Victoria Anne Gore v Coles Supermarkets Australia Pty Ltd

[2022] FWC 2341

[2022] FWC 2341

The attached document replaces the document previously issued with the above code on 5 September 2022.

Endnote [18] has been amended from “[2018] FWCFB 3288” to “[2018] FWCFB 901”.

Associate to Deputy President Anderson

Dated 5 September 2022

[2022] FWC 2341

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Victoria Anne Gore

v

Coles Supermarkets Australia Pty Ltd

(U2022/8269)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 05 SEPTEMBER 2022

Application for an unfair dismissal remedy – extension of time – COVID-19 isolation – exceptional circumstances – time extended

1. Victoria Anne Gore (Ms Gore or the applicant) has applied to the Commission under s 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her dismissal by Coles Supermarkets Australia Pty Ltd (Coles, the Respondent or the employer) which took effect on 14 July 2022.

1. Ms Gore’s application is dated 2 August 2022. It was received and date stamped by administrative staff of the Commission in hard copy format on 11 August 2022.

1. The application is notionally seven days outside the statutory 21-day period for making unfair dismissal claims. Ms Gore submits that if out of time, an extension should be granted.

Facts

1. I make the following findings based in part on Ms Gore’s evidence[1] and based in part on the documentary record. Ms Gore’s recollection of the sequence of events was not exact. I prefer the documentary record where there is inconsistency.

1. Ms Gore is a resident of the Mallala region, a regional township located about sixty kilometres north of Adelaide, South Australia. She was employed by Coles as an online shopper at its supermarket in Gawler, South Australia.

1. Ms Gore held the view at the time of dismissal that her dismissal was unfair. During the week that followed she considered whether taking action was worth the trouble. By around 21 July 2022 she decided to do so, by making an unfair dismissal application.

1. Having consulted the Commission website, Ms Gore was aware that a 21-day statutory rule applied.

1. On 25 July 2022 Ms Gore self-administered a rapid antigen test for COVID-19 which produced a positive indicator. Ms Gore decided to seek a confirmatory PCR test.

1. On the morning of 26 July 2022, Ms Gore travelled to a COVID-19 testing station where she took a PCR test. She returned home awaiting results.

1. On 26 July 2022 Ms Gore received a text message (from Public Health Services Tasmania) informing her that she had tested positive for COVID-19 and must “immediately go home / to [her] current residence and isolate”.[2]

1. The next day (27 July 2022) Ms Gore received a similar text message from SA Pathology and then another that day from SA Health advising that she had tested positive to COVID-19 and was required to isolate.[3]

1. Between 27 July 2022 to 2 August 2022 (inclusive) Ms Gore isolated at home due to COVID-19.

1. On 2 August 2022 (4.30am) Ms Gore received a text message from Public Health Tasmania with a ‘Release Form Isolation Letter’.[4]

1. Based on this advice, Ms Gore took herself out of isolation from the morning of 3 August 2022.

1. Somewhat confusingly, on 3 August 2022 Ms Gore received a separate text message from SA Health advising that her isolation period would end at 11.59pm on 3 August 2022.[5]

1. Ms Gore tried unsuccessfully to send an unfair dismissal application online.

1. On 2 August 2022 Ms Gore completed a hard copy application.

1. On 3 August 2022 Ms Gore travelled to the Mallala post office and posted the application by Australia Post express post to the mailing address advised on the Commission website: “PO Box 8072 Station Arcade Adelaide SA 5000”.[6]

1. The Australia Post tracking history[7] provides that the envelope was received by the Australia Post network in Mallala, South Australia on Wednesday 3 August at 9:16am and delivered to the Commission’s post box on Friday 5 August at 7:57am.

1. A systems change to the Commission’s administrative arrangements for collecting mail occurred from 7 June 2022. Temporary arrangements which had been put in place for centralisation of mail delivery to Victoria (redirecting posted mail from capital city post boxes) ceased.[8]

1. On the morning of Friday 5 August 2022 an administrative officer of the Commission visited the Adelaide post box in person. The administrative officer of the Commission did not locate Ms Gore’s application in the post box.

1. The Commission’s post box was not checked by administrative officers between Saturday 6 August 2022 and Wednesday 10 August 2022 (inclusive).

1. On 11 August 2022 an administrative officer of the Commission visited the post box. On this day, the administrative offer found and retrieved Ms Gore’s application (dated 2 August 2022) which was contained in an express post envelope.[9]

1. In response to question 1.6 of the application, Ms Gore indicated that her application was being made within 21 calendar days of her dismissal taking effect.[10]

1. On 15 August 2022 Ms Gore received a letter from the Commission advising that her application was out of time and required an extension of time.

1. On 22 August 2022 the employer filed a response in the Commission, opposing Ms Gore’s application on merit and raising a jurisdictional issue concerning it being out of time.

Consideration

1. Section 394(3) of the FW Act provides:

“394     Application for unfair dismissal remedy

…

(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.”

1. An out-of-time application can only proceed if the applicant can establish that “exceptional circumstances” exist within the meaning of s 394(3).

1. An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[11]

1. The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[12] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[13]

1. 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.”[14]

1. The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[15]

Status of the application

1. Ms Gore’s application is out of time. Although the Fair Work Commission Rules 2013 (FW Rules) permit an application to be “lodged” by “sending the document by post to an office of the Commission” it is not “made” within the meaning of s 394(2) until this occurs. A mailed application is not made when drafted, dated or posted.

1. In the case of a posted application, the making occurs when the postal process is complete and the posted application is received by “an office of the Commission”.

1. I do not consider that the moment a postal officer places an application in an external post box leased by the Commission to be an act of lodgement. At that point, the document has not been transmitted into the care and control of the Commission. Until collected, it remains in the care and control of the postal authority. Lodgement occurs when the mailed application is received within the language of r 13(2)(b) of the FW Rules by “an office of the Commission”. Only when received in this sense is an application “made”.[16]

1. Given this, I do not consider Ms Gore’s application to have been “made” on 5 August 2022 when the express post envelope was deposited into the Commission’s post box in Adelaide.

1. In this matter, it was “made” in the relevant sense when removed from the post box by an officer or agent of the Commission, on 11 August.

1. Having not been “made” until 11 August 2022, the application is seven days outside the statutory 21-day time period for filing unfair dismissal claims. The first of the twenty-one days was 15 July 2022 (the day after dismissal took effect). Counting forward (including that day) the twenty-first day was Thursday 4 August 2022. The seven day period of delay is from 5 August 2022 to 11 August 2022 (inclusive).

1. If Ms Gore’s application is to proceed, an extension of time is required.

1. I now consider the factors set out in s 394(3).

Reason for the delay (section 394(3)(a))

1. 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.[17] 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.[18]

1. 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.[19]

1. 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 the delay is acceptable or credible.[20]

1. There are two periods of delay to consider.

First period of delay

1. The first period of delay is the one day 5 August 2022 when the application was being handled by Australia Post and delivered into the post box.

1. I accept the evidence that Ms Gore posted her application on 3 August 2022, on day twenty after her dismissal took effect. I also accept that Ms Gore’s application was delivered to the Commission’s post box on 5 August 2022, one day outside of the 21-day statutory time limit.

1. There was no undue delay by Australia Post. An express post item posted at Mallala in regional South Australia was delivered two days later to a post box in the Adelaide CBD. This is broadly in line with Australia Post Express Post Domestic Delivery Estimator.[21]

1. It is plausible, and I so find, that there was a time gap on 5 August 2022 between Ms Gore’s application arriving at the postal destination and being physically placed in the Commission’s post box. In this period a Commission staff member visited the post box and collected mail but the application was not in the post box. 

1. Ms Gore submits that the first period of delay on 5 August 2022 can be explained by her being unable to post the application until she was freed from COVID-19 isolation on 2 August 2022.

1. The Fair Work Commission Rules 2013 permit filing by post. It is a lawful method of lodgement, amongst others. As a general principle, an applicant should not be disadvantaged by using a lawful method of lodgement.

1. As an application is not “made” (within the meaning of the FW Rules 2013) until received by the Commission, an applicant posting an application should take into account the method of postage used and allow a reasonable time for the delivery and receipt of mail in the ordinary course.

1. In the circumstances, I am satisfied that Ms Gore did so. She used the express post service, not ordinary mail.

1. Ordinarily, I would consider that posting on day twenty, even by express post, does not allow a reasonable period for the delivery and receipt of mail in advance of the 21-day statutory period expiring.

1. However, in the unusual circumstances of this matter where Ms Gore could not post her application until released from COVID-19 isolation on day nineteen, there is a reasonable explanation for posting at such a late point in the twenty-one day cycle.

1. Coles submit that Ms Gore could have lodged by post earlier (prior to contracting COVID-19) or online (either prior to contracting the virus or whilst isolating).

1. Ms Gore had no notice until 26 July 2022 that she had contracted COVID-19. Until then she had adequate time remaining to lodge by post. From then however she needed to isolate. Lodgement by post was thereafter not possible until the isolation period was completed.

1. I take into account that whilst a person is in COVID-19 isolation an application can be “made” electronically (online or email). Ms Gore could have done so. She had online access and could use a computer despite intermittent connectivity issues in her reginal location. For example, she was able to electronically send a blank F2 to a friend to download.

1. Ms Gore’s evidence is that she tried to lodge online but was unsuccessful. Ms Gore’s evidence that she tried to do this before the isolation period was hazy and unreliable. It is more likely that she tried to do so during the isolation period or immediately following isolation. I make no finding that she did so beforehand. I nonetheless accept her evidence that she tried unsuccessfully at some point. That point was sometime prior to posting the application on 3 August 2022. She was unsuccessful due, it would appear, to her error with navigating online lodgement – not the Commission’s online system.

1. As Ms Gore’s hard copy application is dated 2 August 2022, it is plausible that she did not advance her interests by trying to lodge an application (unsuccessfully online, then by completing a hard copy application) until around 2 August 2022 after receiving a text message from Public Health Tasmania that her isolation period was ending that day.

1. In circumstances where Ms Gore had unsuccessfully tried to lodge online, it was not unreasonable that she would then post her application.

1. On balance, and though Ms Gore left it relatively late to advance her interests, I find that the impact of the immediately preceding COVID-19 isolation period renders the explanation for the first period of delay reasonable. It weighs in favour of a finding of exceptional circumstances.

Second period of delay

1. In this matter, the evidence clearly establishes, and I so find, that the reason for delay from 6 August 2022 to 11 August 2022 (inclusive) was a failure by the Commission to clear its post box in a timely manner.

1. This appears to have occurred due to a systems error consequent on the Commission ceasing temporary arrangements put in place during the pandemic whereby hard copy mail to Commission registries had been redirected and processed at a central location in Melbourne due to the closure of registries in each State. Upon this temporary arrangement ceasing, an administrative system was not promptly put in place to recover mail no longer redirected away from the Adelaide registry.

1. The explanation for the second period of delay between 6 August 2022 and 11 August 2022 is reasonable. It weighs strongly in favour of a finding of exceptional circumstances.

Awareness of the dismissal taking effect (section 394(3)(b))

1. Well prior to being dismissed, Ms Gore was aware that her dismissal would take effect on 14 July 2022, and its reason.

1. In the circumstances, this is a neutral consideration.

Action taken to dispute dismissal (section 394(3)(c))

1. Ms Gore held a view at the time of dismissal that her dismissal was unfair.

1. She did not communicate with the employer after dismissal, preferring to pursue this legal option.

1. In the circumstances, this is a neutral consideration.

Prejudice to the employer (section 394(3)(d))

1. Coles did not advance any specific prejudice should an extension be granted. A claim would have to be responded to, involving time and cost.

1. However, the absence of prejudice would not of itself be a reason to grant an extension.[22]

1. In the circumstances, this is a neutral consideration.

Merits (section 394(3)(e))

1. A hearing on merit would concern whether Ms Gore’s dismissal was for a valid reason and, aside from that question, whether Ms Gore was afforded procedural fairness or the dismissal otherwise unfair.

1. As I have not heard evidence on these questions, and notwithstanding recent decisions of the Commission providing guidance on the approach to vaccination mandates arising from employer policy, it is not possible to express a provisional view on the strength of the respective cases.

1. In this matter, this is a neutral consideration.

Fairness between persons in similar position (s 394(f))

1. No issues were raised as to fairness between persons in a similar position.

1. This is not a relevant factor.

Conclusion

1. The period of delay has a reasonable explanation. The late posting of the application (accounting for one day of the delay period) was in material respects a result of Ms Gore being in COVID-19 isolation from day twelve to day nineteen after dismissal. This was an unusual circumstance. The remaining six days of the delay period are accounted for by the Commission not collecting mail from its post box in a timely manner due to a systems change in mail collection.

1. Other factors are neutral.

1. No factors weigh against extending time.

1. There are no discretionary reasons not to extend the time. Although Ms Gore left it relatively late to advance her interests, she could not have foreseen contracting COVID-19 or the changes that impacted the Commission’s processes for collection of mail, or her inability to navigate online lodgement.

1. There being exceptional circumstances, the time for lodgement of application U2022/8269 is extended so as to permit it to be further heard and determined.

1. It will now proceed to conciliation.

1. An order[23] giving effect to this decision is issued in conjunction with its publication.

DEPUTY PRESIDENT

Appearances

Ms V Gore, on her own behalf

Ms M Mulenga, of and on behalf of Coles Supermarkets Australia Pty Ltd

Hearing details:

2022
Adelaide (by video)
2 September 2022

[1] VG2

[2] VG1

[3] VG7; VG8

[4] VG3

[5] VG9

[6] VG4

[7] VG5

[8] VG6; Osborn v Social Energy Australia Pty Ltd[2022] FWC 2292 at [49] to [51]

[9] VG6

[10] F2 dated 2 August 2022 page 4

[11] Smith v Canning Division of General Practice[2009] AIRC 959

[12] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

[13] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316

[14] [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]

[15] 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]

[16] Hong Ye v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 327, 330 and 332

[17] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]

[18] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, at [35]-[45]

[19] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288

[20] 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

[21] CS1

[22] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

[23] PR745463

Printed by authority of the Commonwealth Government Printer

<PR745461>