Weber v THR Developments Pty Ltd

[2021] FWC 2422

[2021] FWC 2422

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Raymond Weber
v
THR Developments Pty Ltd
(U2021/2963)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 3 MAY 2021

Application for an unfair dismissal remedy - extension of time – application posted within time but not received - delay attributable to postal service delays - exceptional circumstances – extension granted

[1] By application dated 26 February 2021 Raymond Weber (Mr Weber or the applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by THR Developments Pty Ltd (THR, the respondent or the employer).

[2] Mr Weber lives at Lockleys in suburban Adelaide with his parents. He commenced working for THR on 20 January 2020. On 9 March 2021 his employment was terminated.

[3] Mr Weber’s application (sent by post) was received by the Commission on 8 April 2021. That date is outside the statutory 21-day time limit for filing unfair dismissal claims. As the date dismissal took effect was 9 March 2021, the application is nine days out of time. Mr Weber seeks an extension of time. THR oppose that course.

[4] On 15 April 2021 the respondent lodged a formal response opposing the application.

[5] The Commission issued directions on 13 April 2021 requiring Mr Weber to file materials in support of an extension of time by 21 April 2021.

[6] No materials were filed by Mr Weber. My chambers followed up this non-compliance with Mr Weber on 28 April 2021. In speaking to Mr Weber by phone, Mr Weber was informed of the urgent need to file materials. He did not do so.

[7] At the hearing on 30 April 2021 Mr Weber advised that he had only received copies of the directions the day prior, 29 April. Mr Weber advised that he does not operate an email account and chooses to live largely without reference to or reliance on the internet or electronic communication. He sought an adjournment to enable preparation of a witness statement.

[8] I declined the adjournment request on the ground that the employer, attending the hearing with three officers, would be prejudiced by an adjournment and upon being satisfied that Mr Weber understood the purpose of the hearing and was able to give oral evidence on that which he would have included in a written statement.

[9] As an aside, I indicate that upon my chambers checking the Australia Post tracking receipt for dispatch of the Directions sent by the Commission by ‘Express Post’ to Mr Weber on 13 April 2021, it is apparent that delivery of that ‘Express Post’ envelope did not in fact occur until 29 April 2021 – some sixteen days later. That is hardly an “express” postal service (funded by the public purse) and is a matter worthy of bringing to attention via this decision. The tracking details are consistent with Mr Weber’s evidence that he did not receive the Express Post communication until 29 April 2021.

[10] Mr Weber gave oral evidence at the hearing on 30 April 2021. He and THR were self-represented. He and the employer made submissions. I reserved my decision.

[11] Mr Weber was direct in his evidence and generally answered questions concisely and clearly. He did not embellish his answers and made appropriate concessions. Except in one respect (considered below) where I regard his evidence to be vague, I consider his evidence truthful. It remained consistent in response to my questions and that from THR.

Facts

[12] I make the following findings.

[13] On 9 March 2021 Mr Weber was dismissed.

[14] Over the following weeks Mr Weber sought information by phone about his rights from the Fair Work Ombudsman. He was informed that he had a right to lodge an unfair dismissal application and that he needed to do so within 21 days of dismissal. He was informed that he could do so on-line, by email or by post.

[15] Mr Weber calculated in his mind when the 21 days would expire. He calculated (correctly) 30 March 2021. He preferred not to file his application until he had received his final termination payments from THR.

[16] On 24 March 2021 Mr Weber, aware of the clock ticking to lodge his claim, asked his mother to download an unfair dismissal application form from her work. Mr Weber did not do so himself as he did not use the internet. Upon returning from work that day, his mother gave Mr Weber a printed copy of the form together with details of where to send it.

[17] On or about 26 March 2021 Mr Weber received his final payment from THR. He then decided to make his application. He populated the form with his handwritten details, put it in an envelope, correctly addressed the envelope (Fair Work Commission PO Box 8072 Station Arcade Adelaide SA) and placed a stamp on the envelope. In his application, he provided a postal address and phone contact only indicating “N/A” to an email address.

[18] At dinner time that day, as his father was leaving the house to collect some take-away for dinner, Mr Weber asked his father to post the envelope.

[19] Upon his father returning, Mr Weber believed his father had posted the envelope in a local letter-box. Although he said that he asked his father to confirm that he had done so upon return with the take-away, I do not make a finding to that effect. His evidence on that aspect was vague. It is more probable than not that Mr Weber assumed his dad had posted the letter and nothing was expressly said about the matter.

[20] Believing that his application had been posted, Mr Weber took no action on the matter until contacted by the Commission on about 9 April 2021 when a Commission officer left a message on his phone seeking payment of the filing fee. Mr Weber returned that call on 12 April, and a filing fee was paid.

[21] On the evening of 26 March 2021 Mr Weber believed that his application had been “made” that day, and was within the 21 days, because that was the day his application was posted to the Commission. He had not sought advice on when a posted application is, as a matter of law, lodged. Not being a user of the internet or web sites, he did not read the Commission web site on that subject. He had not asked that question of the Ombudsman. It had not crossed his mind that he might be out of time if his posted application was not received by the Commission until after 30 March.

[22] The Commission has a current arrangement with Toll Transport whereby the Adelaide postal box is cleared each working day by Toll and the mail it contains is delivered by Toll to the Adelaide Registry that day.

[23] The Australia Post stamp across the postage stamp on the envelope containing Mr Weber’s application is not clear. It simply reveals that the envelope was processed by Australia Post some time in “APR” (April).

[24] The envelope was delivered to the Commission (by Toll) on 8 April 2021. It was incorrectly date stamped by a Commission officer as received on 4 April, but the Commission’s electronic records indicate that it was received and entered on 8 April 2021.

[25] On 9 April 2021 a Commission officer, as noted, sought to contact Mr Weber for payment of the filing fee.

[26] Upon payment of the filing fee on 12 April 2021, Mr Weber took no action to ascertain the status of his application. Only on 28 April, after a follow-up from my chambers, did Mr Weber indicate that he was pursuing his application and would follow-up the directions (which were re-sent).

[27] THR in the interim had filed the Employer Response (F3) (on 15 April), sent it by post to Mr Weber (with proof by receipt) and on 29 April 2021 followed-up with my chambers to ascertain whether any materials had been filed by Mr Weber.

Submissions

[28] Mr Weber says that an extension of time should be granted for the following reasons:

•  he acted promptly after his dismissal to inform himself of his rights;

•  he completed his application on 26 March 2021 within the 21 days (at day 17) and had it posted by his father that day;

•  lodging an application by post is a permitted method of making a claim;

•  he acted in good faith and at all times believed his application was within time. This is what he said in answer to question 1.5 of the application – that he was lodging within the 21 days;

•  he did not back-date his application;

•  he did not receive the Commission’s directions until 29 April 2021;

•  he should not be prejudiced for choosing not to use an on-line service or not having an email account or not be a user of the internet or social media; and

•  there is no prejudice to the employer should an extension be granted.

[29] THR submit that there are no exceptional circumstances justifying an extension of time. It contends:

•  Mr Weber could have and should have made his application much earlier than day 17 (if he did so on that day). Had he acted earlier, none of this would be an issue. He has himself to blame;

•  it is not certain that Mr Weber did send his application on day 17. It is possible that he backdated a late application to make it look within time;

•  the employer has complied with all directions but Mr Weber hasn’t;

•  Mr Weber had plenty of opportunity inside three weeks to get all the required information from the Fair Work Ombudsman including about how the 21 day works but didn’t do so;

•  by using a postal service Mr Weber took a risk and could have just as easily asked his mother to lodge it by email from her work since he received the application form from her via her work; and

•  the employer will be disadvantaged by having to defend an application that is out of time and which should already be progressing through the system had it been made within time.

Consideration

[30] 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.”

[31] Mr Weber’s application can only proceed if he can establish that “exceptional circumstances” exist within the meaning of section 394(3).

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

[33] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 2 A decision whether to extend time under section 394(3) involves the exercise of a discretion.3

[34] I apply section 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd: 4

“[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.”

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

[36] I now consider each of the factors set out in section 394(3).

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

[37] The reason for the delay in lodging an application is a factor that must be considered. 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. 5

[38] 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. 6

[39] The period of the 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. 7

[40] As Mr Weber’s dismissal took effect on 9 March 2021, the 21-day statutory period expired on 30 March 2021. The application having been received (via post) on 8 April 2021, it is nine days out of time.

[41] The explanation for the delay is that it was caused by the postal service, not by Mr Weber.

[42] This explanation is credible.

[43] Having largely accepted the truthfulness of Mr Weber’s evidence, his conduct on 26 March 2021 was made in good faith. I do not find that Mr Weber back-dated his application or was dishonest in answering question 1.5 of the form F2 to give the impression of acting within time. This is not a matter where an employee has completed and sent their application outside the 21-day period. This is a matter where an employee has informed themselves of their rights well inside the 21-day period, completed the application form at day 17 (four days prior to the 21-day period expiring), asked a family member to post the form that evening on their behalf, and in good faith believed that the form had been posted as requested (which on the balance of probabilities is had been).

[44] Whilst I have not heard evidence from Mr Weber’s father about whether he posted the form that evening, it is plausible that he did so given the request his son made and given that upon his return home nothing was subsequently said between he and Mr Weber to contrary effect.

[45] Given that Mr Weber had posted his application by standard mail, and given the potential for mail delays and that mail deliveries of standard mail are not necessarily daily, it is plausible that his application was placed into a letter box in an Adelaide suburb on the evening of Friday 26 March 2021 but not processed by Australia Post and placed into the Commission post box until about 7 or 8 April 2021. Regrettably, it is not implausible that Australia Post may have taken some twelve to thirteen days to deliver mail sent from suburban Lockleys in Adelaide to a post box in the Adelaide CBD.

[46] Rule 12(2) (b) of the Fair Work Rules 2013 permit applications to be made by post. This is what Mr Weber did. I do not accept that Mr Weber should be disadvantaged for having exercised a lawful right to submit his application by post, even though speedier or more common methods of lodgement exist (e.g. electronic form).

[47] Whilst it may be unusual that a person disconnects themselves from active use of on-line technology, Mr Weber sought to use reasonable work-arounds (phone calls to the Ombudsman, downloading of a form by his mother). He could have posted the letter himself, but his request that his father do so was not unreasonable in the circumstances, and did not contribute to the delay.

[48] However, Mr Weber failed to inform himself of the fact that an application is not lodged when it is dated by an applicant nor when it is posted. By law, it is lodged when received. Whilst Mr Weber was reckless in making an assumption that dating his application was an act of lodgement, he did so four days in advance of the 21-day period. I accept, as a matter of principle, that an employee choosing to lodge an application by post has a duty to provide a reasonable period in advance of posting for delivery to the Commission by postal authorities so as to ensure, so far as possible, the application is filed (received) within 21 days. Had Mr Weber posted his application by standard mail, for example, on the 21^st day, I would not consider that a reasonable course and it would weigh against granting an extension. However, he acted four days in advance of the 21^st day, two days after being given the downloaded form by his mother and on the day or the day after his final payment from THR.

[49] Anticipating when a standard item of mail posted in a suburban letterbox is likely to be delivered by Australia Post in the same capital city is a guessing-game. Providing four days for standard mail to travel seven kilometres (Lockleys to the Adelaide CBD), as Mr Weber did, may be optimistic. However, he had no specialist expertise in knowing or estimating such matters.

[50] Whilst Mr Weber did not turn his mind to these issues and make contingencies, in all the circumstances, I consider that Mr Weber provided reasonable time from the completion of his application and its posting to its possible or likely receipt by the Commission.

[51] The explanation for the delay, and the absence of any significant contribution by Mr Weber to the delay, weighs in favour of granting an extension of time.

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

[52] Mr Weber was aware of his dismissal on 9 March 2021. He was neither confused about the date of dismissal nor the reason for dismissal.

[53] In these circumstances, this is a neutral consideration.

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

[54] Mr Weber took reasonably prompt action to ascertain his rights (from the Ombudsman) and formed a view that he considered himself to have been treated unfairly.

[55] He did not however communicate with the employer after his dismissal, preferring to wait until his final payment was received before making a claim.

[56] In these circumstances, this is a neutral consideration.

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

[57] THR did nothing but comply with its obligations to the Commission. However, the employer did not advance any specific prejudice should an extension be granted. A claim would have to be responded to, involving time and cost. The nature of prejudice in this matter is not unique in any particular respect.

[58] However, the absence of prejudice would not itself be a reason to grant an extension. 8

[59] In these circumstances, this is a neutral consideration.

Merits (section 394(3)(e))

[60] The merits of Mr Weber’s application is likely to concern his attendance record, the impact his absences had on the business, whether his absences were lawfully taken and whether he had sufficient notice to meet the employer’s reasonable expectations on attendance.

[61] I have no evidence on these matters, given the preliminary extension of time issue. It is not possible to conclude whether Mr Weber’s case is weak, strong or arguable.

[62] In these circumstances, this is a neutral consideration.

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

[63] This factor does not arise in this matter.

Conclusion

[64] The period of delay in this matter, nine days, is not insignificant in the context of a 21-day statutory time limit.

[65] The explanation for the delay (an unreliable postal service inside a capital city) is credible. That, coupled with my findings that Mr Weber acted inside the 21-day period, did not significantly contribute to the delay and the absence of particular prejudice to THR, lead me to conclude that Mr Weber has met the onus of establishing exceptional circumstances warranting an extension of time.

[66] Having regard to the factors in section 394(3) of the FW Act, the time for lodgement of application U2021/2963 is extended so as to permit the application to be heard and determined by the Commission.

[67] An order 9 giving effect to this decision is issued in conjunction with its publication.

[68] I also issue a direction in this matter. That direction is that the application be referred to Member Assisted Conciliation in advance of further directions for hearing and determination.

DEPUTY PRESIDENT

Appearances:

Mr R Weber, on his own behalf.

Mr N Taddeo, Ms M Taddeo, and Mr A Corsaro, on behalf of, THR Developments Pty Ltd.

Hearing details:

2021
Adelaide (by telephone)
30 April

Printed by authority of the Commonwealth Government Printer

<PR729123>

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

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

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

 4   [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, at [35]-[45]

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

 7   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

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

 9   PR729124