Taneisha Cuthbert v PRD Nationwide Werribee Real Estate

[2014] FWC 675

[2014] FWC 675

The attached document replaces the document previously issued with the above code on 14 February 2014.

This corrects a typographical error in paragraph [1] which referred to 9 October 2014 rather than 9 October 2013, as it should have read.

Cassidy Vines

Associate to Commissioner Gregory

Dated 4 April 2014

[2014] FWC 675

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Taneisha Cuthbert
v
PRD Nationwide Werribee Real Estate
(U2013/15487)

COMMISSIONER GREGORY MELBOURNE, 14 FEBRUARY 2014

Application for Extension of Time.

Introduction

[1] Ms Taneisha Cuthbert was dismissed from her employment with PRD Nationwide Werribee Real Estate (PRD) on 9 October 2013. She had been employed since July 2011 as a receptionist/sales support representative and, more recently, as a letting clerk. She subsequently proceeded to prepare and lodge an unfair dismissal application. However, it was received by the Fair Work Commission on 1 November 2013, two days after the expiry of the 21 day period set down in s.394 of the Fair Work Act 2009 (Cth) (the Act).

The Issue to Be Determined

[2] Section 394(3) of the Act enables a further period for an application to be made if the Commission is satisfied there are “exceptional circumstances” taking into account the various matters specified in the sub section. Do those “exceptional circumstances” exist in this case to justify Ms Cuthbert being granted an extended period in which to lodge her application?

The Evidence and Submissions

[3] Ms Cuthbert was dismissed on 9 October 2014. She said she called the Commission two days later to find out more about the options available to her. She said:

“I explained to the representative what had happened and gave an outline of events from the meeting where I was terminated.” 1

She continued to indicate:

“After being informed I was able to apply for Unfair Dismissal I started on my case knowing I had 21 days to lodge a claim commencing on the date after termination.” 2

[4] Ms Cuthbert said her parents were overseas at the time of her dismissal and she waited to speak with them on their return before doing anything further. She particularly wanted to speak with her mother because she also worked in the real estate industry in the same local area. She was both concerned to make sure any action she took did not have ramifications for her mother, and wanted to discuss with her how best to respond to her dismissal. Her mother, Ms Marita Cuthbert, returned to Australia on 12 October and it was then agreed she would speak with Mr Rohan Smith, the Principal at PRD who she knew, to see whether the matter could be resolved through those discussions. However, Mr Smith was apparently not prepared to discuss the matter and a series of emails confirmed those attempts to resolve the matter were at an end by 15 October. Ms Cuthbert also stated she was advised by staff at the Commission to consider “holding off” lodging any unfair dismissal application pending the outcome of those negotiations. 3 However, once that process concluded she proceeded to complete the necessary documentation and indicated “As per my application Form F2 which I have attached marked (C) I did have my documentation and statement completed on the 16 of October 2013.”4 She did so, despite having job interviews on 11 and 15 October which led to her commencing employment in a new role on 21 October.

[5] Ms. Cuthbert said she later had further discussions with the Commission about lodging her unfair dismissal claim and was advised it would need to be forwarded by post if she wanted to pay the filing fee by credit card. She also stated she was told to use an express post envelope if forwarding the application by mail.

[6] She then posted the application on 28 October, just before 5p.m. She said she was concerned to meet the mail collection deadline that day and posted the express post envelope in a red Australia Post mailbox, rather than trying to locate a yellow mailbox, where next day delivery is guaranteed. She submits Australia Post subsequently advised the envelope was delivered on 31 October, although it is marked as having been received by the Commission on 1 November.

[7] Ms Cuthbert submits, in summary, these various circumstances contributed to the delay in lodging –

• her desire to avoid any potential repercussions for her mother;



• the subsequent attempt to resolve the matter amicably;



• the recommendations by “the operator” at the Commission to give her former employer a chance to respond before lodging an application, and



• the “earnest” but ultimately unsuccessful attempt to file the application within time.

[8] She submits these are circumstances that in combination are “out of the ordinary course, or unusual, or special,” and “uncommon” as found in Nulty v. Blue Star Group Pty Ltd 5 (Blue Star Group) and constitute “exceptional circumstances” justifying an extension of time.

[9] Ms Cuthbert submits the delay has not caused any prejudice to her former employer. She also submits her claim has merit. She points to the lack of procedural fairness and states when called into the meeting on 9 October she was given no prior indication it was to involve a discussion about her performance, or result in her termination. She also submits she was not offered the opportunity of having a support person present, or given any real opportunity to respond to the matters put to her. She also takes issue with the reasons given for her termination, and said she was given no indication she was about to be dismissed. For example, she had just previously been encouraged to purchase a new company uniform at her own expense.

[10] The submissions on behalf of PRD deal specifically with the matters in section 394(3) the Commission is required to have regard to. It submits, firstly, Ms Cuthbert has not provided an acceptable reason for the delay in lodging her application. It notes, in particular, she did not attempt to lodge her application by email and, despite any advice she claims to have received from the Commission about sending her application by post, points to the information in the Commission’s Unfair Dismissal Guide about the option of “email or e-filing.” It also submits Ms Cuthbert has generally used email to communicate in regard to her application.

[11] PRD states, secondly, Ms Cuthbert was aware of her dismissal immediately after it took effect. In terms of any action taken by her to dispute the dismissal it notes her mother contacted the principal at PRD to request a meeting, but this did not delay lodging the application. It submits there was nothing exceptional in the attempt to discuss the termination in this way. It also notes Ms Cuthbert failed to attend the telephone conciliation listed before a Commission Conciliator on 9 December 2013.

[12] PRD does not claim any substantial prejudice by the delay in lodging the application, but submits this is not a sufficient basis to grant an extension of time. In terms of the merits of the application it submits the Commission is not in a position to make findings on contested matters, having not heard detailed evidence as to the respective merits of the matter. However, it submits Ms Cuthbert was dismissed from her employment on the basis of unsatisfactory performance following a series of warnings and discussions about these issues. It makes no submission in relation to employees in a similar position.

[13] PRD submits, in conclusion, the Commission should adopt the usual approach in dealing with “out of time” applications and follow the principles established in Blue Star Group. It also submits Ms Cuthbert has not disclosed any single factor, or combination of factors, that would satisfy the “exceptional circumstances” test, regardless of the fact the application was only lodged two days out of time.

Consideration

[14] Both parties made reference to the decision in Nulty v. Blue Star Group Pty Ltd and it is often cited in support of what is required to find “exceptional circumstances” exist to justify an extension of time being granted in which to make an unfair dismissal application. The Full Bench stated at paragraph [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.” 6

[15] Both parties also made reference to the decision in Ho v Professional Services Review Committee No 295 7 which, like the decision in Blue Star Group, held that in considering whether exceptional circumstances exist the Commission may have regard to a single circumstance or a combination of factors. Section 394(3) also requires consideration of each of the matters set out in (a) to (f) of that sub section. I now turn to deal with the relevant circumstances and the submissions of the parties in this matter by reference to those considerations and the authorities referred to.

(a) The reason for the delay

[16] Ms Cuthbert’s evidence is clear in terms of her understanding about the 21 day time period for lodging an unfair dismissal application. Her evidence indicates she was informed about this requirement two days after her termination in discussions with the Commission. She then cites various reasons for the subsequent delay in lodging.

• She wanted to discuss the circumstances with her mother who was overseas at the time of her termination and did not return to Australia until 12 October.



• The subsequent attempt to resolve the matter in direct discussions between her mother and her former employer which concluded, unsuccessfully, on 15 October.



• The advice she was apparently given to hold off on lodging her application until such time as this process concluded.



• She was involved in job interviews on 11 and 15 October which led to her subsequent employment in a new position from the 20 October.



• She was apparently advised by someone at the Commission to post her application if she wished to pay the filing fee by credit card.



• She posted the application on 28 October but it was not received by the Commission until 1 November 2013.

[17] PRD submits in response none of these circumstances constitute “exceptional circumstances” in terms of the decision in Blue Star Group.

[18] I am also not satisfied these circumstances in isolation or when taken together can be considered to be “exceptional.” Ms Cuthbert’s desire to discuss the circumstances of her dismissal with her mother is both understandable and sensible given her mother’s involvement in the same industry and in the same local area. Subsequent attempts by her mother to resolve the matter directly followed, but were unsuccessful. Ms Cuthbert also showed initiative in attending job interviews on 11 and 15 October. However, these circumstances all played out in the week immediately following her termination. Her evidence indicates by 16 October, a week after she had been dismissed, she had resolved to pursue her unfair dismissal application and proceeded to complete the necessary documentation. Her Form F2 that was finally lodged is, in fact, dated 16 October 2013. However, for reasons that are not entirely clear she then waited 12 days before posting the application just prior to close of business on 28 October 2013.

[19] She also submits her decision to post the application, rather than lodge it by email, was influenced by discussions she had with staff at the Commission related to her wanting to pay the filing fee by credit card. I have no reason to doubt she formed this view. However, I am surprised it would be suggested by a staff member at the Commission, particularly given the information contained in the Commission’s unfair dismissal guide about email lodgement. As I indicated during the course of the proceedings the Commission staff are, in my experience, very familiar with and aware of the importance of any application being lodged within required timeframes, and I consider it most unlikely any staff member would provide advice or information potentially in conflict with compliance with these requirements.

[20] In terms of issues to do with posting the application I noted that on reviewing the file prior to the hearing a sticker had been attached to the express post envelope containing the application received by the Commission. It stated:

“Incorrectly posted in red street posting box. Guarantee is void. Delivery may be delayed. Express Post should be posted in special gold (yellow) street posting boxes.”

[21] I subsequently forwarded the following correspondence to both parties on the day prior to the hearing:

“Jurisdiction hearing – 24 January, 2014

I refer to the above and make contact now to advise about a matter that has come to my attention. I do so, in particular, to provide sufficient time to both parties to consider this matter, rather than simply raising it with short notice during the proceedings.

In reviewing the file in anticipation of the jurisdiction hearing tomorrow I have noted that the express mail envelope retained on the Commission’ s file and used by the Applicant to lodge her application has a sticker attached.

I have attached a scanned copy of both sides of that envelope.

I consider it appropriate to provide this information to you at this time, firstly, because presumably neither party is aware of this situation and, secondly, you may wish to make submissions in the proceedings tomorrow about its relevance or otherwise.” 8

[22] Ms Cuthbert’s submissions confirm that the express mail envelope was not posted in the correct mail box, but posted instead in the normal red mail box. She said she did this to avoid missing the deadline for collection that evening. Whilst she may well have attempted to avoid any unnecessary delay in lodging, her action in not posting in the appropriate letterbox appears instead to have contributed to the delay, given the application was not received by the Commission until 1 November 2013, two days after the expiry of the 21 day limit. There was also a suggestion it was received on 31 October, however, I also indicated to the parties during the course of the proceedings that I am advised there is only one mail delivery to the Commission on any one day and nothing in the Commission’s records indicated anything other than the fact the application was delivered and received on 1 November, 2013.

[23] Again, I am not satisfied any of the issues to do with posting the application can be considered “exceptional.” If Ms Cuthbert had acted to post the application shortly after she completed it on 16 October these issues would not have arisen in the first place. The fact she then, 12 days later, posted the express mail envelope in the wrong mail box undoubtedly again contributed to the subsequent delay in it being received. While she may have made a genuine attempt to file on time her decision to send the application by post; the delay in mailing until two days before the expiry of the 21 day period; and her decision to place the envelope in the wrong mail box, all contributed to the application being lodged out of time. They represent a failure to act in a timely way and a misjudgement which together, provide explanation for the application not being received within the 21 day time period. However, again I am not satisfied they can be considered to be “exceptional circumstances” in that they are “...out of the ordinary course, or unusual, or special or uncommon...” To the contrary they are circumstances which are, unfortunately, regularly and often encountered.

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

[24] The evidence indicates Ms Cuthbert was aware of her dismissal immediately after it had taken effect. This factor is not at issue.

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

[25] Ms Cuthbert did take action to dispute the dismissal in the days after it occurred. She was in contact with the Commission, two days later, to enquire about the processes for lodging an unfair dismissal application. She was told then about the 21 day period for lodging an application. Her mother returned to Australia on 12 October, three days after her daughter’s dismissal, and it was agreed she would approach PRD to see whether there was any possibility of the matter being resolved on some mutually agreed basis. Ms Cuthbert subsequently proceeded to conclude the necessary documentation in support of her application.

(d) Prejudice to the employer

[26] The application was only lodged two days out of time and while PRD submits it has been required to prepare and respond to both the telephone conciliation process and Ms Cuthbert’s out of time application it does not make submissions about any substantial prejudice inflicted on it.

(e) The merits of the application

[27] PRD submits Ms Cuthbert was dismissed on performance grounds following previous warnings and discussions with her about performance related issues. Ms Cuthbert submits she was called into the meeting on 9 October with no prior knowledge of what it was to be about, with no opportunity offered for a support person to be present, and with little opportunity provided to respond to the matters that were purportedly the reason for her dismissal. She also submits her former employer’s actions and behaviour in the period leading up to her termination gave no indication she was about to be dismissed and, in fact, suggested she had an ongoing role. It does appear some of the “procedural fairness” requirements normally associated with a process of discussion and the subsequent termination of an employee, such as the opportunity to have a support person present, and the ability to respond to the reasons for possible termination, are lacking in what occurred in this case.

[28] However, in the absence of detailed evidence going to merit I am not in a position to make conclusive findings of fact about what are clearly contested issues. I also note the relevance of the issue of “merit” when determining an application for an extension of time, was considered by a Full Bench of the Australian Industrial Relations Commission in Kyvelos v. Champion Socks Pty Ltd 9. Without going to that decision the Full Bench acknowledged detailed evidence about the merits of a matter is rarely called in an “out of time” application, and there are “sound reasons” why the Commission should not get involved in a detailed consideration of the substantive case in such matters. As indicated, I have not formed a concluded view about the respective merits of the matter and, based on the decision of the Full Bench, I am satisfied it is unnecessary to do so at this point. I am accordingly satisfied the respective merits of the application are a neutral consideration in terms of whether I should exercise the discretion available in s.394(3).

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

[29] This consideration is of limited relevance in the present matter. Ms Cuthbert was the only person whose employment was terminated at the time.

Conclusion

[30] Ms Cuthbert had the opportunity and an understanding of the processes involved to enable her to lodge an unfair dismissal application within the 21 day period following her dismissal. However, a failure to act in a timely way and the failure to post the express mail envelope correctly meant the application was not received within this period. Having considered the submissions and evidence, and the matters in s.394(3) I am required to have regard to, I am not satisfied those reasons can be said to constitute “exceptional circumstances” such as to warrant an extension of time in which to lodge the application. The application is dismissed.

COMMISSIONER

Appearances:

Dru Marsh of Lander and Rodgers on behalf of the Applicant.

Sophie McCowan of Service Industry Advisory Group on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

24 January.

 1   Statement of Taneisha Cuthbert submitted 23 December 2013 at paragraph 3(i)

 2   Ibid at paragraph 3(ii)

 3   Outline of Submissions for Jurisdictional Hearing submitted by the Applicant on 23 January 2014 at paragraph 3(e)

 4   Statement of Taneisha Cuthbert submitted 23 December 2013 at paragraph 7(ii)

 5   [2011] FWAFB 975

 6   Ibid at [11]

 7 [2007] FCA 388

 8   Commissioner Gregory to Mark Diserio and Sophie McCowan by email on Thursday 23 January 2014

 9   Dec 1294/00 M Print T2421

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