Shobna Bali v NSW Electricity Networks Operations Pty Ltd T/A TransGrid

[2019] FWC 7247

[2019] FWC 7247

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Shobna Bali
v
NSW Electricity Networks Operations Pty Ltd T/A TransGrid
(U2019/6055)

COMMISSIONER CAMBRIDGE SYDNEY, 23 OCTOBER 2019

Unfair dismissal - jurisdictional objection - application made 29 minutes out of time - exceptional circumstances identified - extension of time granted.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on Saturday, 1 June 2019, at 29 minutes after midnight. The application was made by Shobna Bali (the applicant) and the respondent employer is NSW Electricity Networks Operations Pty Ltd T/A TransGrid (TransGrid or the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 10 May 2019. Consequently, the application was not made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The unfair dismissal application document (Form F2) indicated that the application had been made within 21 calendar days of the date that the dismissal took effect. However, the employer’s response to the application (Form F3) correctly identified that the application was made out of time. Subsequently, the applicant has accepted and acknowledged that the application was made “a half an hour late.” In due course, TransGrid has requested that its jurisdictional objection involving the application being filed late be determined before any consideration of the merits of the application was undertaken.

[4] Notwithstanding the jurisdictional objection identified by TransGrid, the Parties participated in conciliation of the application on 8 July 2019, at which time a settlement agreement appeared to have been reached. However, on 12 July 2019, the applicant informed the Conciliator that she did not wish to proceed with the settlement, and she requested that the matter proceed to the next stage of arbitration.

[5] On 30 July 2019, the Fair Work Commission (the Commission) wrote to the applicant advising inter alia, the application had been made one day beyond the 21 day timeframe, and therefore the applicant needed to establish that there were exceptional circumstances to permit the matter to proceed. This communication further advised that the applicant was to provide written material in support of any assertion that exceptional circumstances existed and warranted the granting of an extension of time to file the application.

[6] On 16 August 2019, the applicant provided written submissions in support of obtaining an extension of time which attached copies of three medical certificates. Shortly after the provision of this material the contested jurisdictional objection to the application was allocated to the Commission as currently constituted for determination.

[7] On 23 August 2019, the Commission convened a Pre-Hearing Conference during which Directions were made for the Parties to file and serve all material upon which the question of any extension of time would be determined. The Commission also issued a Direction for the applicant to inform TransGrid of the concerns that she had with the proposed documentation that sought to reflect the earlier settlement of the matter. On 29 August 2019, the applicant advised the Commission and TransGrid that she did not wish to pursue settlement of the matter.

[8] In due course, the Parties filed their respective documentary materials, and each indicated that they were content for the jurisdictional objection to be determined upon the documentary material that had been filed, and without any requirement for a Hearing.

Relevant Factual Background

[9] The applicant had worked for the employer for almost nine years. The applicant was employed in a position described as a Service Delivery Manager. The employer is the manager and operator of a high voltage electricity transmission network in New South Wales and the Australian Capital Territory.

[10] In May 2018, TransGrid commenced a disciplinary process involving the identification of alleged unacceptable workplace practices on the part of the applicant. The applicant was invited to respond to certain allegations that had been identified by TransGrid. The allegations of unacceptable workplace practices were under investigation when on 30 May 2018, the applicant commenced a period of sick leave and then she was subsequently on leave without pay from 21 June 2018.

[11] On 27 June 2018, the applicant initiated a workers compensation claim which was subsequently declined. The applicant continued on an extended period of leave without pay, and although there was some unsuccessful attempt to have her return to modified duties at a different workplace location, on 10 May 2019, she was advised that her employment was terminated effective from that date.

The Applicant’s Case in Support of an Extension of Time

[12] The submissions made by the applicant stressed that her application was lodged nearly half an hour out of time and that this was an extremely short period of time which she did not think would make much difference because the 1^st of June was a Saturday and both the Commission and TransGrid were closed for business. The applicant submitted that the application going a half an hour overtime after midnight on Friday, would not delay the processing of the application.

[13] The applicant further submitted that the reason that her application was a half an hour late was because she was applying multiple additional checks to the application because she wanted to ensure that it was correct, and she did not have any assistance from any legal representation. Further, the applicant provided three medical certificates that covered the 21 day period following her dismissal and these medical certificates confirmed that the applicant was suffering from severe stress and anxiety which made it extremely difficult for her to put the application together.

[14] The applicant further submitted that she believed that her case should be heard because she had not been afforded procedural fairness regarding the dismissal. The applicant stated that she had not been given any prior warning or notice before she was dismissed.

[15] The applicant also made submissions in response to the material provided by TransGrid. The applicant’s response submissions rejected the proposition as was advanced by TransGrid, that the reason for the delay in making the application was not related to the applicant’s medical condition. The applicant submitted that her medical condition contributed to the difficulty that she had in putting together the application. Further, the applicant submitted that her current health situation was a direct result of an injury suffered in the workplace.

[16] In summary, the submissions made by the applicant asserted that the extension of time should be granted because the application was only a half an hour out of time. The applicant submitted that she did not believe that any delay to the processing of the application would have been created because it was made very early on a Saturday morning. Further, the applicant stressed that the reason for the delay involved her stress and anxiety which caused her to make multiple additional checks to the application before it was submitted. The applicant submitted that despite her length of service and loyal hard work, TransGrid had time and time again, treated her in a harsh, unjust and unreasonable manner.

The Employer's Case in Opposition to an Extension of Time

[17] TransGrid made submissions that were constructed by reference to the various paragraphs contained in subsection 394 (3) of the Act and which required the Commission to be satisfied that exceptional circumstances had been established in order to grant any extension of time.

[18] TransGrid submitted that there was no evidence to support the applicant’s contention that her medical condition was a factor in not meeting the timeframe for lodgement of the application. TransGrid submitted that the applicant’s own submissions indicated that the cause of her delay was not related to her medical condition. In this regard, TransGrid submitted that the applicant had not identified a valid reason for the delay. TransGrid submitted that there was no basis upon which proper reason was established for the applicant “applying multiple additional checks” which were said to cause it to become a half an hour late.

[19] TransGrid submitted that the applicant was advised of her dismissal on the day that the dismissal took effect. Consequently, there was no delay in the applicant becoming aware of the dismissal.

[20] The submissions made by TransGrid noted that the applicant had not taken any other action to dispute her dismissal other than making the late unfair dismissal application to the Commission.

[21] TransGrid conceded that there would be no prejudice to it if the Commission granted an extension of time.

[22] The submissions made by TransGrid rejected the applicant’s assertion that she had been treated without a fair and proper process or in any other manner that could be said to be harsh, unjust or unreasonable. In respect to the merits of the application, TransGrid submitted that after a prolonged absence from work since 30 May 2018, no medical evidence had been provided that indicated that the applicant was now fit for work and the applicant remained unfit for work. Consequently, according to the submissions of TransGrid, this meant that the applicant’s application if it was allowed to proceed, would be bound to fail.

[23] In summary, the submissions made by TransGrid asserted that having regard to the factors contained in subsection 394 (3) of the Act, the Commission should not be satisfied that there were exceptional circumstances that would warrant an extension of time to bring the application. TransGrid submitted that the Commission should reject the applicant’s request for an extension of time, and that its jurisdictional objection should be upheld.

Consideration

[24] An application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, subsections 394 (2) (b) and 394 (3) of the Act allow for an extension of the 21 day time period if exceptional circumstances are established.

[25] In this instance, the application was filed at 29 minutes after midnight on 1 June 2019, which was the 22^nd day after the day on which the dismissal took effect. Therefore, the application was not made within the 21 day time period established by subsection 394 (2) (a) of the Act. The application was made one day after the expiry of the 21 day time limit.

[26] Subsection 394 (3) of the Act provides the Commission with a discretion to extend the time limit of 21 days as fixed by subsection 394 (2) (a). Subsection 394 (3) is in the following terms:

“(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.”

[27] As can be seen from subsection 394 (3), the Commission must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which the Commission is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a statutorily prescribed time limit.

[28] Importantly, the onus rests with an applicant to convince the Commission to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394 (3) of the Act, it seems to me that the particular length of any delay should logically be connected to the onus on any applicant seeking the exercise of the discretion to extend time. It would be logical for the length of any delay to amplify the onus on an applicant in broadly exponential terms, such that the longer the delay is, the greater the difficulty is in establishing proper basis for the exercise of the discretion.

[29] Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years must be assessed differently to a delay of 21 days where the time limit was 21 days. Consequently, I believe that the length of the delay should be a factor taken into consideration when exercising the discretion to extend the time period prescribed by subsection 394 (2) (a) of the Act.

[30] In this case the delay was 1 day relevant to the 21 day time limit. Consequently, the delay has represented the shortest possible length of any delay.

[31] In addition, it is relevant to note that because applications can be filed electronically online and at any time, the practical consequences arising from the delay in this instance would be unidentifiable. Indeed, if the application had been made a half an hour earlier it would have been within time, but no different in any practical impact or consequence. The electronic online lodgement facility has created the somewhat ironic circumstance where lodgements that are made after close of business but before midnight are made within time, but an application made in that time period would generally provide the same practical outcome as a late application made the following day.

Subsection 394 (3) (a) - The Reason for the Delay

[32] In this instance the applicant asserted that certain mental health issues contributed as reason for her delay in lodging the application after rather than before midnight on 31 May 2019. There was medical evidence provided which established that the applicant was being treated for ongoing anxiety/depression and insomnia.

[33] As was submitted by TransGrid, the evidence of the applicant’s medical condition did not provide any clear explanation as to why she would not have lodged the application at some time before the late evening of the last day of the 21 day period. However, on balance, the applicant’s medical condition did appear to provide an explanation for her failure to complete the application in a timely manner so that it would be submitted before rather than after midnight. Consequently, the applicant’s medical condition represented a reason for the slight delay which caused the application to be out of time, but it must be described as a reason that, of itself, may not be strongly persuasive so as to provide sound basis upon which to establish exceptional circumstances.

Subsection 394 (3) (b) - Whether the Person First Became Aware of the Dismissal After it had Taken Effect

[34] The applicant first became aware of the dismissal at the time at which she was dismissed, 10 May 2019. Consequently, this factor does not provide any assistance to the applicant.

Subsection 394 (3) (c) - any action taken by the person to dispute the dismissal

[35] The applicant did not take any action to directly dispute the dismissal, other than by way of the unfair dismissal application. Therefore, I consider that this factor does not assist the applicant.

Subsection 394 (3) (d) - prejudice to the employer (including prejudice caused by the delay)

[36] The employer acknowledged that there was no prejudice that could be identified in this instance. Consequently, this factor could be considered to provide assistance to the applicant.

Subsection 394 (3) (e) - the merits of the application

[37] This factor, described in the Act as “the merits of the application” is directed towards some elementary assessment of the potential prospects of the matter at Hearing if the extension of time was granted. The Parties made quite contrasted submissions in this regard. TransGrid submitted that the application was bound to fail because the applicant remains unfit for work.

[38] It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. However, the evidence does not support the assertion that the unfair dismissal claim would be bound to fail. The evidence of the applicant’s medical condition strongly suggested that the applicant may not be able to obtain any monetary remedy if successful with her unfair dismissal application. However, the potential of an absence of monetary remedy cannot be construed to establish some basis upon which the claim could not succeed. Indeed, on any objective and balanced assessment the unfair dismissal claim presents as an arguable case. Consequently, the logical consideration of this factor would provide support for the granting of an extension of time.

Subsection 394 (3) (f) - fairness as between the person and other persons in a similar position

[39] In the absence of any evidence about the treatment of other employees of the employer who may have been in a similar position to the applicant I have decided to treat this factor as being neutral.

Exceptional Circumstances

[40] Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case ofJohnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery  1. The consideration therein establishes a caution against adopting an overly stringent interpretationofwhat constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.

[41] Further assistance in providing an understanding of exceptional circumstances in the context of a legislative time limit can be obtained from the Full Bench Decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd  2 and the following paragraph from that Decision is particularly helpful:

“[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.” 3

[42] In this instance the exercise of the discretion to extend time has been required in respect of a delay of one day, or more precisely, 29 minutes. In this context the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been given careful consideration.

[43] The reason for the delay involved the applicant making additional checks to the information that she was providing in the application before she submitted the Form F2 document online. It appeared that the applicant was conscious of the 21 day time limit, and she had the intention of lodging online at some time before midnight on 31 May 2019.

[44] However, the applicant’s mental health issues appeared to have impacted upon her capacity to fulfil her intention to lodge before midnight. Having had the benefit of seeing and engaging with the applicant in person during the Pre-Hearing Conference, I have no reason to doubt that the applicant; (a) had the conscious intention to lodge the application within time on 31 May; and (b); her state of mental health caused delay with the lodgement at the time that she was preparing to lodge online, circa late evening 31 May; and (c); she held the genuine belief that the application would not be treated as being late because there was no identifiable practical impact of the application being lodged online 29 minutes after midnight on the 21^st day after dismissal.

[45] Although it seemed that the applicant’s health issues would not have prevented her from lodging the application at some earlier time, perhaps a day or two before the last day, she nevertheless appeared to decide, for some unknown reason, to utilise the full 21 day time period. This decision of the applicant may have been connected with her mental health issues. Consequently, this is an unusual circumstance, particularly when considered in the context that the electronic online lodgement process can create something of an anomaly for applications made in the time period from close of business until midnight, which are made in time, but those after midnight are out of time, yet there is generally no practical difference generated by the late application when compared to that made in time.

[46] The applicant first became aware of the dismissal at the time that it had taken effect, 10 May 2019, and she took no action to dispute the dismissal other than to lodge the claim for unfair dismissal remedy. These factors do not provide assistance to the applicant in respect to any finding of exceptional circumstances.

[47] There was no prejudice to TransGrid identified including prejudice caused by the delay. The absence of any prejudice has provided assistance to the applicant’s case in support of a finding that exceptional circumstances existed.

[48] The apparent merits of the application were identifiable. Although no concluded view could be formed, certain material that was attached to the Form F2 application document was suggestive of an arguable case. For instance, it appeared that the first formal written advice to the applicant that the employer was considering termination of employment was contained in the misconduct notice that advised of the dismissal on 10 May 2019. Further, the termination pay advice provided to the applicant indicated that she had “BOOKED LEAVE” until 20/05/19. Consequently, the apparent merits of the case provided assistance in establishing exceptional circumstances.

[49] The other factors under consideration were of neutral impact.

Conclusion

[50] All of the factors mentioned in subsection 394 (3) of the Act have been taken into account. These factors have been carefully evaluated and balanced so as to provide for a comprehensive conclusion to be drawn having regard for all of the relevant issues. Factors involving the reason for the delay, the merits of the application and the absence of any prejudice to the employer, have, in combination, operated to satisfy the Commission that there are exceptional circumstances involving the application that was filed beyond the 21 day time limit established by subsection 394 (2) of the Act.

[51] Therefore, on balance, I have determined that exceptional circumstances have been established and it would be just and equitable for the Commission to exercise the discretion to extend time. An Order [PR713591] made pursuant to subsection 394 (3) of the Act allowing a further period until 1 June 2019 for the application to be made will be issued in conjunction with this Decision.

[52] The matter will be listed for Mention and Directions proceedings at 10:00 am on 1 November 2019.

COMMISSIONER

Final written submissions:

Applicant: 16 August 2019 and 27 September 2019.

Employer: 13 September 2019.

Printed by authority of the Commonwealth Government Printer

<PR713527>

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

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