Savannah Jones v The Trustee for Cafe Thirty Three Trust
[2023] FWC 733
•30 MARCH 2023
[2023] FWC 733
The attached document replaces the document previously issued with the above code on 30 March 2023.
Citation at footnote 12 corrected.
Associate to Deputy President Anderson.
Dated 30 March 2022.
| [2023] FWC 733 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Savannah Jones
v
The Trustee for Cafe Thirty Three Trust
(U2023/1103)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 30 MARCH 2023 |
Application for an unfair dismissal remedy – extension of time – lodgement email mistakenly not sent – lodgement made once mistake noticed – no exceptional circumstances – application dismissed
Savannah Jones (Ms Jones or the applicant) has applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy in relation to a dismissal by The Trustee for Cafe Thirty Three Trust (Cafe Thirty Three, the respondent or the employer) which took effect on 20 January 2023.
Ms Jones’s application was received by the Commission on 12 February 2023.
The application is two days outside the statutory 21-day period for making unfair dismissal claims. Ms Jones seeks an extension of time. Cafe Thirty Three oppose an extension being granted.
This decision determines whether an extension of time should be granted.
I issued directions on 20 March 2023.
I heard the extension of time issue by video conference on 23 March 2023.
Ms Jones and Cafe Thirty Three were self-represented; the employer by its owner Ms Carol Dallinger.
Ms Jones and Ms Dallinger gave evidence.
The facts, drawn from both oral and documentary evidence, are largely not in dispute.
Facts
I make the following findings.
Cafe Thirty Three operates a café in the township of Gatton in the Lockyer Valley in regional Queensland.
Ms Jones was employed as a casual by Cafe Thirty Three from December 2021 until dismissed on 20 January 2023.
Café Thirty Three is a small business within the meaning of the FW Act. It employs three persons. It is owned and operated by Ms Dallinger.
On 20 January 2023 Ms Dallinger told Ms Jones that she would not be offered further shifts, with immediate effect. Ms Dallinger had told Ms Jones that she was dissatisfied with her reliability and performance. Ms Jones disputed that and told Ms Dallinger she considered the decision to be wrong.
On 23 January 2023 Ms Dallinger sent Ms Jones an Employment Separation Certificate (Certificate) by email.[1] Ms Jones did not notice the email on her device at the time. It was not until the day after the hearing of this matter that Ms Jones, upon checking, found the email in a folder where she had not expected to locate it.
A factual dispute exists as to whether Ms Jones sent Ms Dallinger reminder texts requesting the Certificate. Ms Jones said she did on 27 January and 1 February 2023.[2] Ms Dallinger could not recall reminder texts. These having been belatedly produced by Ms Jones, it is more likely than not that the texts were sent by Ms Jones and that Ms Dallinger, having already forwarded the Certificate, did not respond further to the reminders and put them out of her mind.
Aside from communication about the Certificate, there was no other contact following dismissal between Ms Jones and Ms Dallinger.
Ms Jones considered her dismissal unfair.
In and around the second week after dismissal (the final week of January 2023) Ms Jones went onto the Commission web site. She read that unfair dismissal applications needed to be made within twenty-one days after a dismissal takes effect. She calculated that she needed to do so by Friday 10 February 2023. Ms Jones downloaded an unfair dismissal application. During that week she started filling out the application but did not finish doing so as she was waiting for the Employment Separation Certificate (which she had in fact received but was unaware of).
Not wanting to wait any longer for the Certificate, Ms Jones completed her application on Wednesday 8 February 2023. She saved it to her electronic device.
Ms Jones did not send the application that day (8 February) because she wanted to speak to a lawyer before submitting it. On 9 or 10 February 2023 Ms Jones spoke to a lawyer’s office but could not make an appointment at such short notice.
At about 4.00pm on 10 February 2023, before leaving for a work shift and aware that that day (10 February) was the twenty-first day after her dismissal took effect, Ms Jones decided to send the application. From her device she motioned to send it. Unbeknown to Ms Jones, she did not send it. It remained saved in her draft folder.
Ms Jones did not check whether the application had transferred to her ‘sent items’ nor did she check if an acknowledgement was received from the Commission. She was unaware that an email acknowledgement would be routinely sent to the sender of an emailed application.
Two days later, on the late evening of Sunday 12 February 2023, Ms Jones decided to check one aspect of her application. She went to her device. She noticed the application in her drafts folder and not in her sent folder. She was surprised by that. She immediately sent the application by email (at 10.39pm) under cover of an email as follows:[3]
“To whom it may concern,
Please find my unfair dismissal form attached to this email. I sent it through on Friday to meet the deadline but I've just seen it didn't send properly and has saved as a draft for some reason. I really hope you may take this into consideration.
Thanks,
Savannah Jones”.
On 14 February 2023 Ms Jones received an email from the Commission attaching a letter of acknowledgement.
On 14 February 2023 the Commission, by telephone call, attempted to draw Ms Jones’ attention to the fact that she had not completed an answer to item 2.1 of her application (Remedy). Ms Jones did not answer the call and as such, a Commission staff member left a voicemail message advising Ms Jones of this. The same day, the Commission sent a letter to Ms Jones informing her that her application had missing information.
On 27 February 2023 a Commission staff member attempted to telephone Ms Jones once more, having received no response to the 14 February correspondence. Ms Jones did not answer the call and the Commission staff member left a similar voicemail message.
On 2 March 2023 Ms Jones sent the Commission the completed item 2.1.[4]
On 3 March 2023 a Commission officer advised the parties that the application was out of time, and requested an explanation by 8 March 2023 of the exceptional circumstances relied upon by Ms Jones.
The 3 March 2023 was the day Café Twenty Eight was first notified that an application had been made.
Ms Jones provided her explanation by email on 8 March 2023:[5]
“To whom it may concern,
I am writing to give reason for my unfair dismissal form, regarding my unfair dismissal by Carol Dallinger at Cafe Thirty Three, having been submitted 2 days past the deadline of 21 days.
As briefly explained in my initial email containing the unfair dismissal application, and as I will now explain in further detail, the reason for the late submission was due to the fact that unbeknownst to me at the time, a mistake had somehow occurred and instead of properly sending through, the email saved as a draft in my draft folder. I discovered this as 2 days later I went into my 'sent' folder to open my (believed to be) sent email containing the application (to read over something I had written in it) to discover it was not there. This prompted me to immediately look into why the email was not in my sent folder, eventually leading to my discovery that it was in my drafts folder- fully completed but not sent. I then re-sent the draft straight away and provided a brief explanation for the delay, and this time checked to be sure it had indeed sent through properly this time. I am unsure why this had initially occurred or whether it was a technical error caused by myself or the device/technology/strength and quality of phone and data reception at the time. Upon receiving this email I’ve checked to try find evidence in my email account that this was saved as a draft, however it appears once I send the email it transfers (not copies it) to the sent folder so the draft no longer schists in the drafts folder.
Unfortunately, now that I have sent it through, this means that it’s no longer contained in my draft folder, only in sent. In hindsight I now realise I should have taken a screenshot of the email saved as a draft so I could provide evidence, I’m hoping that you will give me a chance instead of potentially losing my opportunity to take this serious matter further. I would also like to discuss Carol bullying and being verbally abusive toward staff and intimidating, plus other illegal things she did at the cafe.
Thanks for your time
Savannah Jones”.
By response dated 9 March 2023 the employer opposed the application generally including opposing an extension of time. The employer’s submission is that the circumstances for the delay were caused by Ms Jones alone and are not exceptional.
Consideration
Section 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(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.”
The application can only proceed if the applicant can establish that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[6]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[7] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[8]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[9]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[10]
It is not in dispute that the application is two days out of time.
I now consider each of the factors in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation.[11] The absence of an explanation for any part of the delay will usually weigh against an applicant. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[12]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[13]
The period of delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for delay is acceptable or credible.[14]
The reason for the delay advanced by Ms Jones is that the attempted sending of her application on 10 February 2023 failed, resulting in her application remaining in her draft folder rather than having been sent.
This was the explanation provided by Ms Jones in her emails to the Commission of 12 February and 8 March 2023. Her evidence at the hearing remained consistent with this explanation.
To her credit, although Ms Jones indicated in her evidence that occasionally problems with internet coverage arise in the Lockyer Valley (including when she first tried to send the completed text of item 2.1), she accepted that there was no internet coverage problem on 10 February 2023 when she intended to send her application.
Accordingly, I find that whilst Ms Jones intended to send her application on 10 February 2023 and thought she had done so via her mobile device, she failed to do so by error on her part. That error was a lack of attention to the process of sending the application to the Commission’s electronic address.
The error was not the result of system error or conduct by any persons other than Ms Jones.
Is this an acceptable reason for the delay pointing to an exceptional circumstance?
I think not.
Whilst human error in using electronic devices is understandable it is not uncommon.
There is no general rule that a dismissed employee making a mistake, even one unintended, results in the mistake being an acceptable reason for delay. Equally, the circumstances of mistaken conduct or a mistaken belief are relevant to determining whether an acceptable reason for delay exists or is capable of rendering the circumstances exceptional.[15]
The surrounding circumstances do not assist Ms Jones. On 10 February 2023 Ms Jones knew she was sending an important communication initiating legal proceedings that were subject to a time deadline yet Ms Jones was not careful enough in the act of sending or checking that her communication had in fact been sent or received.
There was nothing about the mobile device being used or the circumstances that existed on 10 February 2023 that relevantly contributed to the error. Other persons were not sending the electronic communication on behalf of Ms Jones. She was using a familiar device (hers), she did so at a time of her choosing on that day, was at a familiar location (her car parked outside her home) and had called up a document (the application) she had completed and was familiar with.
I take into account that Ms Jones acted immediately two days later on 12 February 2023 when she realised that the application had not been sent, and give this some weight. However, whilst this diminishes potential prejudice (if any) to the employer and confirms as plausible the reason for the delay, it does not re-characterise the reason as acceptable. It remains a mistake borne of inadvertence, albeit a mistake unintended.
Having not tried to send the application until the late afternoon of the last day for filing, Ms Jones took a risk. She gave herself little or no leeway for error. As observed in Shaw v Australia and New Zealand Banking Group Limited:[16]
“…a decision to wait to do something until the last possible moment is fraught with risk. Mr Shaw had the whole of the 21-day period during which he could have made the application. He chose to wait until the last day. Mr Shaw elected to take the risk and, in doing so, he was caught out by his earlier miscalculation.”
Whilst I take into account that Ms Jones was wanting to speak to a lawyer and tried to do so in the two days prior, she provided no explanation for not trying to do so earlier. Further, to the extent her explanation for not doing so or completing her application earlier than 8 February was that she was awaiting the Certificate, that was in fact in her device albeit unseen by her.
The explanation for the delay does not weigh in favour of a finding of exceptional circumstances.
Awareness of the dismissal taking effect (s 394(3)(b))
Ms Jones was aware that she was dismissed with immediate effect on 20 January 2023.
Ms Jones was also aware of the reason.
In the circumstances, this factor does not weigh in favour of a finding of exceptional circumstances.
Action taken to dispute dismissal (s 394(3)(c))
Ms Jones genuinely felt wronged by her dismissal from the time she was dismissed.
Ms Jones told Ms Dallinger that she disagreed with the decision on the day of dismissal. Hence, the employer was on notice and ought not have been surprised that Ms Jones subsequently investigated her rights. Whilst the legal proceedings commenced are consistent with Ms Jones’ stated views at the time, the employer was on notice that the dismissal was disagreed with, not that it would necessarily be litigated.
Whilst Ms Jones was waiting for the Certificate in the period prior to making her claim, this does not point to exceptional circumstances. Aside from the fact that the Certificate had in fact been sent, Ms Jones managed to populate the application on 8 February without reference to the Certificate. The absence of the Certificate was not the reason for the late filing.
This is a neutral consideration.
Prejudice to the employer (s 394(3)(d))
Cafe Thirty Three would incur time and effort in responding to an unfair dismissal claim, and as a small business operator Ms Dallinger’s time has value to the business.
That said, the prejudice to the employer is not unique.
However, the absence of prejudice would not itself be a reason to grant an extension.[17]
In the circumstances, this is a neutral consideration.
Merits (s 394(3)(e))
The merits of Ms Jones’s unfair dismissal application appear to concern a dispute over performance. It is apparent from the application and the response that this question concerns competing claim and counterclaim.
Not having heard evidence on these issues, it is not safe to express even a provisional view on this question.
In this matter, this is a neutral consideration.
Fairness between persons in similar position (s 394(f))
This issue does not arise in this matter.
Conclusion
The reason for delay does not weigh in favour of a conclusion of exceptional circumstances. It was a delay caused by an unintended mistake. That mistake was the product of inadvertence by the applicant herself.
There is no other factor that materially weighs in favour of a finding of exceptional circumstances.
I do not find that the circumstances giving rise to the late lodgement were exceptional.
Disposition
There being no exceptional circumstances, the time for lodgement of application U2023/1103 cannot be extended.
Being out of time, the application must be dismissed.
An order[18] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
Ms S Jones, on her own behalf
Ms C Dallinger, of and on behalf of The Trustee for Cafe Thirty Three Trust
Hearing details:
2023
Adelaide (by video)
23 March
[1] R1
[2] A4
[3] A1
[4] A2
[5] A3
[6] Smith v Canning Division of General Practice[2009] AIRC 959
[7] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[8] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[9] [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[10] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[11] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[12] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, at [39]-[40]
[13] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[14] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[15] Mihajlovic v Lifeline Macarthur[2013] FWC 9804; Ayub v NSW Trains[2016] FWCFB 5500; Foyster v Bunnings Group Limited [2017] FWCFB 3923
[16] [2014] FWC 3903 at [28]
[17] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[18] PR760634
Printed by authority of the Commonwealth Government Printer
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