Thomas Kirkpatrick v Egg Marketing Australia Pty Ltd

[2017] FWC 6706

[2017] FWC 6706

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thomas Kirkpatrick
v
Egg Marketing Australia Pty Ltd
(U2017/11504)

COMMISSIONER LEE MELBOURNE, 15 DECEMBER 2017

Application for an unfair dismissal remedy - extension of time - time extended.

[1] This matter involves an application to the Fair Work Commission (the Commission) made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Mr Thomas Kirkpatrick (the Applicant) claims he was unfairly dismissed from his employment with Egg Marketing Australia Pty Ltd (the Respondent).

[2] There is no dispute between the parties as to the date the Applicant’s employment ended. The Applicant resigned from his employment on 5 October 2017. There is a dispute as to whether there was a termination at the initiative of the employer. The Applicant submits that he was forced to resign in order to access his long service leave. The Respondent disputes this. To be clear, this decision makes no determination as to whether there was in fact a termination at the initiative of the employer.

[3] The application was made on 27 October 2017. As the employment relationship ended on 5 October 2017, the application should have been lodged no later than the 26 October 2017 and was therefore made one day outside the statutory time limit.

[4] The matter was allocated to me for jurisdictional determination on the question of whether to allow a further period of time for lodging the application pursuant to s.394(3) of the Act.

[5] The matter was listed for Jurisdiction (Extension of Time) Conference/Hearing on 15 December 2017 in Melbourne. On 27 November 2017 the Respondent’s representative advised the Commission that it no longer wished to “proceed with or press it’s ‘out of time’ application”. On 12 December 2017 my chambers wrote to the Respondent’s representative noting its correspondence of 27 November 2017 and that it had not filed any materials in accordance with the directions. The Respondent was asked to advise whether it agreed to the Commission making a decision based on the material provided by the Applicant and the witness statements filed 4 December 2017, without the need for a hearing. On 13 December 2017 the Respondent’s representative advised that the Respondent agreed on the basis that the Applicant consented to same. The Applicant’s representative advised that it consented to the matter being determined on the materials currently before the Commission, without the need for a hearing.

[6] I decided to determine the matter ‘on the papers’ at the consent of the parties on the basis that the factual matters which are critical to my consideration of whether to grant the Applicant an extension of time are not in dispute. Subsequently, the Jurisdiction (Extension of Time) Conference/Hearing on 15 December 2017 was vacated.

[7] Section 394 of the Act provides as follows:

“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.”

[8] As noted above, the application was not lodged within the statutory period. Therefore the matter can only proceed if a further period under section 394(3) of the Act is allowed.

Evidence

[9] The Applicant began working for the Respondent in October 2008 as a truck driver. It is not in contest that on 5 October 2017 the Applicant attended a meeting with employees of the Respondent to discuss his request to access accrued entitlements in advance, including sick leave, annual leave and long service leave, whilst recovering from an ankle operation he was scheduled to have on 6 October 2017. 1

[10] Following a discussion regarding the Applicant’s ability to access his entitlements the Applicant resigned from his employment on 5 October 2017. 2 The Applicant claims that he was forced to resign from his employment. The Respondent claims that the Applicant resigned of his own free will.3

[11] On 6 October 2017 the Applicant had an operation on his ankle and was discharged from hospital on 9 October 2017. The Applicant’s evidence is that it took him nearly 10 days to recover cognitive ability and stop taking heavy pain killers which made him drowsy. Then on 21 October 2017 the Applicant’s bother-in-law, Mr George Yammouni visited and after having a discussion about the ending of his employment Mr Yammouni convinced the Applicant to lodge an unfair dismissal application. On 24 October 2017, the Applicant completed the application with the help of Mr Yammouni, he signed the application and placed it inside an Australia Post Express Post envelope in front of Mr Yammouni. The Applicant states that his wife, Mrs Lorna Kirkpatrick posted the Express Post envelope at the Post Office on 25 October 2017. 4

[12] The Applicant’s brother-in-law, Mr George Yammouni, provided a witness statement in the matter. The evidence of Mr Yammouni is consistent with the evidence of the Applicant in that he discussed making an unfair dismissal application with the Applicant on 21 October 2017 and on 24 October 2017 helped the Applicant complete the application which the Applicant signed and placed inside an Express Post envelope in front of him. 5

[13] The Applicant’s wife, Mrs Lorna Kirkpatrick also provided a witness statement in the matter. Mrs Kirkpatrick’s evidence is that the Applicant completed an unfair dismissal application on 24 October 2017; he signed the document in front of her, placed it in an Express Post envelope, sealed it and gave it to her to post in the morning. Mrs Kirkpatrick states that on the morning of 25 October 2017 she went to the Australia Post Office at Epping Plaza Shopping Centre and posted the Express Post envelope in the yellow letter box outside the Australia Post Office. 6

[14] The Australia Post Express Post envelope on the Commissions file is addressed to the “Fair Work Commission, PO BOX 1994 Melbourne, Vic 3001”, being the Commission’s GPO box address. The Australia Post Express Post envelope has information provided by Australia Post which states “delivery is guaranteed to occur the next business day only within the Express Post network”. Further information is provided in relation to delivery and where the envelope can be posted. The Express Post envelope is correctly addressed and the Commission’s GPO box address is within the Express Post network. Further, it is clear from the uncontested evidence of Mrs Kirkpatrick that the Express Post Envelope was posted in accordance with requirements for Express Post delivery, being at a yellow street posting box.

[15] It is clear that if the Express Post envelope containing the Applicant’s unfair dismissal application was delivered to the Commission on 26 October 2017 it would have been made in the statutory time frame. However, it was not delivered to the Commission until 27 October 2017.

Consideration

Exceptional circumstances

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

[17] The term exceptional circumstances was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd⁷, 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.” 8

[18] While 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.

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

(a) the reason for the delay

[20] The evidence that the Applicant’s wife posted the Express Post envelope containing the Applicant’s unfair dismissal application at Epping Plaza Shopping Centre on the morning of the 25 October is not contested. The Applicant was entitled to assume, given the guarantee that Australia Post give that items will be delivered the next day within the Express Post network that the envelope would indeed be delivered the next day to the Commission, which is clearly within that network. Why it was not delivered until the next day is not clear. However, the fact that it was not is not the fault of the Applicant. I think it is reasonable that the Applicant relied on the guarantee suggested on the Express Post envelope.

[21] In considering the reason for the delay I have had regard to the Full Bench decision in Leung v Chinese Community Social Services Inc (Leung) 9which also involved circumstances where an unfair dismissal application was lodged one day late after the application, sent in an Australia Post Express Post envelope, was not delivered the day after it was posted, despite the guarantee of next day delivery provided by Australia Post.

[22] In Leung, the Full Bench said at [24] that:

“[24]…we think the words on the “Express Post” envelope suggest Australia Post is guaranteeing that it will be delivered the next business day to the address put on the envelope by the sender. The only relevant caveat on the “Express Post” envelope being in respect of the delivery address and sender’s details, the posting times and the posting outlet or box. Having regard to the wording on the “Express Post” envelope, we think it is reasonable to rely on the guarantee suggested by it, subject to meeting the other caveats on the envelope to which we have referred.”

[23] Relevantly, the Full Bench held at [29] 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.”

[24] I agree with and adopt the approach of the Full Bench in that decision which dealt with largely similar circumstances to those here. I am satisfied that there is an acceptable reason for the delay.

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

[25] The Applicant resigned from his employment 5 October 2017.

[26] This is a neutral consideration.

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

[27] Action taken by the Applicant to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 10 The Applicant did not take any action to dispute the dismissal, other than lodging his unfair dismissal application.

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

[28] The application was lodged one day out of time. I am not satisfied that there is any prejudice to the employer. However, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time. 11 This is a neutral consideration.

(e) the merits of the application

[29] The Applicant claims that he was forced to resign from his employment on 5 October 2017 so that he could access his long service leave entitlement, while recovering from an operation on his ankle. 12 The Respondent submits that the Applicant resigned from his employment of his own free will.13 I am not in a position, nor is it appropriate to embark on detailed consideration of the substantive case. On the limited material before me going to the merits of the Applicant’s unfair dismissal application, I am unable to conclude that the application is without merit. This is also a neutral consideration

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

[30] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 14 At least one similar circumstance to the situation in this matter has been dealt with and decided in the past (see paragraphs [21] – [23]). It is fair that this decision be consistent with the approach taken in that matter.

Conclusion

[31] Taking into account all of the factors, I am satisfied that Australia Post’s failure to deliver to the Commission the Express Post envelope containing the Applicant’s unfair dismissal application in accordance with the guarantee of next business day delivery stated on the envelope weighs in favour of granting an extension. I am also satisfied that the consideration of s.394(f) weighs in favour of granting an extension. All other factors to which I am to have regard are neutral considerations. Having considered all of the factors I am satisfied that there are exceptional circumstances that warrant allowing a further period for the making of an application for an unfair dismissal remedy.

[32] I propose to allow the Applicant an extension so that the period within which Mr Kirkpatrick can make is application is extended to 27 October 2017.

[33] An order giving effect to this decision has been issued separately in PR598735.

COMMISSIONER

 1   Form F2 – Unfair Dismissal Application, filed 27 October 2017, Q3.2 and Form F3 – Employer Response to Unfair Dismissal Application, filed 6 November 2017, Q3.2

 2   Form F2 – Unfair Dismissal Application, filed 27 October 2017, Q3.2

 3   Form F3 – Employer Response to Unfair Dismissal Application, filed 6 November 2017, Q3.2

 4   Witness Statement of Thomas John Kirkpatrick, dated 2 December 2017

 5   Witness Statement of George Yammouni, dated 2 December 2017

 6   Witness Statement of Lorna Kirkpatrick, dated 2 December 2017

7 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1

 8   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 [13], [15]

 9   [2015] FWCFB 2106

 10   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300

 11   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

 12   Witness Statement of Thomas John Kirkpatrick, dated 2 December 2017

 13   Form F3 – Employer Response to Unfair Dismissal Application, filed 6 November 2017, Q3.2

 14   Wilson v Woolworths [2010] FWA 2480, [24]-[29]

Printed by authority of the Commonwealth Government Printer

<Price code C, PR598695>