Rachna Garg v Eureka Operation Pty Ltd T/A Coles Express Brandon Park

[2017] FWC 2934

[2017] FWC 2934

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rachna Garg
v
Eureka Operation Pty Ltd T/A Coles Express Brandon Park
(U2017/1774)

COMMISSIONER GREGORY MELBOURNE, 29 MAY 2017

Application for extension of time.

Introduction

[1] Mrs Rachna Garg was employed by Eureka Operation Pty Ltd T/A Coles Express
Brandon Park (“Coles Express”) as a customer team member at the Brandon Park outlet. However, her employment was terminated on 24 January 2017. She then proceeded to lodge an unfair dismissal application, however, the application was not received by the Fair Work Commission (“Commission”) until 15 February 2017, being one day after the requisite 21 day period. Mrs Garg now seeks to have additional time in which to make application.

[2] Mrs Garg’s husband, Mr Pankaj Garg, appeared on her behalf. Ms R Ellis was given permission to appear on behalf of Coles Express under s.596(2)(a) as the jurisdictional issue had some complexity and her involvement might enable it to be dealt with more efficiently. It is also noted that Mrs Garg did not provide written submissions or witness evidence in advance of the hearing, but instead provided oral submissions and evidence during the course of the proceedings.

The Issues to be Determined

[3] The Fair Work Act 2009 (Cth) (“the Act”) provides at first instance that an unfair dismissal application is to be lodged within 21 days of the date of dismissal. However, s.394(3) provides that the Commission may extend the time for making application if it believes there are “exceptional circumstances” existing to warrant an exercise of this discretion, taking into account each of the following considerations:

“(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.” 1

[4] Therefore, do “exceptional circumstances” exist, having regard to each of the matters in s.394 (3), to warrant the exercise of the discretion to grant Mrs Garg additional time in which to make her unfair dismissal application?

The Evidence and Submissions

[5] Mrs Garg was dismissed from her employment on 24 January 2017, although she did not actually receive a letter of termination until 8 February 2017. This appears to have occurred because the initial letter sent to her was sent to a previous address. However, Mrs Garg does not take issue with the date of termination, and the evidence provided by her husband indicates he also attended the meeting on 24 January 2017 when she was dismissed, and it was clear at the time that she had been terminated with effect from that date.

[6] On 4 February 2017 Mr Garg sent an email to Coles Express asking why Mrs Garg had not been provided with a letter of termination. A further letter was then sent by Coles Express on 6 February and apparently received by Mrs Garg on 8 February 2017.

[7] Mrs Garg submits that an unfair dismissal application was then prepared and hand delivered to the Narre Warren South Post Office on 13 February 2017 for posting by means of the Express Post delivery option. A copy of the Article Lodgement receipt provided by Australia Post at the time was handed up during the course of the proceedings. It confirms that an article was lodged for posting by Express Post with Australia Post at 10.35 a.m. on 13 February 2017. A copy of the Express Post tracking number retained by Mrs Garg was also handed up.

[8] Mrs Garg continues to submit that she was told by Australia Post at the time that sending the article by Express Post meant it would be delivered on the same day or on the next morning at the latest. This meant it would be received at the latest on 14 February 2017, being 21 days after the date of her termination. However, she was subsequently advised that it was only received by the Commission on 15 February 2017, being one day after the requisite 21 day lodgement period. She submits this occurred because Australia Post did not deliver the envelope in accordance with its Express Post guaranteed next day delivery.

[9] Mrs Garg also submitted in response to a series of questions from the Commission that her application had not been lodged at an earlier point in time, because she was initially waiting to receive the letter of termination, confirming the reasons for her dismissal. There were there then further delays in posting the application due to a weekend intervening.

[10] Mrs Garg also submits that she was a high performing customer team member while employed by Coles Express. She also denies any misconduct associated with filling her car with petrol without paying for it. She submits instead that she filled her car with petrol to check what was happening with the pumps in response to a customer complaint that the computer system at the petrol station had failed. She was then required to leave work in a hurry to collect her son from daycare, and was only able to pay for the fuel when she returned to work on the next day.

[11] Mr Garg also indicated in cross examination that he was aware of the requirement to make an unfair dismissal application within 21 days. He also indicated that it was clear at the meeting on 24 January 2017 that his wife had been terminated from her employment, however, the reasons for her termination were not clear at that time. However, he did agree that Mrs Garg was asked in the meeting if she was involved in a plot to steal petrol from the Coles Express Outlet at Brandon Park.

[12] Coles Express submits that Mrs Garg was asked to attend the meeting on 24 January 2017 to discuss her previous responses to allegations made about the theft of petrol from the Brandon Park outlet. She was also given the opportunity to have a support person present, and was accompanied by her husband. After a prolonged discussion extending for more than two hours, which included two breaks during the course of the meeting, she was informed that a decision had been made to terminate her employment with effect immediately. She was also told that a letter of termination would be posted to her home address. A letter was subsequently sent by registered post on 24 January 2017. However, after an email was received from Mrs Garg on 4 February 2017, confirming her new home address, a second termination letter was sent via registered post to the new address on 6 February 2017.

[13] Coles Express also submits it had a valid reason to dismiss Ms Garg because of a serious breach of its code of conduct concerning theft, personal gain and dishonesty. In its submission Mrs Garg has failed to discharge the onus of showing that exceptional circumstances exist.

[14] Ms Leah Anderson is employed as a legal counsel with Coles Supermarkets (Australia) Pty Ltd. She contacted the customer service line at Australia Post on 24 March 2017 to enquire about the Express Post delivery service. She was told in response that Narre Warren South was within the delivery area for guaranteed next day Express Post deliveries. She was also told that the Express Post envelope had been posted at the Narre South Post Office. However, she was also told that the Fair Work Commission had a redirection on mail delivered to its physical address, meaning that the envelope was then sent to its post office box before being delivered to the Commission. This appeared to be what had happened, given that the Commission’s post box number had been written on the front of the Express Post envelope.

[15] Coles Express submits, in conclusion, that late delivery by Australia Post, or deliveries that are not carried out in accordance with the guarantees provided by Australia Post, are not an “exceptional circumstance” and should be viewed instead as a regular occurrence.

[16] Coles Express also makes reference to the Full Bench decision in Winnie Wai Ling Leung v Chinese Community Social Services Centre Inc trading as On Luck Chinese Nursing Home [2015] FWCB 2106 (On Luck Chinese Nursing Home). It submits the decision can be distinguished from the circumstances involved in the present matter, based on “the evidence of Ms Anderson in relation to the next day delivery.” 2 It submits the Australia Post Express post envelope makes clear that next day delivery is subject to certain conditions, and it is the responsibility of the sender to check what those conditions are.

[17] It also submits that despite being aware of the 21 day time period for lodging an unfair dismissal application neither Mrs Garg nor her husband took steps to ensure that the application was received within the 21 day time period. In its submission Mrs Garg was instead “recklessly reliant on the mail getting there on time,” 3 and has not been able to make out the existence of any “exceptional circumstances” to warrant an extension of time being granted.

[18] Coles Express also submits that Mrs Garg’s application has little merit and she was dismissed on the grounds of misconduct relating to her dishonesty after further information was received about an earlier incident she had been involved in, and had received a formal warning about.

Consideration

[19] As indicated, in coming to a decision in this matter I am required to take account of each of the matters in s.394(3) in deciding whether “exceptional circumstances” exist to warrant an exercise of the discretion to extend time. A number of decisions of this Tribunal and its predecessors have previously considered what is required to find that “exceptional circumstances” exist to justify an extension of time. The Full Bench decision in Nulty v Blue Star Group (Nulty) 4 was handed down in the context of a general protections application, however, the principles established in the decision have been held to be of broader application. The relevant extracts from the Full Bench decision in the context of the present application are set out at [13] and [14] in the following terms:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 5

[20] The decision accordingly makes clear that “exceptional circumstances” might be found to exist because of a single factor, or a combination of factors. They are also circumstances that are out of the ordinary course, unusual, special or uncommon, however, at the same time they need not be unique, unprecedented, or very rare. However, they are not circumstances that can be said to be regularly, routinely, or normally encountered. I now turn to deal with the circumstances involved in this matter, and the submissions and evidence of the parties, by reference to these authorities and the matters in s.394(3) I must have regard to.

(a) the reason for the delay

[21] Mrs Garg admits she was aware of the 21 day time period for making an unfair dismissal application. However, she submits that two factors, in particular, caused her application to be lodged one day after this time period. Firstly, she was waiting to receive a formal letter of termination from Coles Express setting out the reason for her dismissal. Due to a change of address the initial letter that was sent was not received. After following up with her former employer a further letter was then sent on 6 February and apparently received on 8 February 2017. However, the weekend and her husband’s work commitments then intervened to cause further delays before the completed application was finally delivered to the Narre Warren South Post office on 13 February 2017 for sending by Express Post mail.

[22] Mrs Garg submits that she and her husband were told at the time by Australia Post that posting by Express Post mail guaranteed delivery by the following morning at the latest. However, this did not occur and her application was delivered to the Fair Work Commission one day later, on 15 February 2017, meaning that it was delivered one day after the 21 day time period. Mrs Garg relies on these circumstances, in particular, to support the submission that there were “exceptional circumstances” existing to justify an extension of time being granted in which to make application.

[23] Coles Express submits, in response, that Mrs Garg was aware of the 21 day time period, and had ample opportunity to ensure her application was lodged within this time period. It also submits that late delivery by Australia Post is a not uncommon occurrence, and certainly not something that comes within what might be considered to be “exceptional circumstances.”

[24] The Commission acknowledges in response that rightly or wrongly a common view might be that late delivery on the part of Australia Post, even when the Express Post service is used, is not something that is generally considered to be “out of the ordinary course, or unusual, or special or uncommon,” 6 but rather something that many would consider to be “routinely, or normally encountered.”7

[25] However, these issues were considered by a Full Bench of the Commission in the matter of On Luck Chinese Nursing Home. The decision was also referred to in the oral submissions provided by Coles Express. It submits the decision can be distinguished based on the evidence of Ms Anderson in relation to next day delivery. However, as the following extracts from the Full Bench decision make clear the circumstances involved in that matter are unneringly similar to those in the present matter.

“[18] There was evidence before the Commissioner that Ms Leung’s UDR application was posted in an Australia Post “Express Post” envelope from the “Blackburn Post Shop”, being the Australia Post Blackburn Post Office, at 10.16 am on Friday, 3 October 2014. The envelope was addressed by its sender to “Fairwork Commission Level 4, 11 Exhibition Street, Melbourne Vic 3000”. The address on the “Express Post” envelope was subsequently altered by staff of Australia Post so that it was diverted in its delivery from the original address (11 Exhibition Street) for delivery to the Commission’s GPO box address. This occurred without Ms Leung’s consent or knowledge.

[19] The “Express Post” envelope has information provided by Australia Post on it which states that “[d]elivery is guaranteed to occur the next business day only within the Express Post network”. The “Express Post” envelope also advises senders to make sure the delivery address and sender’s details are correct and complete, that the envelope can be posted at any Australia Post retail outlet or any yellow street-posting box, and to check posting times at the outlet or on the yellow street-posting box to make sure of next business day delivery.

[20] The FWC address which was put on this “Express Post” envelope is within the Express Post network. The next business day from Friday, 3 October 2014, when the envelope was posted, was Monday, 6 October 2014 and the “Express Post” envelope was posted at a relevant outlet.

[21] It is clear that if the “Express Post” envelope containing Ms Leung’s UDR application had been delivered to the FWC on 6 October 2014, Ms Leung’s UDR application would have been made within 21 days of her dismissal, she having been dismissed on 15 September 2014. However, the envelope was not delivered to the FWC until 7 October 2014.” 8

[26] The Full Bench continued to indicate:

“[23] CCSSC submitted to us that when one avails oneself of the detailed terms of the guarantee afforded by Australia Post in respect of the delivery of an “Express Post” envelope, it is apparent the guarantee is not actually for the delivery of the envelope to the address on it by the next business day.

[24] This submission of CCSSC may be correct. However, we think the words on the “Express Post” envelope suggest Australia Post is guaranteeing that it will be delivered the next business day to the address put on the envelope by the sender. The only relevant caveat on the “Express Post” envelope being in respect of the delivery address and sender’s details, the posting times and the posting outlet or box. Having regard to the wording on the “Express Post” envelope, we think it is reasonable to rely on the guarantee suggested by it, subject to meeting the other caveats on the envelope to which we have referred.” 9

[27] It then concluded in the context of s.394(3)(a) “Reason for the delay”:

“[29] The operative reason for the delay of one day in Ms Leung making her UDR application was that Australia Post failed to deliver to the FWC the “Express Post” envelope containing her UDR application in accordance with the guarantee of next business day delivery suggested on the envelope. The failure to deliver the “Express Post” envelope in accordance with that guarantee appears to have been caused by the diversion of the express post item from the valid street address given on the envelope to another determined by Australia Post. We consider in the circumstances that it was reasonable to rely on the guaranteed delivery period suggeste

[30] d on the “Express Post” envelope. Ms Leung has therefore provided an acceptable reason for the delay [sic].” 10

[28] It finally concluded:

“[40] Taking the above matters under s.394(3)(a) to (f) of the FW Act into account, we are satisfied that Australia Post’s failure to deliver to the FWC the “Express Post” envelope containing Ms Leung’s UDR application in accordance with the guarantee of next business day delivery suggested on the envelope, in the context of our findings on the other matters in s.394(3), constitutes exceptional circumstances.

[41] It is therefore necessary for us to consider whether we should exercise our discretion under s.394(3) in favour of allowing Ms Leung a further period for the making of her UDR application. Since Ms Leung’s UDR application would have been made to the FWC within time but for Australia Post’s failure and the matters telling against allowing the extension of time are limited, we have concluded we should allow Ms Leung a further period for the making of her UDR application to the day it was made, being 7 October 2014.” 11

[29] In conclusion, having had regard to the decision of the Full Bench in On Luck Chinese Nursing Home, and the startling similarities between the circumstances involved in that matter and those in the present matter, I can only conclude that I have no option but to be satisfied that Mrs Garg has provided an acceptable reason for delay.

(b) whether the person first became aware of the dismissal after it had taken effect

[30] There is no dispute about this matter. Coles Express submits that Mrs Garg was dismissed at the end of a lengthy meeting on 24 January 2017, at which her husband was also present as a support person. He confirmed in cross examination that it was clear at this meeting that Mrs Garg had been terminated. Coles Express subsequently forwarded a confirming letter of termination, however, it appears that due to a change of address the initial letter was not received by its intended recipients, and a second letter was then sent when this failure was drawn to its attention.

(c) any action taken by the person to dispute the dismissal

[31] It appears that the pursuit of this application has been the principal action taken by Mrs Garg to dispute her dismissal.

(d) prejudice to the employer (including prejudice caused by the delay)

[32] There will always be some prejudice to an employer if additional time is granted in which to make application, given that the employer will then be required to respond. However, Coles Express is an organisation backed by significant resources, and the application was only lodged one day out of time, meaning that an excessive delay has not occurred, and therefore limiting the possibility of the circumstances being clouded by the passage of time.

(e) the merits of the application

[33] Coles Express has made some significant allegations in regard to Mrs Garg. She has been dismissed on grounds of misconduct, which apparently relate to her alleged dishonesty. It submits that other team members were also terminated as a result of similar conduct on the same day. However, it also indicated in its oral submissions that Mrs Garg “was the mastermind behind the whole thing.” 12

[34] The submissions provided on behalf of Mrs Garg reject these accusations and claim she was a high performing team member. It is also claimed she has been dismissed because she witnessed behaviour carried out by others, although her submissions about these matters were not supported by any evidence.

[35] The Commission is in no position at this time to express any concluded view about the respective merits of the matter, given the limited submissions and evidence now before the Tribunal about these matters. However, it is also noted that previous decisions of this Tribunal have determined that the Commission is not required in proceedings of this kind to come to a concluded view about the respective merits of an application. For example, in the decision in Kyvelos v. Champion Socks Pty Limited 13a Full Bench of the then Australian Industrial Relations Commission concluded that:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 14

[36] The Full Bench continued:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 15

(f) fairness as between the person and other persons in a similar position

[37] Neither party made submissions suggesting this consideration was of any particular importance and the Commission is not aware of anything that needs to be considered in this context.

Conclusion

[38] Mrs Garg’s application was lodged only one day outside the requisite 21 day time period. This alone could be said to provide justification to exercise the discretion to grant additional time in which to make application. However, previous decisions of this Tribunal have emphasised that the requirement to comply with prescribed time limits, even if there is only a relatively short period of time involved, is not a mere technical requirement but constitutes a failure to comply with the substantive legislative provisions. As indicated already the legislation also makes clear that it is only in exceptional circumstances that the Commission should exercise the discretion available to extend the time for making application.

[39] I have already made reference to the conclusions reached by the Full Bench in On Luck Chinese Nursing Home at [40]. I have also referred to the startling similarities between that matter, and the circumstances in this matter. The Full Bench concluded that the failure by Australia Post to deliver the Express Post envelope in accordance with the guarantee of next business day delivery constituted “exceptional circumstances.” I have also had regard to each of the other considerations in s.394(3) that I am required to take account of. I am satisfied, in conclusion, having had particular regard to the decision of the Full Bench that I have no option but to conclude that “exceptional, circumstances” also exist in the present matter.

[40] The Full Bench in On Luck Chinese Nursing Home also decided that it should exercise the discretion to extend the period for making the unfair dismissal application. Given that Mrs Garg’s unfair dismissal application would have been delivered to the Commission within time if the guaranteed delivery time indicated by Australia Post had been adhered to I am also satisfied that the Commission should allow Mrs Garg a further period to make her unfair dismissal application, that period being until 14 February 2017 when the application was in fact lodged. An order giving effect to this decision is issued in accordance with this decision.

[41] Mrs Garg’s unfair dismissal application will now be referred to the relevant FWC Panel Head for further processing.

COMMISSIONER

Appearances:

P Garg for the Applicant.

R Ellis for the Respondent.

Hearing details:

2017

Melbourne:

March 24.

 1 Fair Work Act 2009 (Cth) s 394(3).

 2   Transcript at PN446.

 3   Transcript at PN455.

 4   [2011] FWFB 975.

 5   Ibid at [13]-[14].

 6   Nulty v Blue Star Group [2011] FWAFB 975 at [13].

 7   Ibid.

 8   Leung v Chinese Community Social Services Centre Inc trading as On Luck Chinese Nursing Home [2015] FWCFB 2106 at [18]-[21].

 9   Ibid at [23]-[24].

 10   Ibid at [28]-[29].

 11   Ibid at [40]-[41].

 12   Transcript at PN465.

 13   (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421.

 14 Ibid at [14].

 15   Ibid.

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