Ms Elise Prowse v Central Coast Post School Options Inc T/A Options Disability Support
[2016] FWC 2448
•18 APRIL 2016
| [2016] FWC 2448 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Elise Prowse
v
Central Coast Post School Options Inc T/A Options Disability Support
(U2015/15025)
COMMISSIONER SAUNDERS | NEWCASTLE, 18 APRIL 2016 |
Application for relief from unfair dismissal - whether to extend time for lodging the application.
Introduction
[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (the Commission) may allow a further period for the application to be made in exceptional circumstances.2
[2] This decision concerns whether I should exercise my discretion to allow Ms Elise Prowse (the applicant) a further period for her unfair dismissal application (the Application) to be made.
The jurisdictional objection
[3] The parties participated in conciliation before the Commission on 4 February 2016, at which time they agreed to engage in further communications after the conciliation in an attempt to settle the case. Those further communications took place, but the parties were not able to reach a resolution. Accordingly, the matter was listed for hearing to determine the out of time question.
[4] On 15 April 2016, a hearing was conducted in relation to the applicant’s application for an extension of time.
[5] The applicant relies on her handwritten letter to the Commission dated 30 November 2015, the documents attached to that letter, and the evidence given by the applicant in the hearing.
[6] The respondent relies on its letters to the Commission dated 3 and 24 December 2015, the documents attached to those letters, and the evidence given by Ms Denise Stingmore, Chief Executive Office of the respondent, at the hearing.
Legislative scheme
[7] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:
“(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.”
[8] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:
“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.”
[9] Ignorance of the timeframe for making an application for unfair dismissal is not an exceptional circumstance. 4
Consideration
Paragraph 394(3)(a) - reason for the delay
[10] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6
[11] There must be an acceptable reason for the delay in making the unfair dismissal application. 7
[12] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8
[13] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 9 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:10
“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
[14] The Fair Work Commission Rules 2013 11 expressly permit applications to be lodged by ordinary post. An applicant can reasonably expect Australia Post to deliver their mail by ordinary post in accordance with Australia Post’s standard timeframes.12 However, failure to post an application to the Commission in sufficient time for it to arrive within Australia Post’s standard timeframes is not, of itself, an exceptional circumstance.13
Relevant chronology of events
[15] I make the following findings of fact in relation to events that took place leading up to and following the applicant’s dismissal:
(a) on 2 October 2014, the applicant and her mother (in her capacity as the applicant’s support person) met with Ms Stingmore, Chief Executive Officer of the respondent. At that meeting the applicant told Ms Stingmore that she was leaving a domestically violent relationship with the father of her then unborn child (the Father) to live with her mother, she was pregnant, and she could be contacted at her mother’s address. As a means of supporting the applicant, the respondent agreed to the following:
(i) reducing the applicant’s working hours to 2 days per week;
(ii) the respondent would increase the applicant’s working hours to 3 days per week once the applicant was ready for such an increase;
(iii) the respondent offered the applicant and her immediate family use of the respondent’s Employee Assistance Program; and
(iv) the respondent offered the applicant days off work and shifts upon her return to work following the applicant’s maternity leave to accommodate her caring responsibilities;
(b) during the period of the applicant’s relationship with the Father (from about the end of 2013 until about May 2015) the Father smashed every mobile telephone the applicant owned. This gave rise to difficulties in communications between the applicant and the respondent;
(c) the applicant’s last day of work for the respondent prior to commencing maternity leave was 5 November 2014. The applicant did not inform the respondent of the dates she would be taking maternity leave, notwithstanding requests by the respondent for the applicant to provide a doctor’s certificate confirming her confinement period. In good faith, the respondent presumed the applicant was on maternity leave and paid her maternity leave as requested;
(d) in about late 2014 or early 2015, the applicant agreed to sell her 2010 Hilux Ute to a person found by the Father’s mother. The Father’s mother arranged for the weekly payments made by the purchaser of the Hilux Ute to go to the Father, rather than to the applicant. This caused the applicant financial hardship;
(e) the applicant’s first child, Elijah, was born on 16 February 2015;
(f) in about July 2015, the applicant contacted the respondent and indicated that she was ready to return to work after her period of maternity leave;
(g) on 7 and 12 August 2015, the respondent attempted (without success) to contact the applicant by telephone;
(h) by letter dated 21 August 2015 addressed to the applicant at her mother’s address and sent by express post, the respondent requested the applicant to contact Ms Dianne Weimert by Monday, 31 August 2015 to discuss her return to work. The applicant did not receive that letter until 7 or 8 September 2015;
(i) on 7 or 8 September 2015, the applicant contacted the respondent and informed the respondent that she had only just received the respondent’s letter dated 21 August 2015. The respondent adduced evidence to the effect that on 7 or 8 September 2015 the applicant informed Ms Dianne Weimert on behalf of the respondent that she would get back to the respondent by the close of business on 10 September 2015 in relation to her “availability” to return to work. The applicant gave evidence that she told Ms Weimert that she would respond by the close of business on 11 September 2015. I prefer the respondent’s evidence on this point because it is consistent with both the terms of the 11 September 2015 letter from the respondent to the applicant and the fact that the respondent sent that letter to the applicant on 11 September 2015 (that is, after the close of business on 10 September 2015);
(j) by letter dated 11 September 2015 addressed to the applicant at her mother’s address and sent by express post, the respondent informed the applicant that it had not received any communication from the applicant by the close of business on 10 September 2015. The letter then stated:
“We have considered the impact on our participants and our business requirements due to your inability to commit to a return to employment and as a result we will terminate your employment as a result of abandonment of employment.
We wish you all the best for the future.”
(k) the applicant says that her sister in law “signed for” the letter dated 11 September 2015 and the applicant did not receive it immediately. For the reasons set out in paragraph [18] below, I find that the applicant received the letter dated 11 September 2015 on 24 September 2015:
(l) at some point in the two week period from about 15 to 29 September 2015, the applicant’s baby had to go to hospital for treatment for pneumonia. He was in hospital for about 4-5 days;
(m) in about the end of August or September 2015, the applicant found out she was pregnant again. On about 23 November 2015 the applicant found out that there were potentially significant complications associated with her pregnancy. On 27 November 2015, the applicant was admitted to Gosford hospital in order to have a procedure undertaken in connection with her unborn child. The applicant was discharged from hospital on 28 November 2015. A few days later the applicant was relieved to find out that her unborn child appeared to be alright. I accept the applicant’s evidence that the uncertainty associated with these potential complications was very distressing for her;
(n) on 24 September 2015 and again on 28 September 2015, 14 the applicant contacted the respondent and asked to speak to Ms Stingmore, who was away from the office on 24 September 2015 and did not return until 28 September 2015. Ms Stingmore returned the applicant’s call on 29 September 2015. During the discussion the applicant stated that she had not abandoned her employment and challenged the fairness of her dismissal. Ms Stingmore told the applicant that she would go back to Ms Dianne Weimert and “relook at the attempts that had been made” to see if the applicant could be re-employed. The applicant told Ms Stingmore that she had had “a very bad two years” and that her baby had been in hospital the last two weeks and that was why she had not got back to the respondent. At the end of the conversation Ms Stingmore asked the applicant to provide her with information to support what she had told Ms Stingmore during their conversation, such as a doctor’s certificate, so that Ms Stingmore could add “this to my review based on our conversation” and decide whether an offer of re-employment should be made to the applicant. At this point in the conversation the applicant hung up the phone;
(o) the applicant did not provide the respondent with any information or documentation to support what she had told Ms Stingmore on 29 September 2015;
(p) on 19 October 2015, Ms Stingmore received an email from another employee of the respondent informing her that the applicant had been trying to contact Ms Stingmore when she was on annual leave (7 to 15 October 2015). The applicant stated in her communication to the employee of the respondent that if she didn’t “hear from her [Ms Stingmore] by 23rd October matters will be taken further by a third party”;
(q) Ms Stingmore attempted (without success) to contact the applicant by telephone on 21, 22 and 26 October 2015;
(r) the applicant relies on a letter from Legal Aid dated 23 October 2015 which confirms that she attended an appointment with Legal Aid on 23 October 2015, at which time she was informed that she was not “eligible for legal aid because your matter falls outside the Legal Aid NSW policies and guidelines”. The applicant does not recall being told anything by Legal Aid about the period of time she had to make an unfair dismissal application. At all times prior to making her unfair dismissal application the applicant was unaware of the fact that she only had 21 days to make an unfair dismissal application;
(s) the applicant’s unfair dismissal application is dated 23 October 2015. She cannot recall whether she posted it to the Commission by ordinary post or express post, nor can the applicant recall when she posted it to the Commission. The Application arrived in the Commission on 12 November 2015. I therefore find that the applicant posted her Application to the Commission in about the week prior to 12 November 2015. The applicant was unable to provide any explanation for why it took from 23 October 2015 until early November 2015 for her to post her Application to the Commission;
(t) the respondent sent the applicant a copy of a memo to all staff dated 30 October 2015 in relation to the availability of staff to work during and after the Christmas closure period in December 2015 and January 2016. This memo was also sent by the respondent to the applicant following the telephone discussion between Ms Stingmore and the applicant on 29 September 2015 with a view to the applicant potentially being re-employed by the respondent, “subject to Ms Prowse providing documentation to confirm why she was not contactable” during the earlier period of time; and
(u) on 25 November 2015, the applicant attended a court hearing in relation to a criminal matter involving the Father, who is also the father of the applicant’s unborn child. The Father was in gaol for 29 days immediately prior to 25 November 2015. The applicant supported the Father financially during his period of incarceration. When he was released, the applicant perceived that the Father “walked the other way”, by returning to his separated wife and his mother. This caused the applicant further stress. The Father’s family has also caused the applicant stress by questioning whether the Father is the father of the applicant’s unborn child.
[16] In her letter to the Commission dated 30 November 2015, the applicant states that she has “been under all sorts of stress” over the “last few months”, with the result that she needs to “ask for an extension of time for my application to proceed”. The relevant events and reasons on which the applicant relies are set out in the chronology in the previous paragraph.
Analysis of the chronology of events and reasons for delay
[17] The respondent used the expression “we will terminate your employment as a result of abandonment of employment” [emphasis added] in its letter to the applicant dated 11 September 2015. The phrase “will terminate” could, on one view, be construed to mean that the respondent would, in the future, terminate the applicant’s employment. However, the phrase must be looked at in context. The balance of the letter gives the impression that the respondent had made its decision by 11 September 2015 to terminate the applicant’s employment. In particular, the letter sets out the relevant sequence of events leading up to 11 September 2015 and concludes by stating: “We wish you all the best for the future”. In my view, notwithstanding the use of the phrase “will terminate”, a reasonable person in the position of the applicant would, having regard to the relevant context and sequence of events, have read the 11 September 2015 letter and understood from it that their employment had been terminated by the respondent. That is, in fact, how the applicant understood the letter. It follows that the applicant’s dismissal was communicated to her, and took effect, on the date on which she received and read the 11 September 2015 letter.
[18] The applicant attempted to contact Ms Stingmore on 24 September 2015 to discuss the letter dated 11 September 2015. Given the subject matter and importance of the letter dated 11 September 2015, I accept the applicant’s evidence that she attempted to contact Ms Stingmore in relation to the letter as soon as she received and read it. Accordingly, I find, on the balance of probabilities, that the applicant received and read the respondent’s letter dated 11 September 2015 on 24 September 2015. I am therefore satisfied that the applicant’s dismissal took effect on 24 September 2015.
[19] The 21 day time period for the applicant to make her unfair dismissal application expired on 15 October 2015. 15 Given that the applicant completed her Application on 23 October 2015 and it was lodged with the Commission on 12 November 2015, the Application was made 28 days late.16
[20] In accordance with the principles summarised in paragraph [13] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 16 October 2015 until 12 November 2015. However, the circumstances from the time of the dismissal (24 September 2015) must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.
[21] The relevant time periods referred to in the previous paragraph are particularly important in this case, for the applicant has clearly been through a difficult time over the past two years or so, but many of the events on which she relies, as summarised in the chronology set out in paragraph [15] above, to support her application for an extension of time took place prior to or after the period from 24 September 2015 until 12 November 2015, and were not part of the reasons for her delay in making her Application.
[22] While I am sympathetic to the applicant’s circumstances, I am not persuaded that the applicant’s difficulties were out of the ordinary course, unusual, special or uncommon. I am also not satisfied that the applicant has provided a reasonable explanation for the whole of the delay.
[23] This factor weighs against granting the applicant an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
[24] In accordance with my earlier finding, the applicant first became aware of the dismissal on 24 September 2015. That was the day on which the dismissal took effect. The applicant had the full 21 days to make his application. This weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
[25] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 17
[26] It is apparent from the chronology set out in paragraph [15] above that the applicant clearly disputed that she had abandoned her employment and put the respondent on notice that she would challenge the fairness of her dismissal. This weighs in favour of a finding that there are exceptional circumstances.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
[27] Prejudice to the employer will weigh against granting an extension of time. 18 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.19
[28] A long delay gives rise “to a general presumption of prejudice”. 20
[29] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 21
[30] Noting that the delay was 28 days, I am satisfied that there would be no greater prejudice to the respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the respondent is a neutral consideration.
Paragraph 394(3)(e) - merits of the application
[31] In Kornicki v Telstra-Network Technology Group 22the 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 lodgment. 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.” 23
[32] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 24 for the purpose of determining whether to grant an extension of time to the applicant to lodge [his/her] Application.
[33] I adopt this reasoning in relation to my consideration of the merits of the Application.
[34] The respondent submits that it had a valid reason for the termination of the applicant’s employment and that she was afforded procedural fairness. In particular, the respondent says that the applicant abandoned her employment and failed to provide any information to the respondent about when she would be available for work, notwithstanding that she was given multiple opportunities to provide such information. The applicant denies the allegations and claims that it was unfair for her to be dismissed when she had let the respondent know that she wished to return to work after her period of maternity leave.
[35] I am not able to make an assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
[36] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 25 considered this criterion and said (at [29]) “cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission”.
[37] There was no submission that there were other persons in a similar position to the applicant. I find this criterion to be neutral.
[38] I am satisfied that the issue of fairness as between the applicant and other persons in a similar position is not a relevant consideration in this matter.
[39] Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
[40] Having taken into account the matters referred to in paragraphs [10] to [39] above, I am, on balance, not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. The applicant’s circumstances were not out of the ordinary course, unusual, special or uncommon.
[41] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive Application for an unfair dismissal remedy is dismissed.
COMMISSIONER
Appearances:
Ms E Prowse on her own behalf;
Ms D Stingmore on behalf of the respondent.
Hearing details:
2016.
Newcastle:
April, 15.
1 Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
2 Section 394(3) of the Act.
3 [2011] 203 IR 1
4 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]
5 Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 at [24].
6 Plaksa v Rail Corporation NSW[2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.
7 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
8 Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9
9 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31]
10 [2016] FWCFB 349 at [31]
11 Rule 13(2)(b)
12 Ceres Agricultural Company Pty Ltd v Regan[2016] FWCFB 371 at [12]
13 Ceres Agricultural Company Pty Ltd v Regan[2016] FWCFB 371 at [15]
14 Email from Jeanette Howarth to Ms Stingmore dated 28 September 2015
15 That is, 21 days from 24 September 2015 (not including 24 September 2015) is 15 October 2015.
16 That is, 12 November 2015 is 28 days after 15 October 2015.
17 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
18 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
19 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
20 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556
21 Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]
22 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
23 Ibid.
24 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
25 [2015] FWC 8885
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