Ms Alison Bell v Institute for Urban Indigenous Health Ltd
[2017] FWC 2150
•27 APRIL 2017
| [2017] FWC 2150 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Alison Bell
v
Institute for Urban Indigenous Health Ltd
(U2016/12770)
COMMISSIONER RIORDAN | SYDNEY, 27 APRIL 2017 |
Application for relief from unfair dismissal.
[1] This jurisdictional decision relates to an application by Ms Alison Bell seeking an unfair dismissal remedy against her former employer, the Institute for Urban Indigenous Health (the Institute).
[2] Ms Bell was terminated on 22 September 2016. Australian Dismissal Service (ADS) lodged an unfair dismissal application on behalf of Ms Bell on 20 October 2016, some 7 days outside the statutory time limit for an employee to make such an application.
[3] The Institute was represented by Ms Jill Hignett, who is a Partner of HR Law.
[4] Witness statements were submitted by Ms Bell on behalf of herself. The Institute relied on statements from Mr Amnon Kelemen and Ms Jessica Arkles, both of whom are from Employee Assist. Neither Mr Kelemen or Ms Arkles were required for cross examination. Ms Bell’s cross examination was conducted during the telephone hearing on 4 April 2017.
[5] The Fair Work Commission can extend the time period for an employee to file an application if the delay in filing the application was due to “exceptional circumstances.”
“Section 394
Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a 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.
Background
[6] Ms Bell began work for the Institute on 30 November 2015 and was terminated on 22 September 2016.
[7] Ms Bell contacted Employee Assist on 23 September 2016. Employee Assist is a Melbourne based firm which provides industrial relations advice and representation to employees. Ms Jessica Arkles sent Ms Bell a confirmation email which required Ms Bell to respond to her email in order for Employee Assist to commence proceedings on behalf of Ms Bell.
[8] Despite contacting Ms Arkles a second time, Ms Bell did not respond to Ms Arkles’ email as requested.
[9] Ms Bell set about collating the information that was requested by Ms Arkles. This required a few phone calls to the payroll department of the Institute. Ms Bell claims that she left voicemail messages for Ms Arkles on both 3 and 4 October 2016. Ms Arkles has no record of any phone messages from Ms Bell.
[10] Ms Bell claims that she is not sufficiently computer literate to attach documents to an email and that she was trying to obtain a postal address so that she could post her bundle of documents. Ms Bell claims that she spoke to a male employee of Employee Assist who gave her a postal address of Level 1, 585 Little Collins St, Melbourne, 3000. Employee Assist deny giving Ms Bell this address on the basis that it is a service address only which is similar to a P.O Box.
[11] Ms Bell claims that she sent her bundle of documents to the above address by way of Express Post on 4 October 2016. Ms Bell has submitted a delivery receipt from Australia Post which is dated 5 October 2016. The package was signed for by S Firth. Employee Assist deny receiving any package from Ms Bell and have no knowledge of any individual known as S Firth.
[12] Ms Bell’s application was not lodged by the statutory deadline of 13 October 2016. On 19 October 2016, Ms Bell telephoned Ms Arkles to seek an update on her claim. Ms Arkles denied receiving any information from Ms Bell and advised her that she was now too late to lodge an application.
[13] Ms Arkles claims that at no time did she receive instructions from Ms Bell to lodge an unfair dismissal application.
[14] On 20 October 2016, Ms Bell contacted Australian Dismissal Services (ADS) who lodged an unfair dismissal claim on her behalf, 7 days outside the statutory limit.
[15] Ms Bell claims that her application was late due to the error of her previous representative, Employee Assist.
Statutory Requirements
[16] The principles to be followed in determining the existence of an exceptional circumstance are well established and are set out in a decision of a Full bench in Nulty v Blue Star Group Pty Ltd 1;
[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.
Section 394(3)(a) – reason for the delay
[17] Ms Bell claims that she sent a bundle of documents to Employee Assist on 4 October 2016 and has provided an Australia Post receipt as evidence of this action. Relevantly, this receipt does not show the address to which the express post envelope was delivered or how it was addressed.
[18] Under cross examination, Ms Bell accepted that she may not have put the Company name, “Employee Assist” on the envelope. On the basis that this address was merely a service address, the person who signed for the envelope, S Firth, would not have necessarily known that Ms Arkles works for Employee Assist.
[19] If the envelope was not properly addressed to Employee Assist then there were no guarantees of the envelope ever reaching Employee Assist. It is not possible for the Fair Work Commission (FWC) to find “representative error” if there is no evidence of the representative ever receiving any information from their prospective client or any instructions to file an application.
[20] Ms Bell submitted that she sought alternative representation after being told by Ms Arkles that Employee Assist would not accept her instructions on 19 October 2016. I note that ADS submitted an application the following day at 4.19pm. after being contacted by Ms Bell earlier that day.
Section 394(3)(b)- whether the person first became aware of the dismissal after it had taken effect
[21] It is not in dispute that Ms Bell was verbally notified of her termination by the Institute on 22 September 2016.
[22] Ms Bell received her termination letter by post on 28 Setpember 2016.
Section 394(3)(c)- any action taken by the person to dispute the dismissal
[23] Ms Bell contacted Employee Assist the day after her termination. It is not in dispute that Ms Bell contacted the Institute on 23 September 2016 to seek copies of relevant documents pertaining to her employment and termination.
[24] It is not in dispute that Ms Bell contacted ADS on 20 October 2016, one day after being advised by Employee Assist that they would not accept her instructions.
Section 394(3)(d) – prejudice to the employer
[25] It was held in Brodie-Hans v MTV Publishing Pty Ltd that prejudice to an employer will weigh against the granting of an extension of time. However, it is up to the employer to produce evidence that they would be prejudiced if an extension of time was granted.
[26] The Institute submitted that they would suffer prejudice if Ms Bell was granted an extension of time on the basis that the original complaint against Ms Bell has subsequently resigned their employment from the Institute’s client.
[27] I have taken this into account.
Section 394(3)(e) - Merits of the Application
[28] In Kornicki v Telstra-Network Technology Group 2 (Kornicki) the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
[29] Detailed evidence on the merits of a case are rarely dealt with at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” for the purpose of determining whether to grant an extension of time to the applicant to lodge their Application.
[30] I adopt the reasoning in Kornicki in relation to the merit of Ms Bell’s application.
[31] The merit of Ms Bell’s application is a neutral consideration in these proceedings.
Section 394(3)(f)- fairness as between the person and other persons in a similar position.
[32] I am not aware of any other employee of the Institute who have lodged an unfair dismissal application out of time.
[33] I regard this issue to be a neutral consideration in these proceedings.
Conclusion
[34] I do not find any fault in the provision of service by Employee Assist. It is evident that Ms Bell did not follow Employee Assist’s standard procedures of engagement or communication.
[35] I am satisfied that Ms Bell thought that she had sent her relevant documentation to the postal address of Employee Assist. It is not relevant how Ms Bell came across this address. What is relevant is that the package was sent – albeit to the correct address but without the name of the Company. This was a mistake on Ms Bell’s part.
[36] Section 381 of the Act states;
Section 381
Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.
(my emphasis)
[37] Relevantly, an object of the Act is to ensure that all parties receive a “fair go all round.”
[38] Ms Bell’s application was not lodged late due to representative error but due to her own mistake in addressing the envelope. I do not regard this mistake to be a fatal flaw in her application. Ms Bell was not to know that a specific address in Melbourne, such as, “Level 1, 585 Little Collins Street” was not a location for the sole purpose and use of Employee Assist.
[39] I am in no doubt that had Employee Assist received the envelope on 5 October 2016 they would have lodged Ms Bell’s application prior to 13 October 2016.
[40] I am satisfied that Ms Bell undertook sufficient enquiry and activity to show that she objected to her termination and that she was seeking to challenge her termination.
[41] Having taken into account all of the evidence and submissions of the parties, I am satisfied that the mistake committed by Ms Bell was an exceptional circumstance as provided for by the Act. Ms Bell is entitled to her statutory entitlement of a “fair go”.
[42] I hereby grant an extension of time to 20 October 2016 to allow Ms Bell to lodge her application.
[43] The substantive matter will be referred to a Member of the FWC for determination.
COMMISSIONER
1 [2011] FWAFB 975
2 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR591907>
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