Ming Yen (Tiffany) Liow v Morris Corporation (Aust) Pty Ltd

[2016] FWC 2886

[2016] FWC 2886

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ming Yen (Tiffany) Liow
v
Morris Corporation (Aust) Pty Ltd
(U2016/1513)

COMMISSIONER RYAN MELBOURNE, 9 MAY 2016

Application for relief from unfair dismissal - extension of time.

[1] Ms Liow lodged an application for an unfair dismissal remedy through the e-filing system at 3.06am Saturday 2 April 2016. As Ms Liow was dismissed from her employment on 11 March 2016 she had until midnight on Friday 1 April 2016 to lodge an unfair dismissal application. Ms Liow’s unfair dismissal application was filed after midnight and was therefore out of time. Ms Liow has sought an extension of time in which to file her application. The Respondent opposes the grant of an extension of time.

[2] The parties agreed that the Commission should decide the application for an extension of time on the papers and both parties filed written submissions in support of their respective positions.

[3] Ms Liow emailed an unfair dismissal application at 11.59pm on Friday 1 April 2016 to fwc.com.au.

[4] At 12.03am Saturday 2 April 2016 Ms Liow received an automatic reply from fwc.com.au which advised her that the email in-box she was trying to contact did not exist at that address. The automatic response went on to explain as follows:

“If you are trying to contact the Fair Work Commission, please check you address you are using and amend your address to use the [email protected] format, please note the “gov” part of the address needs to be in place of the “com”.”

[5] Ms Liow resent her application to the fwc.gov.au address.

[6] Ms Liow resides in Perth and the times referred to above are both Western Standard Time which is 2 hours behind Eastern Standard Time and 3 hours behind Eastern Summer Time.

[7] The records of the Commission show that the application was received at 3.36 am on Saturday 2 April 2016. It appears from the Commission records that the application was sent to fwc.gov.au at 3.06am Saturday 2 April 2016.

[8] I note that the time recorded by the Commission’s email system are Melbourne times. Daylight saving was still in place in Melbourne on 2 April 2016 so the time difference between Melbourne and Perth was 3 hours. What this means in a practical sense is that the Commission acknowledged receipt of Ms Liow’s unfair dismissal application at 36 minutes past the midnight deadline and it would appear that Ms Liow sent her application to the Commission at 6 minutes past the midnight deadline.

[9] Whether Ms Liow’s application is only 6 minutes out of time or is 36 minutes out of time the relative shortness of time is not the determinant of whether an extension of time should or should not be granted.

[10] The test for a grant of an extension of time is that set out in s.394(3):

“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.”

[11] What is meant by “exceptional circumstances” was explained in Nulty v Blue Star GroupPty Ltd as being:

“[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]  1

s.94(3)(a) the reason for the delay

[12] Ms Liow clearly acknowledges that she left the filing of her application to the last minute but she explains that the reason for doing so was the amount of time taken after her termination to obtain information from Morris Corporation and to collate the material she wanted to file with her application.

[13] On 14 March 2016 Morris Corporation listed a vacancy on seek.com.au for a Recruitment Advisor based in Perth. Ms Liow applied for this vacancy but she was advised by Morris Corporation on 29 March 2016 that her application was unsuccessful.

[14] Given that an important aspect of the process of retrenching an employee whose job has been declared to be redundant is the consideration of suitable alternative employment so as to avoid retrenchment of the employee, I consider Ms Liow’s actions in applying for the Recruitment Advisor position to be part of her disputing the correctness of the decision to terminate her employment.

[15] Ms Liow also explained that it wasn’t until 29 March 2016 when Morris Corporation rejected her application for the Recruitment Adviser position in Perth that she commenced the process to make an unfair dismissal application.

[16] As Ms Liow put it in her written material:

“It took Morris 16 Calendar days to process my application from start to finish and provide a response, effectively leaving me with 2 days to rush through and submit my UD Application to the FWC. As this is the first ever UD Application I have submitted, I wanted to try and include as much information as I could think of”

[17] Ms Liow’s application is quite voluminous comprising the Form F2 and 17 attachments of 103 pages.

[18] Ms Liow has explained the reason for the delay in filing her application at 6 minutes after the midnight deadline. The inadvertent use of a .com rather than a .gov.au email address caused the delay. The delay was very short and the error in the email address was rectified by Ms Liow within 3 minutes of her becoming aware of the error.

s.394(3) (b) whether the person first became aware of the dismissal after it had taken effect

[19] This criteria does not assist Ms Liow as she clearly acknowledges that she first became aware of the dismissal before it took effect.

s.394(3) (c) any action taken by the person to dispute the dismissal

[20] As noted earlier Ms Liow’s application for the Recruitment Adviser position in Perth was part of a process of disputing the dismissal.

[21] This criteria weighs in favour of the Ms Liow’s application for an extension of time.

s.394(3) (d) prejudice to the employer (including prejudice caused by the delay)

[22] Given that the delay in this matter is a matter of only minutes it is difficult to see how Morris Corporation is prejudiced by the delay.

[23] In its written submissions Morris Corporations contends that:

“The Company is disadvantaged by the lateness of the Application in that it is now required to dedicate resources to making its objection to the Application in circumstances where exceptional circumstances did not impact the Applicant’s ability to lodge an application within the timeframe prescribed by the Act.”

[24] The prejudice contended for by Morris Corporation is simply prejudice caused by the delay in filing the application.

[25] Every employer will suffer some prejudice when an application is filed out of time and an extension of time is granted to the applicant. In the present matter the amount of prejudice suffered by Morris Corporation is minimal.

s.394(3) (e) the merits of the application

[26] An application for an extension of time is not the occasion for the Commission to consider the merits of the case. 2 This must be so considering that neither Ms Liow nor Morris Corporation have put any detailed evidence before the Commission as to the merits of the Ms liow’s case. Both Ms Liow and Morris Corporation made general submissions as to the merits of the substantive application. Both Ms Liow and Morris Corporation raise issues which would need to be considered by the Commission before any determination could be made as to whether or not the dismissal was a case of a genuine redundancy and whether or not the dismissal was unfair.

[27] The most that can be said in relation to the merits of Ms Liow’s application for an unfair dismissal remedy is that this criteria has neutral value in determining the application for an extension of time.

s.394(3) (f) fairness as between the person and other persons in a similar position.

[28] Whilst Morris Corporation identified that a number of other employees were made redundant at about the same time as Ms Liow it appears that no-one else has made an unfair dismissal application. It is clear that no other employees were in a similar position to Ms Liow. This criteria has neutral value in determining the application for an extension of time.

Conclusion

[29] Having considered each of the matters identified by s,394(3) I am satisfied that the criteria considered above under s.394(3)(a) and (c) in combination constitute an exceptional circumstance such that an extension of time is warranted. I note that the prejudice to Morris Corporation is so minimal that it is outweighed by the combination of the maters considered under s.394(3)(a) and (c).

[30] An extension of time is granted to Ms Liow until close of business on 2 April 2016 in which she can file an application for an unfair dismissal remedy. As the Application was filed on 2 April 2016 the application is within time.

[31] This file will be subject to further proceedings as may be determined by the unfair dismissals case management team.

COMMISSIONER

 1   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [13].

 2   Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 [14].

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