Sarah McAllister v Smartcaller Pty Ltd T/A Smart Caller

[2016] FWC 454

[2016] FWC 454

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah McAllister
v
Smartcaller Pty Ltd T/A Smart Caller
(U2015/16347)

COMMISSIONER LEE MELBOURNE, 29 JANUARY 2016

Application for relief from unfair dismissal - extension of time - s.394 Fair Work Act 2009.

[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Sarah McAllister (the Applicant) claims that she was unfairly dismissed from her employment with Smartcaller Pty Ltd T/A Smart Caller (the Respondent).

[2] The application was lodged by the Applicant on 30 November 2015. The Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy, lodged by the Respondent on 8 December 2015, objected to the application on two grounds. Firstly that the application had been made outside the statutory time limit and secondly that the dismissal was a case of genuine redundancy.

[3] The Applicant commenced her employment with the Respondent on 12 September 2013. It is not in dispute that the Applicant was notified that the Respondent was considering making her position redundant on 28 October 2015 and that the Applicant was then actually made redundant on 4 November 2015.

[4] The matter was allocated to me for jurisdictional determination on the question of whether to allow a further period of time for the lodging of the application pursuant to s.394(3) of the Act. The matter was listed for Jurisdictional Conference/Hearing (Extension of Time) on 15 January 2016 in Melbourne with video link to Sydney. I granted permission for the Respondent to be represented by Mr. Ruddell of Employsure as I was satisfied there was some complexity in the matter which satisfied me regarding the requirements of s.596 (2)(a). Ms. McAllister represented herself at the hearing.

The law to be applied

[5] The Act provides that;

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.”

[6] As the dismissal took effect on 4 November 2015 the application should have been lodged on or before 25 November 2015. The application was lodged on 30 November 2015 and is therefore 5 days out of time. Therefore the matter can only proceed if a further period under section 394(3) of the Act is allowed.

Evidence

[7] The Applicant gave evidence on her own behalf and Mr. Tim Long, the General Manager for the Respondent gave evidence.

[8] The Applicant commenced employment as a casual employee on 12 September 2013. On 14 July 2015 she converted to permanent part time. It is not in dispute the dismissal took effect on 4 November 2015.

[9] Mr. Long gave evidence to the effect that in October 2015, as a result of lower sales and excess expenses there was a need for cost savings. One possible area identified was the Applicant’s position. The Applicant was advised in writing on 28 October 2015 that the Respondent was considering making her position redundant and a meeting was called to discuss this with the Applicant on 29 October 2016. Mr. Long also gave evidence that there were no other options identified by the Applicant and that there was no opportunity for redeployment. Ultimately, the Respondent determined to make the Applicant’s position redundant. The termination of employment took effect on 4 November 2015.

[10] At the hearing, the Applicant gave evidence that the discussion with Mr. Long about the possible redundancy did not occur on 29 October 2015, it occurred on 30 October 2015. Mr. Long agreed with the Applicant that the meeting did in fact occur on 30 October 2015. Mr. Long set out his recollection of the conversation that took place on 30 October 2015 at paragraph 8 of his statement. The Applicant confirmed in her evidence that the content of the conversation as set out by Mr. Long was generally correct.  1 However, the Applicant claims that there was no chance to really communicate about the redundancy. 2 The Applicant was also concerned about a redeployment proposal that involved less hours and also required her to return to casual employment.

[11] The Applicant’s evidence was that the reason for the delay in lodging the application with the Fair Work Commission (FWC) was entirely as a result of her incorrectly addressing the envelope, which ultimately required the person in receipt of the letter to readdress the letter. The Applicant assumed that the error in the address significantly delayed the delivery of the letter. The postal address of the FWC in Melbourne is PO. Box 1994, Melbourne, Vic, 3001. The original envelope that the Applicant posted the application is on the FWC file. It is clear from looking at the envelope that the Applicant did make an error in one digit of the PO Box number, incorrectly putting PO Box 1944. At the bottom of the envelope, someone has hand written: “Not at this address, please redirect to PO Box 1994 Melbourne Vic 3001”.

[12] The Applicant’s written statement filed prior to the hearing states that “the mailing date was within the 21 days.” However, there was no information as to when the Applicant did post the envelope. During the hearing, the Applicant’s evidence was that she posted the application on 10 November 2015, the same date that the Form F2 was dated. The Applicant also gave evidence that she tried to lodge the application in the first instance with the Fair Work Ombudsman (FWO) on 10 November 2015. However, the FWO advised her that was not possible. Subsequent to the hearing, I requested staff of the FWC to investigate with the FWO if they had any records of contact with Ms. McAllister during the relevant time period. The FWO confirmed that there had in fact been contact with Ms. McAllister on 29 October 2015 where she advised she was to be made redundant and did not think it was a genuine redundancy and again on the 10 November 2015 when she sought to lodge an unfair dismissal application with the FWO and was referred by the FWO to the FWC. The Applicant and Respondent were provided with the opportunity to respond to the information provided to the FWC from the FWO. The Respondent submitted, among other things, that the information does not support a position that making the call to the FWO could be considered as part of the reason for the claim being made out of time. The Applicant responded that she was satisfied with the information provided in establishing the procedures implemented by her before and after her redundancy.

[13] The Applicant’s’ evidence is that she used the mail service as she does not have a computer.  3 The envelope that the application arrived in has a postmark on it which is not at all clear. It appears that the first digit of the date is a 2. However, the second digit, assuming that there is a second digit, is not clear. The Respondent’s’ representative agreed that the postmark was not clear. 4

[14] The Applicant also gave evidence that she sought to be converted from a casual employee to a part time employee throughout her employment and that this aim was ultimately achieved in July 2015. The Applicant gave evidence that she was employed from a vulnerable employment pool. She explained that this was part of Centerlink’s Newstart program which provides support to job seekers facing particular barriers to entering the workforce. The Applicant stated that she felt undervalued and bullied in the workplace. Her evidence was that her role in dispatch had grown in the 2 years that she was employed, that her work hours had increased accordingly and that she had plenty of work to do and that her position would always be needed. She felt that she was targeted for redundancy as a result of her asserting her right to be part time rather than casual. The Applicant also indicated that she is a single mother with a mortgage and two young children and the dismissal had a significant impact on her.

Consideration - exceptional circumstances

[15] Section 394(3) of the Act provides that the FWC may allow a further period for the application to be made if the FWC is satisfied there are exceptional circumstances taking into account the criteria set out in section 394(3)(a) - (f) of the Act.

[16] The term exceptional circumstances was considered by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd⁵, where the Full Bench stated that;

“[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.

...

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[17] While Cheyne Leanne Nulty v Blue Star Group Pty Ltd considered the term exceptional circumstances in relation to section 365 of the Act, the discussion is applicable to the term in section 394. I will adopt the approach of the Full Bench as to the meaning of exceptional circumstances in my determination of this matter.

[18] I will now deal with each criterion of section 394(3) of the Act in turn.

(a) the reason for the delay;

[19] The Applicant’s evidence is that she posted the application to the FWC on 10 November 2015. Her evidence that she did so is consistent with her evidence as to the dates of contact with the FWO and with the date on the Form F2. It is clear that there was a slight numerical error in the address she put on the envelope and it is likely that has contributed to the delay. Australia Post state on their website that their estimated standard delivery times for regular letters within metropolitan areas of capital cities is 2-3 days. If the application was posted on 10 November 2015 then the Applicant was entitled to assume that the letter would reach the FWC well within the statutory time period. The postmark on the letter suggests it was not postmarked until on or after 20 November 2015. If the letter was posted on 10 November 2015, this seems a long period of time after it was posted. However, I have no evidence about the operation of Australia Post and what happens to letters that have an incorrect address and when they are postmarked. I found the Applicant to be a highly credible witness. The evidence supports a finding that the Applicant posted the letter on 10 November 2015 and I accept that she did so. The small error in the address of the FWC was likely the cause of the delay in the delivery of the letter.

[20] The Respondent drew my attention to the decision in Elward v Asset Shrinkage Solutions.  6 In that decision, the Commissioner declined to extend the time in circumstances where the Applicant had difficulty in lodging an application electronically. In Elward, the Commissioner focussed on a concern about the Applicant leaving the lodgement of the application to the last moment and was concerned that accepting the circumstances as valid reasons for a delay in filing the application would ignore the elapsed time between the dismissal and the onset of technical problems. 7 However, in this matter, the Applicant has not lodged her application at the last minute, she has taken action to lodge the application within a very short time period after the dismissal.

[21] In Officeworks Ltd v Parker (Officeworks)  8 the Full Bench observed that all the factors in section 394(3) of the Act need to be considered. In Officeworks the Full Bench stated:

“we do not consider that incompetence in sending a facsimile transmission is of itself such an unusual or special occurrence as to support a conclusion that there were exceptional circumstances in the present matter”  9

[22] I note that in Officeworks, the Full Bench overturned the decision of the Senior Deputy President on a number of grounds, including that the Senior Deputy President’s findings that the Applicant attempted to lodge an application in time was not reasonably open to her on the evidence.  10 Further, the application in Officeworks was lodged 16 days outside the statutory time period.

[23] In Johnson v Joy Manufacturing Co Pty Ltd  11 His Honour allowed an extension of time where the Applicant posted the application on the day it was due to be lodged in the FWC after the Applicant had experienced difficulties lodging the application electronically. In that case the application was lodged four days late. The Vice President found in his consideration of the reason for the delay that the Applicant had made a bonafide attempt to make a real time application within the statutory time period. 12

[24] Ultimately, each decision turns on its own particular set of facts. In this matter, I am satisfied that the Applicant has moved quickly to lodge an unfair dismissal application, firstly with the FWO and quickly thereafter with the FWC. Given the date the letter was posted the Applicant was entitled to assume that it would be received well within the time period. The letter was ultimately delivered 17 days outside of Australia Post’s estimated standard delivery times for regular letters within metropolitan areas of capital cities. I am satisfied that this is an acceptable reason for the delay.

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

It is not in dispute the Applicant became aware of the dismissal upon receipt of the letter of termination on 4 November 2015. This is a neutral consideration.

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

[25] It is clear that the Applicant took action to contact the FWO once she was aware that the dismissal was a likely prospect, informing the FWO that she did not consider the dismissal a genuine redundancy. She also sought in error to lodge the application at first instance with the FWO, six days after her employment was terminated. This factor weighs in favour of granting the application.

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

[26] The Respondent submitted but did not provide any evidence to suggest that there was prejudice to them as a result of the delay. However, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.  13 This is a neutral consideration.

(e) the merits of the application

[27] The merits of the case are clearly linked to whether or not there was a genuine redundancy. A dismissal is a case of genuine redundancy when the employer no longer requires a person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise and the employer has complied with any obligation imposed by an applicable modern award or enterprise agreement to consult about the redundancy.

[28] On the question of consultation obligations, there were no submissions made or evidence as to whether the Applicant was or was not covered by a modern award or enterprise agreement and no reference was made to any associated requirement to consult. In any case, the evidence is clear that a level of consultation did take place prior to the termination of employment though the Applicant’s’ evidence was that there was really no chance to communicate about the redundancy. I am not in a position to determine if the consultation satisfied the requirements for consultation, should there have been such a requirement.

[29] There was evidence as to whether the position that the Applicant held was not required to be done by anyone or whether it would have been reasonable in all the circumstances to redeploy the Applicant to a new position. Mr. Long gave evidence that there had been a downturn in the business and that savings had to be made and the decision was made to distribute the duties of the Applicant among other staff. The Applicant claims that she was not genuinely redundant as there was plenty of work for her to do and her work hours had increased over time.

[30] While some evidence was provided that related to the merit of the matter, I am not in a position, nor is it appropriate to embark on detailed consideration of the substantive case.  14 I am not able to conclude that the application is without merit. This is a neutral consideration.

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

[31] No particular issue arises in respect to this factor beyond that already canvassed in the consideration in paragraphs [19] – [24] of this decision.

Conclusion

[32] As the dismissal took effect on 4 November 2015, the application should have been lodged on 25 November 2015 to be held to be lodged within the statutory timeframe. The application was lodged on 30 November 2015, five days late. I am satisfied that there is an acceptable reason for the delay. This weighs in favour of granting an extension of time. When the Applicant became aware of her dismissal and prejudice to the employer are neutral considerations. The evidence is that the Applicant took action to dispute her dismissal within days of her dismissal with the FWO. This weighs in favour of granting the application.

[33] Taking into account all of the relevant factors, I am satisfied that there are exceptional circumstances that would warrant allowing a further period for the making of an application for an unfair dismissal remedy. I propose to allow the Applicant an extension so that the period within which Ms McAllister can make her application is extended to 30 November 2015.

[34] An order giving effect to this decision has been issued separately in PR576359.

COMMISSIONER

Appearances:

S McAllister in person

J Ruddell for the Respondent

Hearing details:

2016

Melbourne – Sydney (Video Link)

15 January

 1   PN196

 2   PN204

 3   PN136

 4   PN279-281

5 Cheyne Leanne Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975

 6   Zelda Elward v Asset Shrinkage Solutions Pty Ltd T/A Asset Shrinkage Solutions[2014] FWC 4095

 7   [2014] FWC 4095, [17] – [18]

 8   Officeworks Ltd v David Parker[2014] FWCFB 5779

 9   [2014] FWCFB 5779, [32]

 10   [2014] FWCFB 5779, [27]

 11   Christopher Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 12   [2010] FWA 1394, [14]

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

 14   Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421

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<Price code C, PR576358>