Winnie Wai Ling Leung v Chinese Community Social Services Centre Inc trading as on Luck Chinese Nursing Home
[2015] FWCFB 2106
•31 MARCH 2015
| [2015] FWCFB 2106 [Note: a correction has been issued to this document] |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.400 - Appeal rights
s.604 - Appeal of decisions
v
Chinese Community Social Services Centre Inc trading as On Luck Chinese Nursing Home
(C2015/1483)
SENIOR DEPUTY PRESIDENT ACTON |
|
Appeal against decision [[2015] FWC 88] of Commissioner Gregory at Melbourne on 9 January 2015 in matter U2014/13065- extension of time - exceptional circumstances - permission to appeal granted in the public interest - decision quashed.
Introduction
[1] Set out below are the reasons for a decision we gave in transcript on 19 March 2015 granting permission to appeal in the public interest from a decision 1 of Commissioner Gregory in matter U2014/13065, quashing the Commissioner’s decision and allowing Ms Winnie Wai Ling Leung (Ms Leung) a further period for the making of her unfair dismissal remedy (UDR) application to 7 October 2015.
[2] Ms Leung was dismissed from her employment at Chinese Community Social Services Inc trading as On Luck Chinese Nursing Home (CCSSC) on 15 September 2014.
[3] She made a UDR application to the Fair Work Commission (FWC or Commission) on 7 October 2014 pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act).
[4] A UDR application must be made within 21 days after a dismissal takes effect or within such further period as the FWC allows. Ms Leung and CCSSC agree that her UDR application was made one day late, so it was necessary for her to obtain an extension of time for the making of her UDR application.
[5] Section 394(3) of the FW Act provides that the FWC may allow a further period for a UDR application to be made if satisfied 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.”
Decision at first instance
[6] Commissioner Gregory considered whether Ms Leung should be granted an extension of time for the making of her UDR application.
[7] In respect of “the reason for the delay”, the Commissioner said:
“[21] The reason for the delay relied upon by Ms Leung is set out in the summary of the evidence and submissions provided by Ms Leung and her husband. I have no reason to doubt she has been depressed and anxious as a result of the events surrounding her initial suspension and subsequent termination from employment. The car accident she was involved in was undoubtedly a significant event for her as well. In addition, her limitations with the English language and her inability to afford legal representation inevitably made it more difficult to complete and file her unfair dismissal application.
[22] However, I am also satisfied that these factors taken individually or even in combination, do not constitute ‘exceptional circumstances’…
[24] Ms Leung was able, with the assistance of her husband, to complete her application by 1 October, 5 days before it was due to be filed. It follows, therefore, that none of the factors she relies upon prevented her application from being completed in adequate time to ensure it was then lodged within the required period. She also indicated in cross examination she was aware it was required to be lodged within this 21 day period.
[25] Her husband said there were then delays in filing because he was busy and preoccupied with other matters. He also indicated he was aware of the 21 day period. He finally went to the post office on 3 October and was given information which led him to believe the application, if posted that day, would be received by the Commission on 6 October. However, this did not occur.
[26] Mr Lo later discussed this situation with Australia Post and was directed to the customer service team. His understanding of the explanation they provided was that mail for the Fair Work Commission was sent to a central collection point and then collected by courier for delivery to the Commission. He seemed to be of the view that the Commission was responsible for this last stage of the process involving the courier. However, until the mail is finally delivered to the Commission those processes are the responsibility of Australia Post and I am not satisfied there is anything unusual or exceptional in circumstances involving delay in mail deliveries.
[27] Mr Lo was aware of the requirement to have the application filed by 6 October and had the means, including personal delivery, to ensure this occurred. I am satisfied he had a genuine belief the actions he took would enable the application to be filed within the 21 day period. However, I am not satisfied there is anything exceptional in an application not being filed within time because of a postal delay, particularly when the application is posted so close to the due date.” 2
[8] In respect of whether Ms Leung first became aware of the dismissal after it had taken effect, the Commissioner found she was informed by letter of her dismissal on the day that it took effect and so the matter in s.394(3)(b) did not appear to be of any significance.
[9] On the matter of any action taken by Ms Leung to dispute the dismissal, the Commissioner found the making of her UDR application was the principal action taken by her in this regard and the nature of her UDR application indicated a significant amount of work and preparation went into it. Accordingly, the Commissioner decided he had no reason to doubt Ms Leung had disputed the circumstances surrounding her dismissal from the time it occurred.
[10] On the matter of prejudice to CCSSC (including prejudice caused by the delay), the Commissioner decided that given there was a delay of only one day in the making of the UDR application, the extent of any such prejudice could be considered to be limited.
[11] In respect of the merits of the UDR application, the Commissioner decided he was unable to form a clear view about the merits on the basis of the submissions and evidence before him.
[12] In respect of fairness as between Ms Leung and other persons in a similar position, the Commissioner noted that neither Ms Leung or CCSSC had made submissions suggesting this consideration was of particular importance.
[13] The Commissioner concluded as follows:
“Conclusion
[34] Ms Leung’s application was lodged only one day outside the 21 day time period. This factor alone could be said to provide justification to exercise the discretion to grant additional time to make her application. However, previous decisions of this Tribunal have emphasised that the requirement to comply with prescribed time limits is not a mere technical requirement, but constitutes a failure to comply with the substantive legislative provisions. The legislation also makes clear it is only in exceptional circumstances that the Commission should exercise the discretion available to it to extend the time for making application.
[35] I have considered all the evidence and submissions provided in this matter. I have also had regard to each of the considerations in s.394(3) I am required to take account of, and the authorities relevant to the determination of this matter. Ms Leung was able to complete her application by 1 October, which was 5 days prior to the end of the 21 day period. The failure to then act and immediately forward the application to the Commission meant it was received one day after the 21 day period. Nothing ‘exceptional’ prevented it from being sent earlier. It is also acknowledged the postal service contributed at this point to the delay. However, this is not an unusual occurrence.
[36] In conclusion, I am not satisfied there is anything ‘exceptional’ in all the circumstances of this matter that contributed to [sic] application being received by the Commission one day late. Therefore, it is not appropriate to exercise the Commission’s discretion to extend the time in which to make application. The application is accordingly dismissed.” 3
Notice of appeal
[14] Ms Leung has filed a notice of appeal against the Commissioner’s decision refusing her an extension of time for the making of her UDR application and consequentially dismissing her UDR application. The appeal is opposed by CCSSC.
[15] Section 400(1) of the FW Act provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a “significant error of fact” (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and Others, 4 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”.5 The Commission must not grant permission to appeal unless it considers that it is “in the public interest to do so”.
[16] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 6 In GlaxoSmithKline Australia Pty Ltd v Makin,7 a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 8
[17] The fact that a Member of the Commission at first instance has made an error is not necessarily a sufficient basis for the grant of permission to appeal. 9
[18] There was evidence before the Commissioner that Ms Leung’s UDR application was posted in an Australia Post “Express Post” envelope from the “Blackburn Post Shop”, being the Australia Post Blackburn Post Office, at 10.16 am on Friday, 3 October 2014. The envelope was addressed by its sender to “Fairwork Commission Level 4, 11 Exhibition Street, Melbourne Vic 3000”. The address on the “Express Post” envelope was subsequently altered by staff of Australia Post so that it was diverted in its delivery from the original address (11 Exhibition Street) for delivery to the Commission’s GPO box address. This occurred without Ms Leung’s consent or knowledge.
[19] The “Express Post” envelope has information provided by Australia Post on it which states that “[d]elivery is guaranteed to occur the next business day only within the Express Post network”. The “Express Post” envelope also advises senders to make sure the delivery address and sender’s details are correct and complete, that the envelope can be posted at any Australia Post retail outlet or any yellow street-posting box, and to check posting times at the outlet or on the yellow street-posting box to make sure of next business day delivery.
[20] The FWC address which was put on this “Express Post” envelope is within the Express Post network. The next business day from Friday, 3 October 2014, when the envelope was posted, was Monday, 6 October 2014 and the “Express Post” envelope was posted at a relevant outlet.
[21] It is clear that if the “Express Post” envelope containing Ms Leung’s UDR application had been delivered to the FWC on 6 October 2014, Ms Leung’s UDR application would have been made within 21 days of her dismissal, she having been dismissed on 15 September 2014. However, the envelope was not delivered to the FWC until 7 October 2014.
[22] The Commissioner’s reasoning as set out in his decision on Ms Leung’s UDR application does not indicate the Commissioner considered that the “Express Post” envelope containing her UDR application advised that its “delivery is guaranteed to occur the next business day”. Nor did he consider that the envelope was posted with a delivery address and sender details, and at a time and from a location, which were consistent with those advised to senders on the envelope.
[23] CCSSC submitted to us that when one avails oneself of the detailed terms of the guarantee afforded by Australia Post in respect of the delivery of an “Express Post” envelope, it is apparent the guarantee is not actually for the delivery of the envelope to the address on it by the next business day.
[24] This submission of CCSSC may be correct. However, 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.
[25] As we have indicated, the decision subject to appeal does not disclose that, in considering the reason for the delay in the making of Ms Leung’s UDR application, the Commissioner took into account the failure of Australia Post to deliver the “Express Post” envelope containing her UDR application in accordance with the guarantee for next business day delivery suggested on the envelope.
[26] We think this was a significant matter relevant to the reason for the delay and the Commissioner erred in failing to so consider it. There is no sound reason for us to conclude the Commissioner would still have been not satisfied there were the requisite exceptional circumstances if he had considered it.
[27] In light of the error we have identified, we consider it is in the public interest for us to grant permission to appeal from the Commissioner’s decision. We do so. We will consider whether Ms Leung should be granted a further period for the making of her UDR application.
Extension of time
[28] We have earlier set out the provisions of s.394(3) of the FW Act. We turn to deal with them.
Reason for the delay (s.394(3)(a))
[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 suggeste
[30] d on the “Express Post” envelope. Ms Leung has therefore provided an acceptable reason for the delay.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
[31] Ms Leung did not first become aware of her dismissal after it had taken effect.
Any action taken by the person to dispute the dismissal (s.394(3)(c))
[32] Ms Leung did not take any action to dispute her dismissal other than making her UDR application.
Prejudice to the employer (including prejudice caused by the delay) (s.394(3)(d))
[33] In respect of prejudice, CCSSC submits it is a not-for-profit aged care and welfare services provider which should not be put to the cost and inconvenience of defending an unmeritorious UDR application lodged out of time. They submit that this is particularly so when its elderly residents may be required to give evidence and the delay caused by Ms Leung will have impacted prejudicially on their ability to remember relevant events and when one of the potential witnesses with dementia has passed away.
[34] Ms Leung made no submissions in respect of prejudice.
[35] We consider the prejudice to CCSSC including prejudice caused by the delay is limited. We have come to this view as the UDR application was made only one day out of time, the CCSSC submissions on prejudice are partly based on its view of the merits of Ms Leung’s application and because of the speculative nature of the other CCSSC submissions on prejudice.
The merits of the application (s.394(3)(e))
[36] On the limited material before us going to the merits of Ms Leung’s UDR application, we are unable to conclude Ms Leung’s UDR application is without merit.
Fairness as between the person and other persons in a similar position (s.394(3)(f))
[37] Ms Leung made no submission on the matter of fairness as between her and other persons in a similar position.
[38] CCSSC submitted in this regard that it would be unfair to others who have made their UDR application within the 21 days of their dismissal using an “Express Post” envelope to grant Ms Leung an extension of time for the making of her UDR application.
[39] In our view, the CCSSC submission does not establish an issue of fairness as between Ms Leung and other persons in a similar position. This matter is not relevant to Ms Leung’s UDR application.
Conclusion
[40] Taking the above matters under s.394(3)(a) to (f) of the FW Act into account, we are satisfied that Australia Post’s failure to deliver to the FWC the “Express Post” envelope containing Ms Leung’s UDR application in accordance with the guarantee of next business day delivery suggested on the envelope, in the context of our findings on the other matters in s.394(3), constitutes exceptional circumstances.
[41] It is therefore necessary for us to consider whether we should exercise our discretion under s.394(3) in favour of allowing Ms Leung a further period for the making of her UDR application. Since Ms Leung’s UDR application would have been made to the FWC within time but for Australia Post’s failure and the matters telling against allowing the extension of time are limited, we have concluded we should allow Ms Leung a further period for the making of her UDR application to the day it was made, being 7 October 2014.
[42] We therefore quash the decision of Commissioner Gregory refusing Ms Leung an extension of time for the making of her UDR application in matter U2014/13065 and dismissing that UDR application.
[43] An order 10 giving effect to our decision is being issued at the same time as these reasons for decision.
[44]
Ms Leung’s UDR application in matter U2014/13065 will be referred to the FWC Panel Head for termination of employment matters for further processing.
SENIOR DEPUTY PRESIDENT
Appearances:
W. Leung on her own behalf.
J. Kwok, solicitor, for Chinese Community Social Services Inc trading as On Luck Chinese Nursing Home.
Hearing details:
2015.
Melbourne:
March 19.
1 Winnie Wai Ling LeungvOn Luck Chinese Nursing Home T/A Chinese Community Social Services Centre Inc, [2015] FWC 88.
2 Ibid.
3 Ibid.
4 (2011) 192 FCR 78.
5 Ibid at paragraph 43.
6 O’Sullivan v Farrer, (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch, (2011) 85 ALJR 398 at paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and Others, [2011] FCAFC 54 at paragraphs 44 - 46.
7 (2010) 197 IR 266.
8 Ibid at paragraph 27.
9 GlaxoSmithKline Australia Pty Ltd v Makin,[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth,[2010] FWAFB 10089 at paragraph [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and Others, [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office,[2014] FWCFB 1663 at paragraph [28].
10 Winnie Wai Ling Leung v Chinese Community Social Services Centre Inc trading as On Luck Chinese Nursing Home, PR9562519.
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