Winnie Wai Ling Leung v On Luck Chinese Nursing Home T/A Chinese Community Social Services Centre Inc

[2015] FWC 88

[2015] FWC 88 [Note: An appeal pursuant to s.604 (C2015/1483) was lodged against this decision - refer to Full Bench decision dated 31 March 2015 [[2015] FWCFB 2106] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Winnie Wai Ling Leung
v
On Luck Chinese Nursing Home T/A Chinese Community Social Services Centre Inc
(U2014/13065)

COMMISSIONER GREGORY MELBOURNE, 9 JANUARY 2015

Application for extension of time.

Introduction

[1] Ms Winnie Wai Ling Leung was dismissed from her employment at the On Luck Chinese Nursing Home T/A Chinese Community Social Services Centre Inc (“the Nursing Home”) on 15 September 2014. She had worked at the Nursing Home as a personal care assistant since July 2011. It is also noted at this point that Ms Leung is referred to in some of the materials as Mrs Lo.

[2] With the assistance of her husband she then prepared and lodged an unfair dismissal application. It was dated 1 October 2014, but was not received by the Commission until 7 October, 1 day after the 21 day period provided for in the Act.

[3] Ms Leung makes reference to various reasons that caused her application to be lodged outside of the requisite time period. She wants to proceed with her application and seeks to have the Commission exercise its discretion to extend the time in which to make application.

[4] Mr Jasper Kwok was granted leave to appear on behalf of the Nursing Home on the basis it would enable it to be represented effectively, given that the Chairman and CEO was unable to attend the proceedings due to illness

The Issue to be Determined

[5] Section 394(3) of the Act provides that the Commission may allow a further period in which to make application if it is 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.” 1

[6] Therefore, are there “exceptional circumstances” involved in this matter, having regard to each of the matters in s.394(3) the Commission must take account of, to warrant the exercise of its discretion to grant Ms Leung additional time in which to make her unfair dismissal application?

The Evidence and Submissions

[7] Ms Leung provided a statement in support of her application which makes reference to various reasons as to why the application was not lodged until 7 October. She said she has been depressed since initially being suspended from her employment and has since consulted a psychologist. She provided a statement from a psychological counsellor during the course of the proceedings, dated 18 November 2014, which states he first saw Ms Leung on 9 September after she was referred to him by her General Practitioner. The statement indicates in part:

“Initial assessment indicates that Mrs. Lo suffers from mixed anxiety and depression. Mrs. Lo explained to me that she has not been treated fairly at work that creats (sic) emotional and psychological problem to her.

After therapeutic intervention, her situation has somewhat improved but remains unstable at different stages. From a psychological point of view, due to her ongoing anxiety and depression, Mrs. Lo needs continuous therapeutic support and counselling. She is advised to keep on receiving psychological treatment.” 2

[8] Ms Leung also stated she had a car accident on 29 September 2014, which made her more depressed. She also states her English is poor, which made it difficult for her to prepare the application. She also said she was not able to afford the cost of a solicitor because her husband is studying and only working on a part-time basis.

[9] She said her husband did assist in preparing the application and intended to mail it to the Commission on 2 October, but he was busy and unable to get to the post office. She understood it was eventually sent by post on the next day, on the basis of an understanding from the post office it would arrive by Monday, 6 October.

[10] Ms Leung indicated in cross examination she was aware of the requirement to file the application by 6 October and it would have been completed and filed at an earlier time if not for the reasons referred to. She also stated in cross-examination she believed the decision to terminate her employment was not reasonable, and she still does not understand why she is no longer working at the Nursing Home.

[11] A statement was also provided by Ms Leung’s husband, Mr Simon Lo. He states he went to the Blackburn post office at 10:00 a.m. on Friday, 3 October to mail the application. He asked whether it would arrive on Monday, 6 October and states he was told it would. He therefore sent the application by Express Post on that day. He was subsequently advised by the Commission the application had been received one day after the 21 day period.

[12] He states he then went back to the Blackburn Post Office to enquire why the Express Post mail had been delayed and asked for a copy of the track record. He states he was subsequently referred to the Customer Service Team at Australia Post, who indicated it was sent to the Fair Work Commission post office box and later collected by courier and delivered to the Commission, which was the reason why it was not received until 7 October. Mr Lo said if he was aware the application was to be delayed in this way he would have delivered it in person by 6 October.

[13] Mr Lo states he did his best to complete and file the application, given he was busy and under pressure due to the nursing course he is currently undertaking, his part time work, and his family responsibilities.

[14] Mr Lo also indicated in cross examination that the application, which is dated 1 October, had been completed by that date and was ready to post. He had endeavoured to email it but the file was too large and would not upload. He also indicated in cross examination he woke up late on 2 October, and then had to go to work, so was unable to post the application on that day.

[15] The Nursing Home submits none of the reasons provided by Ms Leung constitute “exceptional circumstances” to justify the Commission exercising its discretion to extend the time to make application. It also submits both Ms Leung and her husband were aware the application was required to be lodged by 6 October, but did not avail themselves of a means of lodgement to ensure it was lodged by that date. It also submits that previous decisions have established that the failure of an application, posted one day before the last day of the statutory time period, to arrive within that period is unremarkable. In its submission there is nothing exceptional about post being delayed by one day and there will always be a possibility that a postal item is not delivered as promised.

[16] It also submits none of the reasons relied on by Ms Leung concerning her depression, being unable to afford legal fees, her language barrier, and the car accident, prevented her from completing and signing the application by 1 October 2014. Therefore, those same reasons cannot be relied upon to explain why she was unable to lodge the application within the prescribed time period.

[17] The Nursing Home also dealt with the other considerations in s.394(3) that the Commission is required to take account of. It submits Ms Leung was made aware of her dismissal on the day it took effect by means of a dismissal notice delivered to her by courier on the day the dismissal took effect. It also submits the only action taken by Ms Leung to dispute her dismissal was the application eventually lodged with the Commission.

[18] The Nursing Home also submits Ms Leung’s dismissal was not harsh, unjust or unreasonable. It submits it arose from a complaint made to senior staff in July 2014, which was subsequently investigated. That investigation concluded in early September 2014 and two meetings were held with Ms Leung as part of that process, which was carried out with the assistance of an external human resources consultant. It also submits it will be significantly prejudiced if Ms Leung is given additional time in which to make her application, given it is a not-for-profit organisation involved in the care of financially disadvantaged elderly residents.

Consideration

[19] As indicated, in coming to a decision in this matter I am required to take account of each of the matters in s.394(3) of the Act. In addition, the question of what is required to constitute “exceptional circumstances” has been considered in a number of decisions of this Tribunal. For example, the Full Bench in the matter of Nulty v Blue Star Group Pty Ltd 3 concluded:

“[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.” 4

[20] I now turn to deal with this matter by reference to the considerations in s.394(3) the Commission must take account of, and the authorities that are relevant to the determination of this application.

(a) the reason for the delay

[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.” The decision of Commissioner Roe in Ms Susan Rose v BMD Constructions Pty Ltd 5 has been referred to in a number of matters in response to Applicants who rely on the shock and trauma associated with their dismissal as the reason for the delay in making an application. Commissioner Roe stated in that decision:

“[9]The evidence of the Applicant does not suggest that she was incapable of taking any action in respect to her dismissal during the two weeks following the dismissal. She was not hospitalised. She says that she was shocked and traumatised but there is no suggestion of incapacity. The Applicant provided a medical certificate dated 16 December 2010 stating that ‘Susan Rose tells me she was dismissed from her job in September 2010 and has reported to me this has produced anxiety/depression.’ This is not strong evidence of incapacity to act during the two week period immediately following the dismissal.

[10]It is common for employees to suffer shock and trauma as a result of dismissal from employment. The evidence in this case of the level of incapacity is insufficient to create abnormal circumstances which would justify an extension of time.” 6

[23] By contrast Commissioner Cribb in the matter of Rowe v V/Line Pty Ltd 7 granted additional time to make application, based on the Applicant’s medical condition. However, she did so in circumstances where she concluded that the medical evidence indicated the Applicant was completely incapable of making rational decisions during the statutory time period because of a post traumatic stress disorder he suffered from. That is a very different situation from the present matter.

[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.

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

[28] This does not appear to be an issue of any significance. Ms Leung was informed by letter of her termination on the day it took effect.

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

[29] The principal evidence of the action taken by Ms Leung to dispute her dismissal was the filing of her unfair dismissal application. However, the nature of the application indicates a significant amount of work and preparation went into compiling the application and the associated supporting materials. I have no reason to doubt Ms Leung has disputed the circumstances surrounding her termination from the time it occurred.

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

[30] There will always be some prejudice to an employer if the discretion to grant additional time in which to make application is exercised, given the employer will then be required to prepare to respond to the application. The Nursing Home also submits that because it is a not-for-profit organisation, and elderly patients could potentially be required to give evidence in any future proceedings, it will incur additional prejudice if Ms Leung is allowed to proceed with her application. I am not convinced a not-for-profit organisation is entitled to be treated any differently from another employer in terms of its employment responsibilities. Given the delay of only one day in lodging the extent of any prejudice can be considered to be limited.

(e) the merits of the application

[31] The submissions and evidence in the proceedings do not enable a clear view to be formed about the respective merits of this matter. The Nursing Home submits Ms Leung’s termination only came about following a proper investigation, and that process involved her being interviewed on at least two occasions. It submits her dismissal was not harsh, unjust or unreasonable. Ms Leung clearly has a different view and claims she is still unclear as to why she was terminated.

[32] As indicated, I am unable to form a clear view about the respective merits of the matter on the basis of the submissions and evidence now before the Commission. However, I also note a Full Bench of the Commission has previously found it is not necessary to embark on a detailed consideration of the substantive case in an application of this kind. 8 The Full Bench also noted in that matter while the issue of merit is important, exercise of the discretion to grant additional time should have primary regard to the circumstances that led to the late lodgement.

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

[33] Neither party made submissions suggesting this consideration was of particular importance in the present matter.

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 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.

COMMISSIONER

Appearances:

Ms Leung appeared on her own behalf.

Mr Jasper Kwok appeared on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

21 November.

 1   Fair Work Act 2009 (Cth) at s.394(3)

 2   Medical Certificate dated 18 November 2014 signed by Johnny Leung Sek-Nin handed up during proceedings by the Applicant

 3   [2011] FWAFB 975

 4   Ibid at [13]

 5   [2011] FWA 673

 6   Ibid at [9]-[10]

 7   [2013] FWC 5415

 8   Kyvelos v Champion Socks Pty Limited (Print T2421)

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