commission exercising its discretion under s.394(3) to extend the period for Mrs Rofe’s unfair dismissal application.
Relevant Dates, Legislation and Legal Principles
I find that Mrs Rofe’s employment was terminated on 18 April 2024.
While Mrs Rofe argued that she did not understand that her employment terminated until 5 weeks later, the evidence before me clearly indicates that the termination occurred on 18 April 2024. This evidence includes:
The termination letter dated 18 April 2024 that was read and presented to Mrs Rofe at a meeting on 18 April 2024. The letter states “…your employment… will be terminated, effective 18 April 2024.”[3]
The witness evidence of Ms Anne-Marie Flood, Mrs Rofe’s support person who attended the meeting on 18 April 2024. Ms Flood confirmed she had understood termination occurred 18 April 2024.
Evidence from Mrs Rofe that she attended her lawyers on 19 April 2024, and was told she needed to make an unfair dismissal application within 21 days.
For Mrs Rofe’s unfair dismissal application to have been made within the appropriate time (i.e. 21 days after the dismissal took effect), it needed to have been made by midnight on 9 May 2024. The application was filed in the Commission on 21 May 2024, and is 12 days late.
For Mrs Rofe’s unfair dismissal application to now proceed, it is necessary for her
to obtain an extension of time in which to make the application. Section 394(3) of the Fair Work Act 2009 (Cth) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
the reason for the delay;
whether the person first became aware of the dismissal after it had taken effect;
any action taken by the person to dispute the dismissal;
prejudice to the employer (including prejudice caused by the delay);
the merits of the application; and
fairness as between the person and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[4]
The meaning of the term ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[5] It is accepted that 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, can be considered exceptional.[6]
I will now consider each of the matters under s.394(3).
Considerations under s.394(3)
What was the reason for the delay?
Mrs Rofe is 84 years old and by her own admission is “not technologically savvy.”[7] She lives on her own and does not have a computer or internet at home. She does not have access to, or regularly use, a computer or the internet at another location. Mrs Rofe does know how to access emails on her phone. However, in general, she relies on her son or her friend, Ms Flood, for support with technical matters.
On 19 April 2024, the day after her termination, Mrs Rofe visited her solicitor at Zaparas Lawyers (Zaparas). Mrs Rofe had previously engaged Zaparas in relation to a WorkCover claim. Zaparas advised Mrs Rofe that they would charge “four or five thousand dollars” to run an unfair dismissal claim. Mrs Rofe decided not to engage Zaparas in relation to her unfair dismissal claim. Zaparas printed out a hard copy of the unfair dismissal application for Mrs Rofe and told her she must file the application “within 21 days.”
Over the next few weeks, Mrs Rofe’s son was ill and spent some time in hospital. The first opportunity for Mrs Rofe’s son to assist her with her unfair dismissal application was 7 May 2024. On 7 May 2024, Mrs Rofe and her son filled out the hard copy unfair dismissal application. Mrs Rofe then took the application to Zaparas to check she had filled it out correctly. After the form was checked, the receptionist at Zaparas gave Mrs Rofe an envelope to post the application.
Mrs Rofe posted the application after 5pm on 7 May 2024. The envelope received by the Commission is post marked with the date 9 May 2024.[8] The application was received by the Commission on 21 May 2024.
Mrs Rofe gave evidence that she did not have access to a computer or the internet to file the application. She did not think to call the Commission, and she did not think to send the letter by express post. Mrs Rofe gave evidence that she initially thought the “21 days” started from the date her notice was paid up to (23 May 2024) or the date she signed the application.
None of the reasons provided by Mrs Rofe considered individually would provide an acceptable reason for delay. In particular, I note the following three matters:
First, being elderly and “not technologically savvy”, in and of itself, does not provide an acceptable reason for delay as there are numerous ways an Applicant can lodge an unfair dismissal in the 21-day time frame which do not rely on electronic applications. This includes by hand delivery at the Commission, by post allowing adequate time, or by telephone. [9]
Second, Mrs Rofe’s claim that she was not aware that the 21-day time frame commenced from the date of her termination does not provide an acceptable argument for delay. Ignorance of the unfair dismissal jurisdiction and the statutory time limit is not considered an exceptional circumstance.[10]
Third, in this case, the time taken by Australia Post to deliver the application does not provide an acceptable reason. In previous Commission cases unexpected delays with Australia Post will sometimes provide an acceptable reason for delay.[11] In this case, it is highly unlikely that a letter posted after business hours on 7 May 2024 in Bendigo would have been delivered to the Commission in Melbourne by 9 May 2024. Even if Australia Post had delivered the application within the timeframe advertised on their website for regular post, i.e. 3-5 business days, the application would still have been out of time.
However, I am of the view that when a combination of Mrs Rofe’s individual circumstances are considered together, there is an acceptable reason for delay. These combined circumstances include:
Mrs Rofe is not tech savvy, does not have a computer or internet at home; and
Mrs Rofe relies on the support of her son, a friend and her WorkCover lawyers for assistance with technical and legal matters; and
Mrs Rofe’s son was ill for a substantial period and was not able to assist Mrs Rofe until 7 May 2024; and
While Zaparas were not representing Mrs Rofe in this matter, it appears Mrs Rofe continued to place reliance on Zaparas. Mrs Rofe attended Zaparas to “check” her application on 7 May 2024 and at that time the receptionist provided Mrs Rofe an envelope to post her application. It appears clear that Mrs Rofe reasonably assumed that Zaparas supported her posting the application and therefore the application was not in danger of being out of time.
Taking into account these combined circumstances, I find that the reasons for the delay weigh in favour of granting an extension of time.
When did Mrs Rofe first become aware of her dismissal?
Mrs Rofe argued she did not understand that her employment terminated on 18 April 2024, and at least initially believed her employment was to terminate on 23 May 2024 on the basis she was paid 5 weeks’ notice. For reasons given above at [5] – [6] I have found that termination occurred on 18 April 2024. I note that Mrs Rofe attended Zaparas lawyers on 19 April 2024, where she was advised she needed to file an unfair dismissal “within 21 days.”
I am satisfied that Mrs Rofe had the full benefit of the 21 days to file her application. Accordingly, this matter is neutral in considering whether there were exceptional circumstances.
Did Mrs Rofe take any action to dispute the dismissal?
At the end of the meeting on 18 April, Mrs Rofe stated she was going immediately to her lawyer’s office to discuss the termination. Ms Carmel Rowan, Employee Relations Coordinator at Bendigo Council who was at the meeting, has given evidence that it was clear Mrs Rofe was upset and that the Bendigo Council expected that she would file an unfair dismissal application.
This factor weighs in favour of a finding of exceptional circumstances.
Will the Bendigo Council suffer any prejudice because of the delay?
Neither party submitted that the Bendigo Council would suffer any prejudice because of the delay.
This factor neither weighs for or against a finding of exceptional circumstances.
What are the merits of Mrs Rofe’s unfair dismissal application?
Mrs Rofe claims her dismissal was unfair because she could perform the inherent requirements of the job, and she had medical evidence from her physio to support this. Mrs Rofe also alleges that the termination was procedurally unfair because she was not provided a copy of the medical report relied on by the Bendigo Council to conclude she could not perform the inherent requirements of the job.
Bendigo Council argues the dismissal was fair because Mrs Rofe could no longer perform the inherent requirements of the job. Bendigo Council claims its findings are supported by independent medical advice, and that Mrs Rofe’s medical evidence does not properly consider the requirements of the role. They contend that they met with Mrs Rofe and her son on numerous occasions to explain the situation, and that they also considered reasonable adjustments to Mrs Rofe’s role. However, ultimately, they could not be confident that Mrs Rofe could perform the role safely.
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits of this matter. Mrs Rofe appears to have an arguable case, to which Bendigo Council has an apparent defence. As a result, the merits do not weigh for or against a finding of exceptional circumstances.
Fairness as between Mrs Rofe and other persons in a similar position?
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion – Taking the above matters into account, are there exceptional circumstances justifying an extension of time?
For the reasons given above, I have found that Mrs Rofe’s reasons for delay, and the action Mrs Rofe took to dispute her dismissal weigh in favour of a finding of exceptional circumstances. I have found all other matters to be neutral. Taking into account all of the circumstances of this matter, I am satisfied that there are exceptional circumstances, and I should exercise my discretion to allow a further period of time for Mrs Rofe’s application to be made.
As a result, the application will proceed to a merits hearing. I will set the matter down for a case management conference.
COMMISSIONER
Appearances:
M Rofe, the Applicant
C Rowan, for the Respondent
Hearing details:
2024
31 July
Melbourne
[1] Fair Work Act 2009 (Cth) s.394(2) (‘the Act’).
[2] With reference to matters set out in s.394(3) of the Act.
[3] Exhibit R2, Hearing Book page 24-25.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[5] Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, 5 [13].
[6] Ibid, 5 [13]; Stogiannidis [38].
[7] Exhibit A1, paragraph 11, Hearing Book page 29.
[8] Exhibit A2, Digital Hearing Book page 11.
[9] Fair Work Commission Rules 2024, Rule 15(2)(a) and (b) and Rule 69(2).
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[11] See for example Winnie Wai Ling Leung v Chinese Community Social Services Centre Inc Trading as On Luck Chinese Nursing Home [2015] FWCFB 2106 at [29] – [30]
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