Rebecca Mayne v All Earth Group Pty Ltd

[2016] FWC 3847

[2016] FWC 3847

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Mayne
v
All Earth Group Pty Ltd
(U2016/7020)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 JUNE 2016

Application for relief from unfair dismissal.

[1] Ms Rebecca Mayne alleged that the termination of her employment by All Earth Group Pty Ltd was unfair. All Earth Group denies the allegation.

[2] Given her dismissal took effect on 26 April 2016 her unfair dismissal application lodged on 18 May 2016 was not made within 21 days of the date the dismissal took effect.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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." [Endnotes not reproduced]

(a) the reason for the delay;

[1] Ms Mayne posted her unfair dismissal application by express post on 16 May 2016. She posted it at a post office. Ms Mayne gave evidence that she tried to file the application on line but had difficulty because her scanner only scans one page at a time and so she decided to post it as she thought it would arrive in time. She also gave evidence that she was overseas from 5-10 May 2016 and she only received her termination letter on 5 May 2016 whilst she was overseas.

[2] In Leung v Chinese Community Social Services Inc 2a Full Bench held that:

[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 suggested on the “Express Post” envelope. Ms Leung has therefore provided an acceptable reason for the delay.

[3] In this matter Ms Mayne sent her application to the Fair Work Ombudsman. The Australia Post website discloses that it was delivered at 5.40pm on the 17 May 2016. The Fair Work Ombudsman delivered it to the Commission on 18 May 2016. It is not unusual for employees to confuse the Fair Work Ombudsman and the Fair Work Commission.

[4] All Earth Group submitted that Ms Mayne had sufficient time before she went on holidays and after she returned to lodge her application.

[5] It is not clear given the delivery time disclosed by Australia Post that Ms Mayne’s application form would have arrived at the Commission prior to 18 May 2016, even if she had sent it to the correct address. An examination of the Australia Post delivery guarantee for express post letters posted from Gosnells for delivery to Perth discloses that next business day delivery is not guaranteed because Gosnells is outside of the next business day network.

[6] However it is not clear to me that this information is readily available to someone who posts a letter at a post office. The information that the guarantee does not apply is in fine print on the back of the envelope.

[7] I am satisfied that Ms Mayne had a reasonable explanation for the delay in lodging her application. I am satisfied that it was not unreasonable for her to rely on the Australia Post guarantee.

[8] This weighs in favour of a finding that there are exceptional circumstances.

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

[9] Ms Mayne was aware of the dismissal when it took effect. This weighs against a finding that there are exceptional circumstances.

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

[10] Ms Mayne did not take any action to dispute her dismissal at the time apart from lodging this application. This weighs against a finding that there are exceptional circumstances.

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

[11] There was no evidence or submission about any prejudice to All Earth Group. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[12] In the matter of Kornicki v Telstra-Network Technology Group 3 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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." 4

[13] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case." 5 

[14] Ms Mayne says that after she notified her employer that she was pregnant she was told that her performance was not up to standard. She said she had not been give adequate training and she was required to perform another employee’s work due to his absence.

[15] Ms Law gave evidence of discussions with Ms Mayne about her performance and gave evidence that her performance did not improve. She denied that Ms Mayne’s pregnancy had anything to do with her dismissal.

[16] I am not able to make a final assessment of the merits of the matter as there are factual disputes between the parties. I find that this criterion is a neutral consideration.

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

[17] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 6  considered this criterion and said "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.7

[18] There were no submissions that there were any persons in a similar position.

Conclusion

[19] I am satisfied that there are exceptional circumstances. Ms Mayne has provided a reasonable explanation for the delay in lodging her application and her claim is not without merit. I will order that the time for lodging the application be extended to 18 May 2016 and her application will be referred to conciliation.

DEPUTY PRESIDENT

Appearances:

R. Mayne on her own behalf.

L. Law for the Respondent.

Hearing details:

2016.

Melbourne and Perth, by telephone link:

14 June.

 1   [2011] FWAFB 975.

 2   [2015] FWCFB 2106.

 3   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 4   Ibid.

 5   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 6   [2015] FWC 8885.

 7 Ibid at [29].

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