v Serco Australia Pty Limited

[2021] FWC 6540

[2021] FWC 6540

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lauren Erskine
v
Serco Australia Pty Limited (U2021/10380)

COMMISSIONER LEE MELBOURNE, 13 DECEMBER 2021

Application for an unfair dismissal remedy –Application made out of time – circumstances not exceptional – application dismissed

[1] Ms Lauren Erskine (The Applicant) commenced employment with Serco Australia Pty Limited (the Respondent) on or about 13 May 2019. She was employed in the position of a Detainee Service Officer. It is not in contest that she was terminated from her employment by the Respondent on 7 October 2021.

[2] The reason given by the Respondent for the decision to terminate the Applicant’s employment was outlined in a letter sent to the Applicant dated 7 October 2021. The Respondent terminated the Applicant’s employment due to serious misconduct. The conduct that the Applicant is said to have engaged in includes:

•  Leaving her designated post on several occasions to visit a detainee without appropriate authorisation or approval.

•  Failure to follow reasonable and lawful directions to not leave her assigned post and enter other compounds without express approval from her manager.

•  Introducing and using contraband in the workplace.

•  Operating her personal mobile phone without appropriate authorisation.

[3] The Applicant has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth)(the Act). That application was lodged on 16 November 2021.

Background

[4] On 24 November 2021, both the Applicant and the Respondent were sent a letter regarding the application. The Applicant was also sent Directions to comply with before the Conference/Hearing on 7 December 2021. The Applicant filed a short statement on the evening of 6 December 2021.

[5] At the hearing on 7 December 2021, the Applicant was self-represented and gave sworn evidence during the hearing. The Respondent sought permission to be represented by a lawyer or paid agent pursuant to s.596 of the Act, however permission to appear was denied. The Respondent was therefore also self-represented.

Application was filed outside the statutory timeframe

[6] An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.

[7] The parties agree, and I so find, that the dismissal took effect on 7 October 2021. Based on a termination date taking effect on 7 October 2021, the application for a remedy should have been lodged by no later than 28 October 2021. The application was made on 16 November 2021, some 19 days after the dismissal took effect. I am therefore satisfied that the application was not made within 21 days after the dismissal took effect. It remains to be considered whether it was made within such further period as the Commission allows.

[8] The Commission may exercise its discretion to allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters set out at subsection 3 of s.394 of the Act. Those matters are:

(a) the reason for the delay;

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

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

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

(e) the merits of the application; and

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

[9] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances. 1

[10] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. 2 I must be satisfied that, taking into account s.394(3) that there are exceptional circumstances.

[11] I now consider these matters in the context of the application.

(a) Reason for the delay

[12] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 3

[13] The explanation the Applicant provided for the delay in filing her application was as follows:

“I experienced technical difficulties with sending through the original email, which was advised by lawyers at Maurice Blackburn to have this application sent through on the 28th of October 2021, which was sent through that night at approximately 1828hrs. Unfortunately I had not realised that there was another folder with the attachments and had sent it through my outlook inbox and presumed it was a double up.”

(per original)

[14] During the hearing, the Applicant provided the following further explanation:

“Yes, so when I had originally sent through the email, because of the files in the original email being so large, it had gone to an alternative inbox, like, through Outlook.  I didn't actually realise until the 19th or something, of November, so I've resent it through because I thought it was going to be a double-up, so it was just an issue with my mailing system.” 4

[15] During the hearing, the Applicant confirmed that this “technical difficulty” was the reason for the delay. 5 I note that the Applicant gave evidence that in the lead up to the dismissal, and in particular in September, she was experiencing very serious mental health issues. However, the Applicant did not indicate that these factors were a reason for the delay in lodging the application.

[16] Prior to the hearing, my Associate sent a request to the Fair Work Commission Registry and ICT Support Team to conduct a search of the Commission’s records in order to establish if there was any evidence of an attempt by the Applicant to lodge an application on 28 October 2021. No evidence of any attempt to lodge an application on that date was found.

[17] I advised the Applicant at the hearing of this fact. Her response was:

“…it was my inbox that was having the problems. So when I had sent it through there's, and the recorded inbox, and it's got Outlook on it, so when you click in there, it's got four attachments and an email that you've previously tried to send.  But I didn't realise what it was until, like, I've sent it through again.” 6

[18] The Applicant confirmed that she regularly used email and understood how to check if an email was sent or not, but that she did not check if her attempt to lodge the application on 28 October 2021 was successful. 7

[19] After 28 October 2021, the Applicant did not take any action until 16 November 2021, when she successfully lodged an application for unfair dismissal. That application was seemingly sent without any difficulty.

[20] When the Applicant was questioned as to why she lodged an application on 16 November 2021 if she believed that she had done so on 28 October 2021, the Applicant replied that:

“Well, because I hadn't heard anything, and because I haven't been through the unfair dismissal before, I didn't realise how long it took, so I had resent it.” 8

[21] On 17 November 2021, the Commission responded to the 16 November 2021 application and advised the Applicant that there was missing or incorrect information. On 19 November 2021, the Applicant responded to that letter in the following terms:

“Hi

I have re attached my forms.

They were sent on the 28/10/2021 I’m not sure why it was only just received.”

[22] However, it is apparent on the Applicant’s own evidence that this is not accurate. The application was not actually sent on 28 October 2021.

[23] Having considered the evidence of the Applicant, I am not satisfied there is an acceptable reason for the delay. Firstly, the Applicant’s sworn evidence is that she did make an attempt to lodge an application via an email on 28 October 2021, and that uncontradicted evidence is accepted. However, the evidence of the Applicant that her attempt to email the application failed because of an issue with her email system was vague and difficult to understand.

[24] The Applicant made no attempt to satisfy herself the application was successfully lodged at the time. It was after a significant period of time had passed, being a further 19 days, that she decided that since she had not heard from the Commission, that she would lodge another application.

[25] The Applicant accepts that she understands how to send emails and how to check whether they have been sent. Assuming the Applicant did attempt to lodge an application on 28 October 2021, I am not satisfied that the Applicant’s explanation that the email went into another inbox is a “technical difficulty”. If that is what occurred, what appears to have happened is the Applicant has simply failed to properly execute the sending of the email, and having failed in that regard, made no attempt to ensure the email had in fact been sent.

[26] Taking into account all the circumstances, I accept that the Applicant’s failed attempt to lodge the application on 28 October 2021 is an acceptable reason for a very short delay in filing the application. However, I do not think it is an acceptable explanation for such a significant delay of 19 days. The Applicant could have, and should have, taken some action within a much shorter period of time to ensure that her application was successfully lodged with the Commission. In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

(b) Whether Applicant first became aware of the dismissal after the date it took effect

[27] Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant was advised on 7 October 2021 that her employment would end on that day. In the circumstances, this factor is a neutral consideration.

(c) Action taken by the Applicant to dispute her dismissal

[28] Turning next to the question of the action taken by the Applicant to dispute her dismissal. During the hearing, the Applicant gave evidence that she spoke to a solicitor at Maurice Blackburn on or around 22 October 2021. There is no indication that the firm was instructed to act for the Applicant. The Applicant’s evidence was to the effect that the solicitor advised her that the application must be lodged by 21 days. In the circumstances, that is a matter that weighs slightly in favour of the Applicant.

(d) Prejudice

[29] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.

[30] The Respondent did not submit that there was any prejudice and that this should be treated as a neutral consideration. In the circumstances, I agree with the Respondent that this is a matter that isneutral in the instant case.

(e) Merits of the application

[31] In cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.

[32] As set out earlier, the Applicant was dismissed for alleged serious misconduct. The alleged conduct is said by the Respondent to contravene its Code of Conduct, the DIBP FDSP Code of Conduct, the Respondent’s Core Values of Trust, Care and Pride, SIS Duty of Care PPM, the Serco Immigration Services Agreement 2018 and aspects of the Applicant’s letter of employment.

[33] The Applicant claims that:

•  Allegations of giving items to detainees when not asked are false.

•  She accepts there is footage of her opening the door to talk to a detainee, but this was to ask how the detainee’s daughter was.

•  In the Applicant’ Form F2 application, she states the dismissal was unfair because:

“I believe the dismissal was unethical and was simply due to targeting by management. There is no physical proof of me doing anything wrong by conversing with detainees. The stand down took place on July 21^st with 4 meetings and no final meeting with the General Manage Zoran.”

[34] As to the procedural fairness of effecting the dismissal, the appears that Respondent put the allegations to the Applicant in writing and provided an opportunity for her to respond.

[35] However, the Applicant makes claims of procedural unfairness, including:

•  That she was terminated by telephone.

•  There was no formal meeting with the general manager, though she understood there would be.

•  That she is yet to hear the “appropriate reasoning” for her dismissal.

[36] There are also other considerations likely to be relevant to the determination of the merits, including the Applicant suffering from severe mental health issues in the lead up to the dismissal.

[37] Having considered the limited material available, it is apparent that the claimed misconduct if proven, is likely to be found to be a valid reason for dismissal. However, the Applicant generally denies the allegations, or refers to mitigating factors. There is the appearance of procedural fairness to effect the dismissal, however the Applicant has raised concerns about aspects of the procedure. There are also other aspects likely relevant to the consideration of the merits, including the Applicant’s struggles with mental illness in the lead up to the termination.

[38] Having considered the material, the Applicant’s case is not without merit, but nor is it a particularly meritorious case. In the circumstances, that is a matter that is a neutral consideration.

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

[39] Cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application.

[40] Neither party put any submissions on this issue, nor did any party bring to my attention any relevant decision of the Commission which is in terms similar to the facts in this case or where the Commission granted an extension of time or found exceptional circumstances on facts that are similar to the facts before me.  Consequently, that matter is a neutral consideration in the present circumstances.

Conclusion

[41] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

[42] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in s.394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

[43] As I have indicated, I am not satisfied there is an acceptable reason for the delay. This weighs against the Applicant. The action taken to dispute the dismissal by way of attending the solicitor’s office weighs in favour of the Applicant but only marginally so. All other factors are neutral considerations.

[44] In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order to that effect will separately be issued in PR736532.

COMMISSIONER

Appearances:

L Erskine, Applicant.
C Graham, for the Respondent.

Hearing details:

2021.
Melbourne (via Microsoft Teams):
December 7.

Printed by authority of the Commonwealth Government Printer

<PR736531>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 4   Transcript, at PN65.

 5   Transcript, at PN86.

 6   Transcript, at PN67.

 7   Transcript, at PN73 – PN78.

 8   Transcript, at PN69.