Ms Chaitalee Shah v Little Devils Childcare Pty Ltd T/A Dorothy Avenue Childcare Centre

[2017] FWC 1887

[2017] FWC 1887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Chaitalee Shah
v
Little Devils Childcare Pty Ltd T/A Dorothy Avenue Childcare Centre
(U2017/783)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 20 APRIL 2017

Application for an unfair dismissal remedy; application made outside of the time prescribed; whether there are exceptional circumstances; whether discretion to allow a further period within which application may be made should be exercised; extension of time refused; application dismissed.

Introduction

[1] Ms Chaitalee Shah (Applicant) commenced employment with Little Devils Childcare Pty Ltd (Respondent) as a casual employee on or about 3 December 2012. The Applicant became a permanent part-time employee in early April 2013. She was employed in the position of a Childcare Educator.

[2] The Applicant was dismissed from her employment with the Respondent by notice given by email sent on 21 December 2016, effective immediately. 1 The reason given by the Respondent for its decision to dismiss the Applicant from her employment was said to relate to the taking of unauthorised leave contrary to the Respondent’s direct instruction and reasonable direction.2 On 25 January 2017, the Applicant applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy.

[3] Applications for an unfair dismissal remedy must be made within 21 days after a dismissal took effect or within such further period as the Fair Work Commission (Commission) may allow. Based on the dismissal taking effect on 21 December 2016, an application for a remedy should have been lodged by no later than 12 January 2017. The application was therefore lodged outside of the time prescribed and was, in effect, lodged 13 days after the last day on which such an application could have been made. A further period within which to make an application may be allowed if I am satisfied that there are exceptional circumstances.

[4] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves need not be unique nor unprecedented, nor even very rare.

[5] The matters that I need to take into account in considering whether I am satisfied that there are exceptional circumstances are:

• the reason for the delay,



• whether the Applicant first became aware of the dismissal after the date it took effect;



• any action taken by the Applicant to dispute the dismissal;



• prejudice to the Respondent including prejudice caused by the delay;



• the merits of the application; and



• fairness as between the Applicant and other persons in a similar position.

[6] It is clear from the structure of s.394(3) that each of the matters need to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

Background

[7] On or around 20 September 2016, the Applicant informed Ms Kelly McGrath, Director of the Respondent, that she may need to travel to India as her mother was unwell and potentially needed to undergo a second surgery. 3 On 23 September 2016, the Applicant sent a text message to Ms McGrath indicating that she no longer needed to travel to India but that she may need to at a later date.4 In early October, the Applicant told Ms McGrath that she needed to travel to India to care for her mother who was scheduled to have surgery sometime between late November and early December.5 It is not in dispute that the Applicant was asked by Ms McGrath to provide medical documentation in support of her carer’s leave request.6

[8] The Applicant says that she booked her flight to India on the weekend of 8 and 9 October 2016 and received confirmation on 10 October 2016. 7 The additional documentation filed after the hearing by the Applicant, pursuant to a request for production by the Respondent made during the Applicant’s evidence, shows that the ticket for a flight to India was booked, and for which payment was made on 26 September 2016.8 The document provided directly contradicts the Applicant’s sworn evidence.

[9] The Applicant’s evidence was that she handed a medical certificate to Ms McGrath on 7 October 2016. 9 The Applicant says that her brother had sent to her a copy of the medical certificate via email.10 The Applicant was given an opportunity to produce the email from her brother however the Applicant failed to do so. The Applicant’s explanation for this is that the email has since been deleted.11 The Applicant did not produce any further document that may have supported her evidence that she provided the medical certificate bearing a date of 11/10/2016 to Ms McGrath on 7 October 2016.

[10] Ms McGrath maintains that the Applicant handed her the medical certificate and sent a follow up email on 11 November 2016. 12 This evidence is not in dispute but the Applicant maintains that these events were in addition to the events that took place on 7 October 2016.13 The email indicates that the Applicant’s last day of work will be 17 November 2016 and that she would recommence on 25 January 2017.14 The email also encloses the same medical certificate15 that the Applicant alleges she gave Ms McGrath on 7 October 2016. The Applicant’s email also acknowledges that her leave has to date been refused by Ms McGrath.16 On the face of the medical certificate, which is in the form of a scanned image, the image was created on 11/10/2016. That document could not therefore have been given to Ms McGrath on a date earlier than the date on which it was created. No other medical certificate was produced. In these circumstances, I do not accept the Applicant’s evidence.

[11] In light of the above and other inconsistencies in the Applicant’s evidence, to which reference will later be made, I have decided to treat the Applicant’s evidence with caution and where the Applicant’s evidence conflicts with that of Ms McGrath’s, I have preferred Ms McGrath’s evidence.

[12] Ms McGrath’s version of events is inherently more likely. This is because:

● the date (11/10/2016) on which the medical certificate image was created or saved as a jpeg file is inconsistent with the Applicant’s version of events as she says that she provided the medical certificate to Ms McGrath on 7 October 2016;

● the Applicant failed to reproduce the email from her brother;

● the Applicant does not explain why she would resubmit the medical certificate on 11 November 2016, without noting in the letter that the medical certificate attached is the same as that earlier provided; and

● there is a strange coincidence between the date said by the Applicant as the date on which the medical certificate was provided to Ms McGrath (7/10/16) and the date on which the Applicant during her evidence said that she had booked her flight (8 or 9 October 2016). That chronology fits the case narrative advanced by the Applicant. Of course, that case narrative does not hold up in the face of documents showing a much earlier booking.

[13] In any event, even if I were to accept the Applicant’s version of events as the likely version, it is evident that as the flight was booked and payment was made on 26 September 2016, the Applicant was intent on proceeding to India irrespective of the Respondent’s approval of any leave.

[14] Ms McGrath sent an email to the Applicant on 14 November 2016 advising the Applicant that her leave had in effect been refused and that the Respondent required up-to-date medical documentation before the unpaid carer’s leave could be considered. The letter indicates that in the event that medical documentation is not provided, the Applicant was to attend work during the requested leave period. 17

[15] On 17 November 2016, the Applicant submitted a leave application form for the period of 21 November 2016 to 23 January 2017 inclusive. 18 The Applicant had applied for annual leave between the period of 21 November 2016 and 8 December 2016, carer’s leave between the period of 12 December 2016 and 23 January 2017 and leave without pay for the same period between 12 December 2016 and 23 January 2017. The leave application form seems to have been incorrectly completed by the Applicant as the dates for different forms of leave proposed overlap.19 Ms McGrath sent an email to the Applicant on 18 November 2016 reiterating that the Applicant’s leave was not approved and that further documentation was required if she wished to go on a significant period of unpaid carer’s leave.20

[16] The Applicant did not provide any further documentation as requested by the Respondent, nor did she return to work. A letter was sent to the Applicant by the Respondent’s Representative by email on 8 December 2016 indicating that her employment may possibly come to an end should she fail to provide medical evidence by 21 December 2016 as requested by the Respondent. 21 The Applicant provided a response to the email on 15 December 2016, however she failed to provide any documentation as requested by the Respondent.22 On 21 December 2016, a letter was sent by the Respondent’s Representative to the Applicant by email advising her that her employment with the Respondent had come to an end effective immediately.23 The Applicant’s evidence is that she looked at the email “within a week”24 of when it had been sent. The Applicant says that by no later than 28 December 2016, she had understood that she had been dismissed by the Respondent.25 Even if I were to accept the Applicant’s evidence in respect of when she first became aware of her dismissal, the application for an unfair dismissal remedy was still lodged outside of the time prescribed to make an application for an unfair dismissal remedy.

[17] I will now turn to the particular matters to which regard must be had.

Reason for the delay

[18] Firstly, as to the reason for the delay. When considering the reason for the delay, the explanation given by the Applicant needs to be a credible or acceptable explanation. The reason or reasons need to provide an acceptable explanation for the whole of the period of the delay. Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 26

[19] The Applicant says that the reason for lodging her application outside of the time prescribed is two-fold. The Applicant asserts that the delay in filing the application was because she was in India, providing care for her mother, and had very limited access to the internet. 27 The Applicant’s evidence is that the internet service in India (presumably in the area or region in which she was located) is slow28 and says that she did not have access to a computer at her mother’s home29 and only had a few “cyber cafes” located around her. The Applicant also says that she did not have access to a vehicle and that public transport was “a bit far”.30

[20] The Respondent maintains that the Applicant had access to the internet during her time in India, and as such had the capacity to file her unfair dismissal application at any time between the date her employment was terminated and the date she left India, but that the Applicant elected not to do so. 31 The Respondent relies on the Applicant’s evidence given during the proceedings and concessions made by the Applicant to make good its point.

[21] The Respondent submits that on the Applicant’s evidence she had access to internet cafes and friends and family who had access to computers and smartphones. 32 The Respondent maintains that the Applicant could have used these methods to lodge her unfair dismissal application,33 and in any event says that the Applicant’s evidence is that she had limited access to the internet and not that the Applicant had no access.34

[22] To further its case, the Respondent relies on the Applicant’s use of Facebook whilst overseas in India. The Respondent tendered photographs of the Applicant out for dinner in India with some of her family members, including her mother. 35 The Applicant had been tagged in the photos by her sister-in-law. The Respondent also points to the Applicant’s timeline which shows that the Applicant was active on Facebook on several occasions while she was in India. On 4 January 2017, the Applicant was “tagged” in a post by Nishita Hemang Shah which the Applicant “liked”36. The Applicant also commented on this post on 5 January 2017. Also on 5 and 14 January 2017, the Applicant “liked” an album of photos posted by her brother on Facebook and the Applicant posted a Christmas message on 25 December 2016.37

[23] The Applicant gave oral evidence that she did not make any Facebook posts while she was in India. 38 The Facebook timeline provided by the Applicant after the hearing, pursuant to a request for production by the Respondent made during the Applicant’s evidence, demonstrates the contrary. This does little for the Applicant’s credibility as a witness or for my assessment of her honesty. In addition, when questioned about a dinner on 28 December 2016 with her brother and sister-in-law, to which earlier reference has been made, the Applicant gave oral evidence that her mother was at home being cared for by her aunt.39 When presented with another picture from her sister-in-law’s Facebook timeline of that dinner40, the Applicant conceded that the picture was of her mother, who was not at home being cared for by her aunt as she was “feeling okay at that time so we took her”.41 This again does little for the Applicant’s credibility.

[24] Further, it was put by the Respondent that it was evident from the photo 42 that the Applicant’s daughter was “streaming a video”. The Applicant accepted that her daughter at the time was streaming a video using her brother’s SIM card.43 The subsequent submission on behalf of the Applicant that the daughter might only have been viewing a video previously downloaded, whilst interesting as a theory, is directly contrary to the Applicant’s acceptance of her daughter’s streaming of a video using another person’s SIM card.

[25] The Respondent submits that the Applicant was not required to provide care and support to her mother during her time in India because:

● the Applicant’s mother did not undergo the medical procedure 44 which was the basis on which it was asserted she required care and support; and

● the Applicant’s mother had other family members in reasonably close proximity to her home who could have provided care and support if it was required.

[26] The Applicant’s evidence is that her mother could not undergo surgery “because her haemoglobin is very low and she got paralytic attack as well at that time.” 45The Applicant says that she cannot remember when she was advised that her mother’s surgery was not going ahead but says it might have been in the week she arrived.46 It is difficult to comprehend why the Applicant did not notify the Respondent that her mother did not require the second surgery. The Applicant’s defence is “because as I said I like didn’t have access to the internet much”47 and that the doctor said “let’s see if she gets better, then we’ll see next what happen, otherwise if we do the surgery or not.”48 The Applicant had ample opportunity to inform the Respondent about the above and in any event could have done so in her email dated 15 December 2016. To the contrary, implicit in the Applicant’s 15 December response is that the Applicant’s mother had had surgery or would soon have surgery. It does not appear that the Applicant has seriously considered the ramifications of taking unauthorised leave in circumstances where she has been made aware that the very reason asserted as the basis for her leave application is no longer necessary.

[27] None of the reasons above provide an acceptable or credible explanation for the delay. The Applicant at the very least had access to family members with smart phones and computers. The Applicant also had access to a home phone 49 at her mother’s house in India. The Applicant could have called the Commission and lodged her application over the phone or alternatively she could have asked her husband, who had remained at home in Australia to lodge an application on her behalf. The Applicant was active on Facebook on a number of occasions between the date her employment was terminated and the date she left India. The Applicant could have lodged her application on each or any of these occasions. Further, the Applicant could have lodged her application when she first arrived in Australia on 22 January 2016 but instead lodged it 3 days later.

[28] The Applicant has provided no acceptable explanation for the failure to lodge her application immediately upon her return to Australia, nor is there any reason given explaining why the Applicant’s husband could not have assisted the Applicant to lodge her application immediately or as soon as practicable after the Applicant returned from India. Finally, the Applicant made no effort to try to lodge her application while she was in India. 50 The Applicant’s evidence shows no more than she would have encountered some inconvenience in lodging her application while overseas rather than being unable to lodge her application. No explanation is provided for the Applicant’s husband’s inability to lodge the application on behalf of the Applicant at any time from at least early in the New Year. He was after all in Australia for the entire period. I am not satisfied that any of reasons given by the Applicant provide an acceptable explanation for the delay and that is a matter that weighs against the Applicant.

Whether Applicant first became aware of the dismissal after the date it took effect

[29] Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect. The evidence is that the Applicant was firstly advised on 8 December 2016 that her employment may come to an end unless she provided further medical documentation to support her unpaid carer’s leave or any other evidence that might cause the Respondent to reconsider its decision. The Applicant was advised by email on 21 December 2016 that given her failure to provide any further documentation, the company had determined to terminate the Applicant. Her dismissal was effective immediately. 51 It is not in dispute that the Applicant was provided with a termination letter from the Respondent and that the Applicant was paid her outstanding entitlements. As indicated earlier above, the Applicant’s evidence is that she looked at the email “within a week”52 of it being sent. The Applicant says that by no later than 28 December 2016, she had understood that she had been dismissed by the Respondent.53

[30] On 8 December 2016 the Applicant was put on notice that her employment may come to an end. That the Applicant may or may not have read the email from the Respondent until 28 December 2016 is mitigated by the fact that the Applicant was put on notice prior to her dismissal. The Applicant’s 15 December 2016 response was not responsive to the Respondent’s concerns. She remained on unauthorised leave. That on 21 December 2016, the Respondent acted to terminate the employment should also not have come as a surprise. Accordingly, I consider this factor to be neutral.

Action taken by the Applicant to dispute her dismissal

[31] Turning next to the question of the action taken by the Applicant to dispute her dismissal. The Applicant’s evidence is that she contacted the Fair Work Ombudsman (Ombudsman) on 18 November 2016 before she left to India 54 and was told to lodge her application on the day she arrived back to Australia.55 This conduct cannot be said to constitute action taken by the Applicant to dispute her dismissal because at 18 November 2016, the Applicant had not yet been dismissed.

[32] The only action the Applicant has taken is to contact the Respondent’s Representative on 15 December 2016 in response to the letter dated 8 December 2016. The Applicant was given between 8 December and 21 December 2016 to provide any further evidence, including medical evidence to support her period of leave. However, the Applicant failed to provide any documentation to support her leave. After the date of dismissal, the Applicant took no action to dispute the dismissal whatsoever.

[33] None of the matters referred to above show any step taken by the Applicant to dispute her dismissal. In the circumstances, this is a matter that weighs against the Applicant.

Prejudice

[34] Turning to the question of prejudice, the mere absence of prejudice is not a factor which weighs in favour of an Applicant who seeks a further period within which to lodge an application for an unfair dismissal remedy

[35] The Respondent maintains that should the Commission allow a further period for the Applicant to file her application, the Respondent would experience some degree of prejudice. 56

[36] It would be a difficult argument to make for the Respondent to suggest that a 13 day delay would result in prejudice beyond the usual prejudice associated with defending applications of this kind and I take the absence of prejudice into account. In the circumstances, I am prepared to weigh this consideration in favour of the Applicant.

Merits of the application

[37] As to the merits of the application, a hearing to consider whether time should be extended is essentially an interlocutory hearing, which does not generally permit a substantive testing of the merits of the particular application and so, in most cases the best that can be done is to take the Applicant's case at its highest and assess the merits from that perspective. That is, to look at the Applicant's case in the most favourable light and make an assessment about the merits.

[38] On the Applicant’s case, the application has very limited prospects of success for a number of reasons. As indicated above, the Applicant has acknowledged on a number of occasions that the Respondent did not approve her leave. 57 On the Applicant’s evidence, she booked her flight to India prior to providing the Respondent with the medical certificate and prior to obtaining approval and in any event, the Applicant does not identify any procedural shortcomings in the way the Respondent handled her dismissal.

[39] Under the National Employment Standard, an employee (other than a casual employee) accumulates four weeks of paid annual leave for each year of service with the employer. An employee’s entitlement to annual leave accumulates continuously based on the number of ordinary hours they work. Annual leave continues to accumulate when an employee takes a period of paid annual leave or paid personal/carer’s leave. Annual leave will not accumulate on unpaid leave unless it is community service leave or it is provided for in an award or registered agreement. Annual leave can be taken as soon as it is accumulated; it does not have to be taken each year, however it is not an automatic right and it is up to each employer and employee to agree on when and for what period annual leave can be taken depending on a number of factors.

[40] All employees, including casual employees are entitled to 2 days unpaid carer’s leave. Employees are entitled to 2 days unpaid carer’s leave on each occasion an immediate family member or household member of the employee needs care and support because of illness, injury or an unexpected illness. Full-time and part-time employees only receive unpaid carer’s leave if they do not have any paid sick/carer’s leave left. It is not in contest that none of the period of leave claimed had been approved. In particular, the period of annual leave had not been agreed and the period of unpaid carer’s leave claimed was well beyond the NES entitlement, and had not been approved. This notwithstanding, the Applicant proceeded on unapproved leave. Furthermore, the continued assertion of the justification for the leave (mother’s surgery) implicit in the Applicant’s 15 December 2016 response to her employer, would likely found a further and independent reason, based on dishonesty, for the subsequent dismissal.

[41] It seems to me therefore, the application on the merits is very weak and more likely than not will fail. Accordingly, I consider this factor weighs against the Applicant.

Fairness as between the Applicant and other persons in a similar position

[42] As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission.

[43] The Respondent referred in its submissions to my decision in C Ozsoy v Monstamac Industries Pty Ltd 58. The Respondent says that the circumstances of that case are similar to the instant case as Mr Ozsoy, like the Applicant contacted the Ombudsman. However, the cases differ in a material respect. Unlike the Applicant in the instant case, Mr Ozsoy contacted the Ombudsman after he was terminated. On the Applicant’s evidence, she contacted the Ombudsman on 18 November 201659, prior to her dismissal. In any event, given my assessment of the Applicant’s credibility as a witness, I have grave reservations in accepting her evidence about the telephone advice said to have been given.

[44] No other submissions were made on this issue, neither party brought to my attention any other relevant decision or matter before the Commission. Consequently, this matter is a neutral consideration in the present circumstances.

Conclusion

[45] The statutory time limit that is applicable to the exercise of a person's right, to bring an unfair dismissal remedy application is an expression of the parliament's intention that rights should be exercised promptly. That is because it is important that there is some certainty, particularly in relation to an employer who has taken a particular step, that they know that after the expiration of 21 days, in the case of a termination, that that will be the end of the matter. Time limits seek to balance the right to bring an action by an aggrieved former employee and the desirability of prompt action and prompt resolution of disputes.

[46] It is for that reason, the parliament has chosen to establish a time period and that time period is 21 days. However, the parliament also recognises that there will be some cases where a late application should be accepted and it has set out the test of exceptional circumstances and the matters that need to be taken into account.

[47] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

[48] As I have indicated, the Applicant has not provided an acceptable explanation for the whole period of delay. Though she may not have been notified of the dismissal on the day it took effect, for the reasons given, that factor weighs neutrally and she took no step to dispute the dismissal. The absence of prejudice weighs in favour of the Applicant but the weak merits case weighs significantly against the Applicant, while the fairness consideration is neutral.

[49] As I have indicated, when I consider all the evidence in this case and the circumstances that I need to take into account individually and collectively, I am not satisfied that exceptional circumstances exist.

[50] As a consequence, I do not need to consider whether I should exercise my discretion. The application to allow a further period within which the Applicant’s application should be lodged is refused. 

[51] The application is dismissed. An order giving effect to this decision is separately issued in PR591964.

DEPUTY PRESIDENT

Appearances:

Ms C Shah, on her own behalf.

Ms C Dowling, Solicitor on behalf of the Respondent.

Hearing details:

2017.

Sydney.

31 March.

Final written submissions:

Applicant’s Submissions dated 4 April 2017.

Respondent’s Submissions dated 6 April 2017.

 1   Exhibit 3 at A9.

 2   Ibid.

 3 Exhibit 3 at [3].

 4 Exhibit 1 at [3], Exhibit 3 at [3].

 5 Exhibit 3 at [4], Exhibit 1 at [4].

 6   Ibid, Transcript PN111.

 7   PN144 – PN146.

 8   Applicant’s Submissions filed after the hearing dated 4 April 2017.

 9   PN182.

 10   PN191.

 11   Applicant’s Submissions filed after the hearing dated 4 April 2017.

 12   Exhibit 3 at A2, PN476.

 13   PN165.

 14   Exhibit 3 at A2.

 15   Ibid.

 16   Ibid.

 17   Ibid.

 18 Exhibit 3 at [10].

 19   Ibid.

 20   Exhibit 3 at A6.

 21   Exhibit 3 at A7.

 22   Exhibit 3 at A8.

 23   Exhibit 3 at A9.

 24   PN77.

 25   PN78 – PN84.

 26   See Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

 27   PN81, PN99.

 28   Ibid.

 29   PN558.

 30   PN262.

 31   Respondent’s Further Submissions dated 6 April 2017 at 5.3(a).

 32   PN263.

 33   PN590.

 34   Ibid.

 35   Exhibit 2.

 36   Applicant’s Facebook Timeline, page 9.

 37   Ibid at page 11.

 38   PN268.

 39   PN310 – PN315.

 40   Exhibit 2.

 41   PN319.

 42   Exhibit 2.

 43   PN306 – PN307.

 44   PN209.

 45   PN209.

 46   PN212.

 47   PN218.

 48   PN219.

 49   PN256.

 50   PN100 – PN102.

 51   Exhibit 3 at A9.

 52   PN77.

 53   PN78 – PN84.

 54   PN367 – PN372.

 55   Applicant’s Submissions (Unfair dismissal – preparing for conference) dated 20 March 2017, question 1d. at page 4.

 56   Respondent’s Outline of Submissions dated 27 March 2017 at 5.1.

 57   See for example PN350, PN476, Email from Applicant to the Respondent’s Representative dated 15 December 2016.

 58   [2014] FWC 479.

 59   PN364 – PN374.

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