Ms Harleen Malhotra v Corymbia Day Surgery

[2021] FWC 6199

[2021] FWC 6199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Harleen Malhotra
v
Corymbia Day Surgery
(C2021/4876)

DEPUTY PRESIDENT CROSS SYDNEY, 25 OCTOBER 2021

General protections dismissal dispute - application filed out of time – circumstances exceptional – application allowed.

[1] Ms Harleen Malhotra (the Applicant) made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that she has been dismissed from her employment with Corymbia Newco Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act (the Application). The Respondent has objected to the Application on the ground that the Application was made out of time.

[2] The Applicant originally commenced the Application against an entity described as Corymbia Day Surgery, however in the hearing of the matter that occurred on 18 October 2021 (the Hearing), the parties consented to the correction of the employing identity to being that of the Respondent.

When must an application for the Commission to deal with a dismissal dispute be made?

[3] Section 366(1) of the Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

Was the Application made within 21 days after the dismissal took effect?

[4] As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.” 1

[5] It is agreed between the parties that the dismissal took effect on 19 July 2021. The final day of the 21 day period was therefore 9 August 2021, and ended at midnight on that day. The Application was made on 18 August 2021. The Application was therefore made 9 days late.

[6] As the Application had not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the Application to be made.

Was the Application made within such further period as the Commission allows?

[7] Under section 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the Applicant to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the Applicant and other persons in a similar position.

[8] Each of the above matters must be considered in assessing whether there are exceptional circumstances. 2 I set out my consideration of each matter below.

Reason for the delay

[9] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 9 August 2021. The delay is the period commencing immediately after that time until 18 August 2021, although circumstances arising prior to that delay may be relevant to the reason for the delay. 3

[10] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances. 4

[11] An Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay. 5

The Evidence

[12] The relevant facts of this matter are in short compass. On 3 August 2021, the Applicant forwarded a form F8 to the Commission (the 3 August Application). It was apparently sent by email from the Applicant’s phone, within the following message:

From: HARLEEN KAUR
Date: 3 August 2021 at 11:16:51 am AEST
To: [email protected]
Subject: form_f8.pdf

Regards
Harleen Malhotra
0401956653
Sent from my iPhone

[13] Twenty two seconds after sending the above email, the Applicant received a response from the Commission in the following terms (the 3 August Email):

From: mail delivery system [email protected]
Date: 3 August 2021 at 11:17:13 am AEST
To: [applicant’s email address]
Subject: Message Notification

Your message entitled: [WARNING: A/V UNSCANNABLE]form_f8.pdf has been accepted for delivery to the recipient’s mailbox. You are advised that this is an automatically generated message.

Please do not reply to this email. Any further correspondence should be directed to the relevant email address.

[14] On 18 August 2021, after receiving no further communication from the Commission, the Applicant made enquiries of the Commission regarding the progress of the 3 August Application. Upon being advised that it had not been received, she resent the Application

[15] On 30 August 2021, the representatives of the Respondent contacted the General Protections Team (the GPT) of the Commission. While the relevant text of the Respondent’s message was not tendered in evidence, the Respondent did tender the response received from the GPT (the GPT Response), which was as follows:

OFFICIAL-SENSITIVE

Dear Mr ,

I refer to the below email dated 30 August.

Registry notes that an email was recevied (sic) from the Applicant on 3 August which was rejected due to ‘unscannable message detected’.

As we are not able to confirm the contents of the rejected message, the Commission has taken the lodgement date of 18 August as the date the application was received.

The Applicant has sent the attached emails purporting to the lodgement email that was rejected.

Kind regards

Case Management Team

[16] The submission of the Applicant regarding the reason for the delay was as follows:

Kindly find the forwarded email I had send to FWC on the 3/8, which falls under the timeframe to file for general protection. Herein is the snapshot of the received application. After the receipt, I was not contacted by FWC to advice that they have not received in format not opening. I had already talked to someone before I submitted my application and thus had submitted the application in valid PDF format which when I resent only after enquiring on my own on the 18/8, opened alright. The FWC does not accept the fact that there was some technical issue on their end, and I am being reprimanded for the same.

[17] In response, the Respondent submitted the following:

The Applicant’s explanation for her delay in filing a successful application is two-fold; firstly, that she sent an email with an application on 3 August 2021 which the Commission was unable to open and secondly, after enquiring with the Commission she then realised her application had not been received correctly, and successfully filed the Application on 18 August 2021.

In terms of the correspondence filed on 3 August 2021, there is evidence that an email to the Commission was attempted on that date, however, it was not able to be accessed by the Commission and should not be taken as a filed document as there is no way of ascertaining the contents of the document.

The only email received by the Applicant by (sic.) the Commission within the time-limit outlined that: “[WARNING: A/V UNSCANNABLE]form_f8.pdf has been accepted for delivery to the recipient's mailbox. You are advised that this is an automatically generated message.”

Therefore, there is also no record of the Commission’s Registry accepting the correspondence as a lodgment (sic.).

[18] The Respondent relied on the decision of Commissioner Wilson in Samantha Thompson v Sitro Group Australia (Thompson), 6 as an analogous circumstance where applicant sent an application that was recorded as unscannable and then made another application out of time.

[19] The Respondent also noted that a main page on the Commission’s website titled ‘Lodge an Application’ provided the following information:

“note that if you send us your application by email it is not considered lodged until we send you an email acknowledging lodgment (see Rule 14 of the Fair Work Commission Rules 2013);

and

“if you haven't received an acknowledgement email within 2 business days you should contact the Commission office where you sent your application.”

Conclusion on Reason for Delay

[20] I consider it entirely unremarkable that the Applicant believed that the application made by the 3 August Application, six days within the 21 day limitation period, had been received and considered as lodged by the Commission. That is because the 3 August Email advised the Applicant that:

“Your message entitled [WARNING: A/V UNSCANNABLE]form_f8.pdf has been accepted for delivery to the recipient's mailbox.”

(Emphasis added)

[21] I reject the Respondent’s submission that the Applicant should have perceived from the reference in the title to [WARNING: A/V UNSCANNABLE], that the 3 August Application had not been received. The Applicant is a self-represented litigant, not versed in in the delicacies of words surrounding lodgement. Having been advised her message had been accepted for delivery, and that … “Any further correspondence should be directed to the relevant email address,” the Applicant’s belief that the 3 August Application had been accepted was a rational conclusion.

[22] I further note that the Applicant was diligent in ensuring that her application was proceeding, thereby reducing the period of delay to nine days. The Applicant made prompt enquiries as to the progress of her matter, and on the day she was advised the 3 August Application had not been received, she re-filed the Application.

[23] The decision in Thompson is of no assistance in the determination of this matter. In Thompson, the Applicant claimed to have filed her Application on four occasions. Commissioner Wilson found there was no evidence of the first alleged filing on 11 April, and noted that while from a date approximately a month after that alleged first filing the Applicant was advised to re-send her application form, there was no evidence that she followed that advice. 7 In summary, Commissioner Wilson found:8

“Assessment of Ms Thompson’s explanation and evidence suggests two things. First, it must be said she was sufficiently concerned or motivated about her situation to pursue a remedy at various times. She made and then withdrew a premature general protections claim. She made contact with the Commission about her situation on at least a further two and potentially four or more occasions. Secondly though, the contacts with the Commission are each several weeks apart. On Ms Thompson’s case, she had contact of some form with the Commission on 11 April, 5 and 6 May, 12 June, and 3 and 4 July. After discounting the asserted 11 April filing, which I do not consider took place, I accept there was contact of some form on the remaining dates – 5 and 6 May, 12 June, and 3 and 4 July. All of that contact was after the 21-day time period allowed for the making of unfair dismissal applications had expired.”

(Emphasis added)

[24] In contrast, the Applicant acted promptly within the limitation period, and in reply to her attempted filing was advised her message had been accepted.

[25] Having regard to the above, I am satisfied that the Applicant has provided an acceptable explanation for all of the period of the delay, and that is a matter that weighs heavily in favour of the Applicant in this matter.

What action was taken by the Applicant to dispute the dismissal?

[26] The Applicant did take action to dispute her dismissal prior to making the Application on 18 August 2021, because she attempted to file the 3 August Application.

[27] This consideration, however, enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application. In all the circumstances, as the Respondent was unaware of the 3 August Application, I do not find that the Applicant took any action to dispute the dismissal. I consider this factor is a neutral consideration.

What is the prejudice to the employer (including prejudice caused by the delay)?

[28] The Respondent did not in its submissions state that prejudice would be caused to it in the event the Commission extended the time for the Application to be made. I agree with the Respondent’s submission that this is a neutral consideration.

What are the merits of the Application?

[29] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter that the Commission is required to take into account in assessing whether there are exceptional circumstances.

[30] Having examined the materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).” 9

[31] It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence. I agree with the Respondent’s submission that the merits are a neutral consideration.

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

[32] 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, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

[33] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.

[34] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 10 Exceptional circumstances may 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.11

[35] It is clear that the factor that has been accorded significant weight in this matter is the presence of an acceptable reason for the delay, and that factor weighs heavily in the Applicant’s favour.

[36] Having regard to all of the matters listed at s.366(2) of the FW Act, I am satisfied that there are exceptional circumstances.

Conclusion

[37] Being satisfied that there are exceptional circumstances, I may consider whether to allow a further period for the Application to be made.

[38] Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,¹² I am satisfied that it is appropriate to extend the period for the Application to be made to 18 August 2021.

DEPUTY PRESIDENT

Appearances:

Ms H Malhotra, on her own behalf.

Mr J John, on behalf of the Respondent.

Hearing details:

2021.
Sydney (via teleconference)
August 5.

Printed by authority of the Commonwealth Government Printer

<PR735210>

 1   Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

 2   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

 3   Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

 6   [2020] FWC 4284.

 7   Thompson at [30] and [31].

 8   Thompson at [34].

 9   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

 10   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

 11   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

12 Fair Work Act 2009 (Cth) s 577.