Ms Susan Anderson v BSA Limited

[2016] FWC 8519

[2016] FWC 8519

FAIR WORK COMMISSION

DECISION

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

Ms Susan Anderson
v
BSA Limited
(C2016/6340)

COMMISSIONER SAUNDERS NEWCASTLE, 16 DECEMBER 2016

Application to deal with contraventions involving dismissal – time extended to make application

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, 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 Susan Anderson (the applicant) a further period for her general protections application (the Application) to be made.

The Hearing

[3] On 30 November 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant gave evidence in support of her application for an extension of time. The respondent did not adduce any evidence, but it did cross examine the applicant and made submissions in opposition to the applicant’s application for an extension of time.

[5] At the hearing the respondent requested that the applicant check her computer records and produce “screen shots” showing the properties of the Application she prepared and ultimately filed in the Commission. The applicant agreed to, and did, produce such documents. They form part of the applicant’s evidentiary case in support of her application for an extension of time. I also gave the parties an opportunity to make further written submissions following the production by the applicant of the additional documents. Such further submissions were filed by the respondent and applicant respectively on 8 and 9 December 2016.

Legislative Scheme

[6] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal 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) any action taken by the person 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 person and other persons in a like position.”

[7] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3

[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. 4In 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.”

Consideration

Paragraph 366(2)(a) – reasons for delay

[9] 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

[10] There must be an acceptable reason for the delay in making the general protections application. 7

[11] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8 Ignorance of the 21 day timeframe is not an exceptional circumstance.9

[12] 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. 10 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:11

“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.”

Relevant chronology of events and reasons for delay

[13] There is no dispute and I am satisfied on the evidence that the applicant was dismissed by the respondent on 21 September 2016.

[14] The 21 day time period for the applicant to make her Application expired on 12 October 2016. 12 Given that the applicant filed her Application on 24 October 2016, the Application was 12 days late.13

[15] In accordance with the principles summarised in paragraphs [9] to [12] 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 12 October 2016 to 24 October 2016. However, the circumstances from the time of the dismissal (21 September 2016) 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.

[16] The applicant submits that the sole reason for her delay in filing her Application was due to either a technical issue or an inadvertent “user error” on her part. In particular, the applicant says that on 11 October 2016 she pressed “send” on her email to the Commission (using the email address [email protected]), to which she had attached her Application and her fee waiver form. However, the Commission does not have any record of having received an email or the Application from the applicant on 11 October 2016, or at any time prior to 24 October 2016.

[17] Because the applicant had not heard anything back from the Commission, she contacted the Commission by telephone and spoke to a person by the name of Sarscha. The applicant then sent an email in the following terms to Sarscha at 4:08pm on 24 October 2016:

“Sarscha

Following our conversation I am following up my lodgement of general dismissal and waiver fee

I lodged the application around the 11th of Oct and emailed it via your web site to [email protected] as advised by fair works

My name is Susan Anderson and the company name of the despondent is BSA ltd…”

[18] Following this communication, the applicant sent a further email in the following terms to the Commission at 6:43pm on 24 October 2016:

“I am resubmitting my application and waiver form previously sent to your office in Melbourne using the email address of [email protected]. 

I used this email address after verifying it with your office and following my call to your office today to see how my application was progressing only to be informed that you never received it. I have no explanation myself as to why it was not received and therefore lodged. I email it on the 11/10/2016.

I am forwarding it again to you to please consider my application and waiver form both attached. I have also attached a couple of correspondence for my manager at the time Pia Ballecer.

I do have more emails sent from myself to Pia at the time but have included them all as they basically all show the same bullying tactics.

Again I please ask that you will accept this application even though now it is past 21 days but I feel that if you please consider the above circumstances you will.”

[19] The Application was taken to have been filed in the Commission on 24 October 2016. The Application filed in the Commission on 24 October 2016 is dated 11 October 2016.

[20] The applicant gave oral evidence to the effect that she became aware of the 21 day time limit for filing her Application when she downloaded the F8 application form from the Commission’s website about two days prior to 11 October 2016. The applicant also gave evidence that she does not have a copy of the email she sent to the Commission on 11 October 2016. The applicant says that she did not receive any “bounce back” notification in relation to the email she believes she sent on 11 October 2016, but she has not been able to locate the original email in her sent items, drafts, inbox or deleted items and cannot explain why she is unable to locate it in her email account. Because the applicant has not been able to locate a copy of the email she says she sent to the Commission on 11 October 2016, she accepts that some sort of “user error” on her part may be the reason her email was not received by the Commission on 11 October 2016, notwithstanding she recalls pressing send on the email on 11 October 2016. The applicant denies giving untruthful or misleading evidence in relation to her conduct in preparing and sending her Application to the Commission by email on 11 October 2016.

[21] The applicant provided the Commission with “screen shots” showing the properties of the F8 Application form and waiver form she filed in the Commission and had saved on her computer. The properties box on each document shows that each document was created, modified and accessed on 11 October 2016. In particular:

(a) the form F8 Application was created at 3:04:01pm, accessed at 3:04:02pm, and modified at 3:04:05pm on 11 October 2016; and

(b) the waiver form was created at 3:30:02pm, accessed at 3:30:03pm, and modified at 3:30:07pm on 11 October 2016.

[22] I accept that the properties of the F8 Application form and waiver form, including that each document was “created” on 11 October 2016, do not establish when the Application was sent to or received by the Commission.

[23] The respondent submits that the applicant’s evidence to the effect that she sent, or attempted to send, her Application to the Commission on 11 October 2016 should not be accepted as truthful or reliable evidence. The respondent’s submissions in this regard may be summarised as follows:

(a) the applicant is familiar with sending and receiving emails. She works in computer software. The applicant was not able to explain how she could have sent an email to the Commission on 11 October 2016, but not be able to find such an email in her sent items or any other part of her email account. In contrast, the applicant acknowledged that her emails to the Commission on 24 October 2016 are in the sent items of her email account;

(b) the applicant gave oral evidence to the effect that she downloaded the Application from the Commission’s website about two days prior to 11 October 2016. This is inconsistent with the properties information contained in the “screen shot”, which shows that the Application was “created” on 11 October 2016;

(c) the applicant gave oral evidence that it took her a long time to write a detailed application. The respondent contends this is inconsistent with the applicant “creating” the Application on 11 October 2016 and sending it to the Commission on the same day;

(d) the applicant gave oral evidence that she spoke to a person from the Commission about a week after she allegedly sent her Application to the Commission on 11 October 2016. The respondent contends that is inconsistent with the applicant’s email of 24 October 2016, which demonstrates that she called the Commission on that day. 24 October 2016 is 13 days after 11 October 2016, not about a week.

(e) the respondent relies on rule 14(5) of the Fair Work Commission Rules 2013 (Cth) (the Rules) which requires, inter alia, a person who lodges a document by email to retain a paper copy of the email as a “sent item” showing the transmission address and the date and time of transmission. The applicant failed to comply with that rule in relation to the email she says she sent to the Commission on 11 October 2016;

(f) the respondent also relies on Rule 14(4), which provides that if a document lodged with the Commission is an application commencing a matter:

(i) the General Manager must send an acknowledgement of lodgement, by email, to the person lodging the document;

(ii) the application is not taken to have been lodged until the acknowledgement of lodgement has been sent; and

(iii) once the acknowledgement of lodgement has been sent, the application is taken to have been lodged at the time it was received electronically by the Commission.

No acknowledgement of lodgement was sent to the applicant in relation to the email she says she sent to the Commission on 11 October 2016.

(g) the circumstances surrounding the lodgement of the Application by the applicant are not “out of the ordinary course, or unusual, or special, or uncommon”.

[24] I am satisfied that the applicant did not lodge her Application in the Commission on 11 October 2016. So much is clear by reason of the fact that the Commission has no record of having received an email or Application from the applicant on 11 October 2016, the applicant did not keep a copy of the email allegedly sent by her to the Commission on that day, and, importantly, the applicant did not receive an acknowledgement of lodgement, by email, from the Commission in relation to the email and Application she says she sent to the Commission on 11 October 2016. Pursuant to Rule 14(4), the Application is not taken to have been lodged until the acknowledgement of lodgement has been sent.

[25] I accept the applicant’s evidence that she prepared her Application on 11 October 2016 and pressed send to email the Application to the Commission on 11 October 2016, for the following reasons:

(a) the “screenshots” of the properties boxes for the Application and the waiver form show they were created on 11 October 2016. The Application is also dated 11 October 2016. This evidence does not prove that the applicant sent, or attempted to send, her Application to the Commission on 11 October 2016, but it is consistent with her evidence that she did so;

(b) I accept the applicant’s evidence that she was aware of the 21 day time limit to file her Application before that time limit expired. In my view, it is likely that a person who is aware of the 21 day time limit and who “creates” an application on 11 October 2016 would also send, or attempt to send, it to the Commission prior to the expiry of the 21 day time limit on 12 October 2016;

(c) the correspondence between the applicant and the Commission as set out in paragraphs [17] to [18] above is consistent with the applicant’s evidence that she pressed send on her email (to which her Application was attached) to the Commission on 11 October 2016. As soon as the applicant was informed that the Commission had not received her Application on 11 October 2016, she took immediate steps to send it to the Commission; and

(d) I found the applicant to be a credible witness. She answered questions directly in cross examination, made appropriate concessions, such as that it may have been “user error” on her part, and was not shaken during cross examination. As to some of the particular submissions made by the respondent in relation to the applicant’s credibility:

(i) I accept that the applicant gave oral evidence to the effect that she downloaded the F8 application form from the Commission’s website a couple of days before she submitted it on 11 October 2016. However, I do not accept the respondent’s contention that the applicant must have lied about this because the properties document shows she “created” the Application on 11 October 2016. This particular allegation of dishonesty was not put to the applicant in cross examination, even though the respondent was given (but declined) the opportunity to cross examine the applicant further after she produced the “screenshot” documents. There could be a number of innocent explanations for the difference between the date of downloading the F8 application form and the “creation” of the Application. For example, the applicant may have downloaded the generic F8 application form and then thought about, or made handwritten notes in relation to, what she would include on the form before “creating” the Application as a new document on 11 October 2016;

(ii) the applicant gave oral evidence that she contacted the Commission about a week after sending her email to the Commission on 11 October 2016. The applicant’s email dated 24 October 2016 establishes, on the balance of probabilities, that the applicant did not contact the Commission to follow up on her Application until 24 October 2016. The difference between “about a week” and 13 days is not particularly significant in the circumstances. It is not significant enough to cause me to alter my view as to the credibility of the applicant as a witness in these proceedings; and

(iii) the fact that the applicant took a considerable amount of time preparing her Application is not necessarily inconsistent with the fact that she “created” the Application on 11 October 2016 and sent, or tried to send, it to the Commission on the same day. Again, the applicant was not cross examined about this matter. I accept the applicant’s contention that she spent time making hand written notes before transposing that information into her Application.

[26] Because the applicant has not been able to find on her email account any evidence of her email being sent to the Commission on 11 October 2016 and the Commission has no record of such an email being received on that day, I am satisfied on the balance of probabilities that the applicant’s actions in pressing send on her email to the Commission on 11 October 2016 did not result in the email actually being sent to the Commission on that date for one of two reasons:

(a) First, the applicant made, as she called it, some sort of “user error” which meant that her email was not transmitted to the Commission. In my view, this is the most likely cause of the problem; or

(b) Secondly, some technical problem or flaw in the applicant’s computer and/or email system meant her email was not transmitted to the Commission on 11 October 2016.

[27] In either case, I am satisfied that the circumstances concerning the late filing of the applicant’s Application were out of the ordinary course, unusual, special and uncommon. 14 In particular, it is out of the ordinary course, unusual, special and uncommon for an experienced user of email systems to press send on an email and for the email not to be transmitted to the intended recipient for either of the reasons set out in the previous paragraph. This factor (s.366(2)(a)) weighs in favour of granting the applicant an extension of time.

Paragraph 366(2)(b) – any action taken by the person to dispute the dismissal

[28] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 15

[29] There is no evidence before the Commission that the applicant took any action to dispute her dismissal, other than by making her Application. This weighs against a finding that there are exceptional circumstances.

Paragraph 366 (2)(c) - prejudice to the employer (including prejudice caused by the delay)

[30] Prejudice to the employer will weigh against granting an extension of time. 16 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.17

[31] A long delay gives rise “to a general presumption of prejudice”. 18 The period of the delay in this matter was 12 days. I consider that to be a reasonably short period of delay.

[32] 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. 19 No such evidence was adduced by the respondent in this case. The respondent contends that it has been prejudiced, and will continue to be prejudiced if time is extended, by reason of the costs it has incurred, and may continue to incur, in defending a claim without merit. The respondent also submits that the individuals who are likely to provide instructions to the respondent’s lawyers in any conciliation conference (if the extension is granted) have pre-booked leave over December 2016 and January 2017.

[33] I deal with the question of the merits of the Application below. As to participation in a conciliation conference, I am confident such a conference could be arranged at a time when both parties could participate in it in a meaningful way.

[34] In all the circumstances of this case, I am satisfied that prejudice to the respondent is a neutral consideration.

Paragraph 366(2)(d) - merits of the application

[35] The applicant contends that her employment was terminated in contravention of s.340 of the Act. The applicant also contends that the respondent contravened s.346 of the Act by dismissing her as a result of engaging, or proposing to engage, in industrial activities.

[36] The applicant’s Application does not reveal the conduct said to constitute the basis of her claim under s.346 of the Act, nor was any such information revealed in the applicant’s outline of argument or her evidence. In those circumstances, the applicant’s s.346 claim does not appear to have any merit.

[37] However, the applicant’s s.340 claim is not without merit. The applicant contends that she advised the respondent that she was going to make an official complaint to human resources about her manager’s failure to tell her about taking annual leave on 16 September 2016, which the applicant claims resulted in her being unable to carry out the duties of her role. However, before this meeting could take place, the applicant’s employment was terminated. The applicant will no doubt contend that one of the reasons for terminating her employment was because she proposed to make a complaint about her employment. The respondent denies that the applicant’s proposed complaint was a reason for termination of her employment and contends that the applicant was dismissed due to her inadequate performance and inappropriate conduct towards her supervisor. The respondent also contends that the decision to dismiss the applicant was made before the events on 16 September 2016.

[38] The resolution of the contested factual questions concerning the reason(s) for the termination of the applicant’s employment and the date on which the decision was made to dismiss the applicant will only be able to be determined after a full hearing on the merits, including cross examination of the decision makers. In those circumstances, I am satisfied that the merits of the Application insofar as it relies on an alleged contravention of s.340 of the Act is a neutral consideration in relation to whether or not I should extend time for the Application to be made.

Paragraph 366(2)(e) - fairness as between the person and other persons in a like position

[39] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 20 considered this criterion and said (at [41]):

“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 Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[40] I am not satisfied that the issue of fairness as between the applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[41] Having taken into account the matters referred to in paragraphs [12] to [40] above, I am, on balance, satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. The applicant’s circumstances concerning the reason for the delay in making her Application were out of the ordinary course, unusual, special and uncommon, for the reasons set out above. Apart from any action taken to dispute the dismissal, the other relevant factors are neutral in this case. The fact that the applicant did not take any action to dispute the dismissal weighs against granting an extension, but the unusual circumstances concerning the reason for the delay should, in my view, be given more weight in the circumstances of this case. The exceptional circumstances threshold having been met, I am also satisfied that it is appropriate to exercise my discretion to extend time.

[42] Accordingly, the application for an extension of time is granted. The jurisdictional objection is dismissed. I will issue an order extending time [PR588475].

COMMISSIONER

Appearances:

Ms S Anderson on her own behalf;

Ms R Kelleher, solicitor from Johnson Winter & Slattery Lawyers, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

November, 30.

 1   Section 366(1)(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   Secction 366(2) of the Act.

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 4 [2011] 203 IR 1

 5   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 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   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 10   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]

 11   [2016] FWCFB 349 at [31]

 12   That is, 21 days from 21 September 2016 (not including 21 September) is 12 October 2016.

 13   That is, 24 October 2016 is 12 days after 12 October 2016.

 14   Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728 at [24]-[25] and the authorities cited therein

 15   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 16   Ibid.

 17   Ibid.

 18   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 19   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February

2003) PR927201 at [16]

 20   [2016] FWCFB 6963

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