Zainabu Ontomwa v Southern Cross Care
[2021] FWC 6273
•23 NOVEMBER 2021
| [2021] FWC 6273 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Zainabu Ontomwa
v
Southern Cross Care
(U2021/9343)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 23 NOVEMBER 2021 |
Application for an unfair dismissal remedy - extension of time – application posted within time - delay attributable to mail redirection - exceptional circumstances – extension granted
[1] Zainabu Ontomwa (Ms Ontomwa or the applicant) has applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to a dismissal by Southern Cross Care (Southern Cross, the respondent or the employer) on 21 September 2021.
[2] Ms Ontomwa’s application is dated 30 September 2021. It was recorded as lodged following receipt of an email on 18 October 2021. As set out below, the application had been posted at an earlier date but not received until an electronic copy was emailed.
[3] The application is notionally six days outside the statutory 21-day period for making unfair dismissal claims. Ms Ontomwa submits that it is not out of time and, in the alternative, (if out of time) that an extension should be granted.
[4] On 27 October 2021 the Commission issued directions on the extension of time.
[5] On 28 October 2021 Southern Cross filed a response opposing the application including an extension.
[6] Ms Ontomwa filed materials on 2 November 2021.
[7] I heard the extension of time matter by video on 16 November 2021.
[8] Ms Ontomwa was self-represented and assisted by Mr Kevin Ashley. She gave evidence in support of her application 1, as did Mr Ashley2. Southern Cross was internally represented by Mr Steve Brooks HR Business Partner.
[9] At the hearing’s commencement, I referred to an email sent by my chambers on 28 October 2021 which advised the parties of Commission protocols concerning mailed applications as it concerned the handling of Ms Ontomwa’s application, including:
• that since about April 2020, and in light of COVID-19 risk management, the Adelaide registry of the Commission has been closed to the public. Lodgement of applications over the counter has not been possible; and
• that since about April 2020 the Commission has had mail addressed to its Adelaide registry post office box redirected by Australia Post to a single location in Melbourne, Victoria whereupon items of mail (including applications) are opened and processed by the Commission’s administrative staff.
Facts
[10] I make the following findings.
[11] Southern Cross provides aged care services including at a facility known as Oakfield Lodge in South Australia.
[12] Ms Ontomwa was employed by Southern Cross as a casual registered nurse at Oakfield Lodge.
[13] A dispute arose between Ms Ontomwa and Southern Cross concerning a vaccination mandate for staff working in residential aged care facilities following a direction by the State Co-ordinator for South Australia under the Emergency Management Act 2004 (SA).
[14] Following a refusal by Ms Ontomwa to be vaccinated and an exchange of correspondence, on 21 September 2021 Southern Cross advised Ms Ontomwa that it had decided to “terminate your employment, without notice, for refusing to carry out a lawful and reasonable direction and thereby resulting in a frustration of your employment contract”. 3
[15] On 30 September 2021 Ms Ontomwa completed and dated an unfair dismissal application (F2). She did not send it at that time.
[16] At the time of completing the application, Ms Ontomwa was aware that a 21-day time limit applied for the lodgement of unfair dismissal claims.
[17] On 5 October 2021 Ms Ontomwa decided to post the application to the Commission. She placed a downloaded a hard copy of the completed application in an Australia Post express post envelope, was driven (by Mr Ashley) to the Mount Barker post office where she addressed the express post envelope to the Commission’s South Australian (Adelaide) post box (which she had obtained from the Commission’s web site).
[18] Ms Ontomwa purchased tracking details for the parcel. 4 She tracked the parcel’s progress. On 7 October 2021 she noticed it had been delivered, according to the tracking, to the “post office box ADELAIDE STATION ARCADE”. Then, four days later on 11 October 2021, she was informed by Mr Ashley that it had been delivered to “Port Melbourne Vic”.5
[19] Unbeknown to Ms Ontomwa, as a COVID-19 risk protocol, hard copy mail addressed to the Commission’s Adelaide registry was being redirected to a central location in Victoria for processing. Consistent with the Commission’s redirection arrangement, Ms Ontomwa’s application was redirected by the postal service to Melbourne.
[20] On 11 October 2021 Ms Ontomwa telephoned an Adelaide-based officer of the Commission to ascertain the status of her application because she had not heard from the Commission and was awaiting advice on how and when to pay the filing fee. She was advised that it was not registered on the Commission’s system, that mailed applications to the Commission’s Adelaide address had been redirected to Victoria and that once received by Commission staff her application would be processed.
[21] On 18 October 2021, having not heard further from the Commission, Ms Ontomwa again telephoned the Adelaide registry. Upon being told that no hard copy application had yet been processed she was invited to email her application. She immediately did so to the Adelaide Registry “as another attempt to lodge my application”. Her covering email stated: 6
“I write to you following up upon my application to the Fair Work Commission. As per our telephone conversation today, you confirmed that my 'Form 2' application for Unfair Dismissal has not been scanned and uploaded. Noting the Form 2 and corresponding documents enclosed within my application were registered with Australia Post (tracking number 0201003466260006050991) using Express post on 5th October 2021. Upon tracking my application, I noted that my parcel was received by your office at Port Melbourne on 11th October 2021. On 11th October (the same day), I rang the Fair Work Commission SA office, the person I spoke to confirmed that my documents were received in the Victoria office and would be scanned and sent via electronic means to the SA office for processing. Please see attached screenshot confirming delivery of my Form 2 application.
As a consequence of my conversation with your office today being the 18th October 2021, I have attached the documents to this email as another attempt to lodge my application.
Below is attached the documentation sent to the Fair Work Commission SA. Looking forward to hearing from you.”
[22] Having received the emailed application, the Commission’s Adelaide-based staff immediately processed the application as emailed on 18 October 2021.
[23] A hard copy of the application was subsequently received by Victorian-based Commission staff on 19 October 2021.
[24] Tracking detail of the express post parcel 7 shows it was:
• posted at Mt Barker SA 5 October 2021;
• arrived Adelaide 6 October 2021;
• delivered to post box Adelaide Station Arcade 7 October 2021 (Commission post box);
• arrived Melbourne 9 October 2021;
• arrived Tullamarine and Sunshine West 10 October 2021;
• delivered Port Melbourne 11 October 2021 (Commission central location).
[25] According to the envelope delivered at Port Melbourne, a redirection label had been placed over the handwritten Adelaide address. 8
Submissions
[26] Ms Ontomwa says that an extension of time is not required because receipt of her mailed application at the Commission’s post box in Adelaide on 7 October 2021 and at Port Melbourne on 11 October 2021 were each dates of lodgement.
[27] In the alternative, Ms Ontomwa says that if an extension is required then it should be granted for four reasons:
• she posted the application within time and, but for a redirected postal arrangement of which she was not aware, it would have been lodged in time;
• the delay in receiving her application was due to issues between the Commission and Australia Post, and not any failure on her part;
• she twice actively followed up the status of her application when it became apparent there had been no contact from the Commission; and
• there is no prejudice to the employer should an extension be granted.
[28] Southern Cross submit there are no exceptional circumstances justifying an extension. It contends:
• although there may have been, at the relevant time, a mail redirection between the Commission’s Adelaide post box and Australia Post, Ms Ontomwa nonetheless carries the onus to establish exceptional circumstances warranting an extension of time;
• Ms Ontomwa had email capability and should have sent her application by email on 30 September 2021 when it was completed rather than relying on the less reliable postal service;
• the reason for delay is just one factor. The merits of the application, which challenges the legality of the direction by the State Co-ordinator for South Australia under the Emergency Management Act 2004 (SA) is weak and overrides other considerations; and
• Southern Cross will be put to cost and expense of having to defend a late application that it says is meritless.
Consideration
[29] 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.”
[30] The application can only proceed if the applicant can establish that “exceptional circumstances” exist within the meaning of section 394(3).
[31] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.9
[32] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant10. A decision whether to extend time under section 394(3) involves the exercise of a discretion11.
[33] I apply section 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.”12
[34] The principles of Nulty have been cited with approval by subsequent full benches of the Commission. 13
Status of the application
[35] The application is out of time. Although the FW Rules 2013 permit a document (such as 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 section 394(2) until this occurs. A mailed application is not made when drafted, dated or posted.
[36] 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”.
[37] I do not consider that the moment a postal officer places an application in an external post box leased by the Commission is an act of lodgement. Lodgement only occurs when the mailed application is received within the language of rule 13(2)(b) of the FW Rules 2013 at “an office of the Commission”. Only when received in this sense is an application “made”. 14
[38] The FW Act requires unfair dismissal applications to be “made” within 21 days of a dismissal taking effect, unless time is extended. Given this, I do not consider Ms Ontomwa’s application to have been “made” on either 7 October 2021 or 11 October 2021 when the express post envelope she posted was delivered to the Commission’s post boxes in Adelaide and then Port Melbourne.
[39] It was “made” in the relevant sense when emailed to a Commission officer on 18 October 2021. That was an act of electronic lodgement consistent with rule 12(2)(c) of the FW Rules 2013.
[40] Having not been made until then, the application is six days outside the statutory 21-day time period for filing unfair dismissal claims. If it is to proceed, an extension of time is required.
[41] I now consider each of the factors set out in section 394(3).
Reason for the delay (section 394(3)(a))
[42] 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. 15 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.16
[43] 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.17
[44] 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.18
[45] The evidence clearly establishes, and I so find, that the reason for delay was the postal redirection from the Commission’s Adelaide post box to a central mail location in Victoria and then to the Commission’s post box in Port Melbourne. For the entire period of the six day delay period (13 to 18 October 2021 inclusive) the application was in this redirection phase and then awaiting processing by Victorian-based staff of the Commission. Five days earlier (7 October 2021) the application, as posted, had arrived at the Commission’s Adelaide mail address, only then to be redirected. Whilst the evidence does not disclose who placed the redirection label over the Adelaide postal address handwritten by Ms Ontomwa, the evidence clearly establishes that the application was redirected to Victoria after initially being delivered to the Adelaide post box.
[46] There is no failure on Ms Ontomwa’s part in this delay. The application was posted within time. Had the application not been redirected it would have, in all probability, been made (received) within time by Adelaide-based staff of the Commission given that it was delivered to the post box five days prior to the expiry of the statutory deadline.
[47] Further, twice during the delay period Ms Ontomwa at her initiative contacted the Commission to ascertain the status of her application.
[48] Whilst Ms Ontomwa could have emailed her application shortly after preparing it, rather than posting it, I do not accept that this constituted failure on her part. Making applications by post is one of a number of means by which applications can be made under the FW Act. The Act provides no hierarchy of priority and, in general terms, it would not be reasonable to attribute failure where an applicant utilises a lawful means of lodgement. 19 Whilst an applicant choosing to lodge by post has an obligation to make a reasonable assessment that their application would be likely to be received by the Commission inside the 21-day statutory deadline in order to not be made out of time20, Ms Ontomwa posted her application seven days prior to the 21-day period expiring.
[49] Given that Ms Ontomwa did not know, and could not reasonably have known of the redirection arrangement between the Commission and Australia Post, a period of seven days for delivery of an express post mail application from Mt Barker on the Adelaide fringe to an address in the Adelaide CBD was a reasonable allowance of time.
[50] The explanation for the delay is reasonable.
[51] This weighs in favour of a finding of exceptional circumstances.
Awareness of the dismissal taking effect (section 394(3)(b))
[52] Ms Ontomwa was aware of her dismissal taking effect on 21 September 2021.
[53] She was neither confused about the date of dismissal nor the reason for dismissal.
[54] In the circumstances, this is a neutral consideration.
Action taken to dispute dismissal (section 394(3)(c))
[55] Ms Ontomwa held a view at the time of dismissal that the vaccination mandate imposed by the authorities and her employer was, in her view, wrong and a breach of her rights as a citizen and employee. Upon dismissal, she formed an immediate view of having been treated unfairly.
[56] Given the exchanges of correspondence prior to dismissal advising this position, she did not communicate with the employer after dismissal, preferring to pursue this legal option.
[57] In the circumstances, this is a neutral consideration.
Prejudice to the employer (section 394(3)(d))
[58] Southern Cross did not advance any specific prejudice should an extension be granted. A claim would have to be responded to, involving time and cost. That notwithstanding, the nature of the prejudice in this matter is not unique.
[59] However, the absence of prejudice would not itself be a reason to grant an extension.21
[60] In the circumstances, this is a neutral consideration.
Merits (section 394(3)(e))
[61] The grounds on which Ms Ontomwa challenges fairness of her dismissal appear to be threefold:
• that the direction by the State Co-ordinator for South Australia under the Emergency Management Act 2004 (SA) relied upon by the employer is unlawful on constitutional grounds;
• that the vaccine mandate required by Southern Cross as a condition for continued employment was unlawful discrimination and a breach of contract; and
• Southern Cross failed to consider, address or negotiate the terms on which she was willing to continue in employment by taking alternative measures to vaccination.
[62] Southern Cross consider its vaccination requirement to have been a lawful and reasonable direction, that a challenge to the lawfulness of the State Co-ordinator’s direction is meritless and that its decision to not negotiate that question with Ms Ontomwa was reasonable. It also disputes that Ms Ontomwa served the minimum employment period to be eligible to make a claim.
[63] Whilst a challenge to the constitutionality or lawfulness of the State Co-ordinator’s direction or the employer’s requirement vis-a-vis the employment contract may present some difficulties for Ms Ontomwa given that the Commission does not exercise judicial power, this is not the only basis on which her application is advanced.
[64] The minimum employment question appears to be a matter of the regularity and systematic nature (or otherwise) of Ms Ontomwa’s casual employment.
[65] As I have not tested the evidence or submissions on any of these questions, for the purposes of considering this extension of time request, I consider that the merits of the application may weigh somewhat against an extension of time but only somewhat given that the application is also advanced on the ground of unreasonableness and thus unfairness and not solely on constitutionality or lawfulness grounds. The minimum employment eligibility question is an entirely neutral issue.
Fairness between persons in similar position (section 394(f))
[66] This factor does not arise in this matter.
Conclusion
[67] In the context of a 21-day statutory time limit, the period of delay (6 days) is not inconsiderable.
[68] However, the explanation for delay is reasonable and weighs in favour of an extension.
[69] The merits of the application may in part weigh somewhat against an extension given the Commission does not exercise judicial power, but only somewhat.
[70] Other statutory factors are neutral or not relevant.
[71] Considering these factors overall, and in particular the unusual nature of an application express posted in good time but delayed by a mail redirection over which an applicant did not know and could not have reasonably known, there are exceptional circumstances warranting an extension of time.
[72] I am satisfied that it is appropriate to exercise discretion to extend the time.. There is no unique prejudice to the employer in doing so. Ms Ontomwa did not contribute to the delay. She lodged her application in a timely manner and followed up its progress.
[73] There being exceptional circumstances, the time for lodgement of application U2021/9343 is extended so as to permit it to be further heard and determined.
[74] An order 22 giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
Z Ontomwa, on her own behalf, with K Ashley
S Brooks, on behalf of Southern Cross Care
Hearing details:
2021
Adelaide (by video conference)
16 November
Printed by authority of the Commonwealth Government Printer
<PR735520>
1 Affidavit 1 November 2021 A2; Further Statement 1 November 2021 A3
2 Affidavit 1 November 2021 A1
3 Annexure D to F3
4 A6
5 A2 paragraphs 8 and 10
6 Email 18 October 2021 3.50pm accompanying F2
7 A6
8 A8
9 Smith v Canning Division of General Practice[2009] AIRC 959
10 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
11 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
12 [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
13 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]
14 Hong Ye v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 327, 330 and 332
15 Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
16 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2019] FWCFB 3288, at [35]-[45]
17 Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
18 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
19 Wait v B & K Bulk Haulage[2021] FWC 387 at [45]; Weber v THR Developments Pty Ltd[2021] FWC 2422 at [46]; Shigrov v Key Tubing & Electrical Pty Ltd[2021] FWC 865 at [49]
20 Weber ibid at [48]
21 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
22 PR735521
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