Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - application posted on twenty first day after dismissal - whether exceptional circumstances - application dismissed

• [1] Anna Marie Winen (Ms Winen 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 Kemp Recruitment Pty Ltd (Kemp Recruitment, the respondent or the employer).

• [2] Ms Winen's application indicates her dismissal took effect on 8 October 2021. The employer says it was 11 October 2021. For reasons considered below, it was 8 October 2021.

• [3] Ms Winen's application is dated 29 October 2021. It was received by the Commission on 2 November 2021.

• [4] The application is four days outside the statutory 21-day period for making unfair dismissal claims. Ms Winen seeks an extension of time.

• [5] On 10 November 2021 the Commission issued directions.

• [6] Ms Winen filed materials on 8 and 22 November 2021.

• [7] On 16 November 2021 Kemp Recruitment filed a response opposing the application including the extension of time.

• [8] I heard the extension of time matter on 6 December 2021.

• [9] Ms Winen was self-represented. She gave evidence in support of her application. Kemp Recruitment was represented by its Chief Executive Officer, Mr Michael Kemp, who also gave evidence.

• [10] I make the following findings. My findings about the events of 8 and 11 October 2021 are largely based on the evidence of Ms Winen. Kemp Recruitment could have but did not call Ms Winen's manager Ms Higgins who was the other party to conversations on those days.

• [11] Kemp Recruitment is a recruitment agency including for businesses in the health sector.

• [12] Ms Winen lives in suburban Adelaide. She was employed by Kemp Recruitment as a casual registered nurse. She was placed at a number of client hospitals. At the time of dismissal she had been working in the emergency department at Ashford Hospital in Adelaide.

• [13] Ms Winen had access to an app provided by Kemp Recruitment whereby she was notified of future shifts.

• [14] Ms Winen's last shift at Ashford Hospital was on 7 October 2021. The employer believes it was 8 October but I prefer Ms Winen's evidence on that point. Kemp Recruitment produced no business records to clarify the position. The date 7 October 2021 is more plausible given the conversation that occurred the following day.

• [15] On 7 October 2021, Ms Winen noticed she was rostered at Ashford Hospital for the following four or five days. However, either following that shift or the following morning Ms Winen noticed that her forward shifts had been removed from the app. She also noticed that her permissions to use the app appeared to have been withdrawn. Ms Winen telephoned her manager, Ms Higgins seeking an explanation. Ms Higgins advised Ms Winen that her shifts had been removed following a complaint by Ashford Hospital about alleged non-compliance with policies and procedures, and that she would not be offered future shifts in light of this and past issues of concern.

• [16] Ms Winen was shocked and felt physically ill. Over the weekend of 9 and 10 October she decided to again take it up with Kemp Recruitment. On 11 October 2021 Ms Winen telephoned Ms Higgins. She sought confirmation whether Kemp Recruitment's decision related to all future work or just work at Ashford Hospital. She also wanted a better explanation and a further chance. In this further telephone conversation, Ms Higgins told Ms Winen that the decision had been made and that it related to future work.

• [17] Between 14 and 24 October 2021 extensive communication by text and email occurred between Ms Winen and Ms Higgins.[1] Approximately sixteen messages were sent in this ten day period by Ms Winen and approximately five replies by Ms Higgins. In those messages Ms Winen protested her treatment by Kemp Recruitment, protested her dismissal, made it clear that she did not resign and sought details of the complaint and the complainant. For her part, Ms Higgins reaffirmed that the decision was soundly based and that no further work would be offered. Ms Winen advised Kemp Recruitment around 22 October 2021 that she was taking legal advice, considered it an unfair dismissal and "look[ed] forward to seeing you answer this in court".[2]

• [18] Ms Winen had, in the two week period immediately following dismissal, spoken to a friend with legal knowledge. She was made broadly aware of unfair dismissal rights. Approximately one week prior to posting her claim, Ms Winen obtained further legal advice from a professional organisation referred to her by the Commission (Ms Winen believes it to have been the Working Women's Centre). She had two telephone discussions with a legal adviser from the organisation. She was again informed of unfair dismissal rights, informed of a 21-day rule for filing claims, informed how to obtain information about making a claim (via the Commission web site) and informed that extensions can sometimes be granted for late claims.

• [19] Ms Winen was not sure whether she could cope with the pressure of making a claim and fighting Kemp Recruitment in the Commission. She tossed the matter up in the week commencing 25 October 2021.

• [20] On Friday 29 October 2021, the twenty-first day after dismissal, Ms Winen decided to proceed to make a claim. Though she had internet access via her mobile phone, her home computer was not working. She went to the local library where she accessed the Commission web site, downloaded the unfair dismissal form and completed and dated the application by hand (including a request for a lodgement fee waiver).

• [21] Ms Winen decided to send the application by facsimile from the library. The transmission was unsuccessful. She then decided to send it by post. She went next door to the Para Hills post office and sent her application by express post, addressed to the Commission's Adelaide address obtained from the web site.

• [22] Ms Winen had also noticed on the Commission's web site that applications could be sent by email but having handwritten her application, she felt it best to facsimile or post the handwritten form.

• [23] Tracking details of the express post parcel were purchased. The tracking indicates:

• Processed Australia Post Para Hills Post Office 29 October 2021 11.27am
• Arrived in Adelaide 31 October 2021 1.49pm
• Delivered to Adelaide Post Box 1 November 2021 8.50am

• [24] Ms Winen's express post parcel was collected by a Commission officer the following day (2 November 2021).

• [25] Three days later (5 November 2021) the Commission granted Ms Winen a waiver of the lodgement fee.

• [26] Ms Winen says that an extension of time should be granted for the following reasons:

• She posted the application on the twenty-first day;

• She was physically unwell from the emotional stress of being dismissed and only well enough to make a decision to bring the claim late in the twenty-one day period;

• Her home computer was not working and she tried to send her application by facsimile on the twenty first day but the facsimile did not transmit;

• She had put the employer on notice multiple times after dismissal about her discontent with its decision and her intent to litigate; and

• She was not responsible for any delays in the postal service or in the Commission collecting its mail.

• [27] Kemp Recruitment submit there are no exceptional circumstances justifying an extension of time. It contends:

• Ms Winen took no action to make a claim until the twenty first day;

• Ms Winen knew of the twenty-one day rule but still chose to post on the twenty first day thus guaranteeing a late application;

• Ms Winen had access to legal support and advice from two sources but still lodged a late application;

• Kemp Recruitment responded to Ms Winen's post-dismissal communications with a consistent position during the twenty-one day period meaning she knew where the employer stood; and

• Kemp Recruitment should not have to expend costs in defending a late application.

• [28] Section 394(3) of the FW Act provides:

(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:

(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

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

• [29] The application can only proceed if the applicant can establish that "exceptional circumstances" exist within the meaning of section 394(3).

• [30] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[3]

• [31] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant[4]. A decision whether to extend time under section 394(3) involves the exercise of a discretion[5].

• [32] 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."[6]

• [33] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[7]

• [34] I have found that Ms Winen was dismissed on 8 October 2021 when her previously notified shifts were removed from the work app, when she had her permissions to access the app withdrawn and when she was informed by Kemp Recruitment that she would not be offered shifts. Her discussion with Ms Higgins on 11 October 2021 was confirmation of this position, but the date dismissal took effect was when the decision, having been made, was first communicated to Ms Winen. That was 8 October 2021.

• [35] In these circumstances, the application is four days out of time.

• [36] 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.

• [37] Lodgement only occurs when a posted application is received according to 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".[8] Nor is placement by a postal officer in an external post box an act of lodgement.

• [38] In this matter, tracking details indicate Ms Winen's application was placed by Australia Post in the Commission's post box on 1 November 2021 and collected by a Commission officer the following day.

• [39] Thus, Ms Winen's application was "made" in the relevant sense when received on 2 November 2021.

• [40] Having not been made until then, the application is four days out of time. 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).

• [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.[9] 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.[10]

• [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.[11]

• [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, when assessing whether the explanation for the delay is acceptable or credible regard may be had to any circumstances from the date the dismissal took effect.[12]

• [45] The delay period is the four days 29 October 2021 to 2 November 2021 (inclusive).

• [46] The delay period was caused by Ms Winen not posting her application until the final day of the 21-day period. Ms Winen advances three reasons for doing so:

• that she was physically unwell from the emotional stress of being dismissed until shortly before making the application;

• that her home computer was not working and she tried to send her application by facsimile on the twenty first day but the facsimile did not transmit; and

• that she was not responsible for any delays in the postal service or in the Commission collecting its mail.

• [47] A dismissed employee experiencing stress and anxiety after being dismissed is common, not unusual. Without more, it does not point to an exceptional circumstance.[13]

• [48] I accept Ms Winen's evidence that she was feeling unwell from the emotional stress of being dismissed; in her words, "I took a while to get my act together".[14] However, Ms Winen led no medical evidence of the extent of her unwellness and whether it materially affected her ability to assess her rights. It did not appear to impede her ability to seek information from a legal friend and then obtain advice from legal advisers in the week prior to posting her application.

• [49] Overall, this does not point to exceptional circumstances.

• [50] I accept Ms Winen's evidence that her home computer was not operating in the period following dismissal. However, Ms Winen had internet access via her mobile phone. She also had access to a desktop (and a printer) at the local library. Given the availability of these workarounds, the inoperative home computer was not the reason for delay and is not an exceptional circumstance.

• [51] That Ms Winen attempted to send her application by facsimile from the local library on 29 October 2021 means that had the facsimile been received, her application would have been lodged in time. In the abstract, this weighs somewhat in Ms Winen's favour.

• [52] However, it was not received. For reasons unknown, the transmission from the library did not transact. Not having received a confirmation of a successful transmission, Ms Winen knew at the time that her application had not been sent by facsimile. That a short time later she posted her application is evidence of her knowledge that the facsimile had not transmitted.

• [53] In this context, the attempt to file by facsimile weighs somewhat but not significantly in favour of an extension.

• [54] Ms Winen says that she was not responsible for any delays in the postal service or in the Commission collecting its mail.

• [55] This submission is misconceived. There were no delays in the postal service. It was Ms Winen who posted her application on the final day of the twenty-one day period. Whilst it is to Ms Winen's credit that she used the express post service rather than standard mail, given that express post is not same day delivery, Ms Winen's action in posting on the last day guaranteed that her application would be received late.

• [56] An applicant lodging by post has an obligation to make a reasonable assessment that their application would likely be received by the Commission inside the 21-day statutory deadline in order to not be out of time.[15] A failure to do so renders the applicant's conduct less reasonable and thereby a reason for delay based upon delays (if any) once the item is posted is less weighty.

• [57] In posting on the last day Ms Winen took insufficient care to ensure her application would be received in time. She was aware in advance of the twenty-one day rule. She had access to and received legal advice in that final week. Whilst it was understandable that she was tossing around her ability to manage the stress of litigation, that was a decision in her control. She took time even though the Commission web site displays the following alert:

"Australia Post is experiencing delays because of COVID-19. If you can't lodge electronically and you need to post your application, make sure you allow extra time for postal services. The 21 day time limit for lodgement still applies".

• [58] Even after the failed facsimile attempt, Ms Winen could have sent her application online. Ms Winen's decision not to send electronically from the library was a matter of personal convenience. That she had downloaded the form and handwritten her application is no adequate explanation. The handwritten application could have been scanned and sent online.

• [59] In the abstract, given that both posted and emailed applications are permitted by the FW Act, Ms Winen is not to be criticised for mailing her application. In general terms, it is not reasonable to attribute failure where an applicant utilises a lawful means of lodgement.[16] I also take into account that Ms Winen had no specialist knowledge or insight into such matters.

• [60] However, in context, Ms Winen did not post until the final day and this was unreasonable.

• [61] Nor were there undue delays in the Commission collecting its mail. Whilst officers could have done so on 1 November 2021 once mail (including Ms Winen's application) was delivered by Australia Post into the post box at 8.50am that morning, they did so on 2 November 2021. At best, this delay (which is not attributable to Ms Winen) accounts for one day of the four day delay period.

• [62] Considered overall, the reasons for delay do not point to exceptional circumstances.

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

• [63] Ms Winen was aware from 8 October 2021 that her shifts had been removed, her app permission had been withdrawn and that a decision to not offer further shifts had been made.

• [64] Whilst communication over the next fortnight cast some limited additional light on the dismissal, Ms Winen knew she had been taken off the shift roster from 8 October 2021.

• [65] In the circumstances, this is a neutral consideration.

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

• [66] Ms Winen held a view at the time of dismissal that she had been wronged. That view intensified over the next fortnight of communication with Kemp Recruitment. When Ms Winen failed to have the decision reversed, she put Kemp Recruitment on notice that she intended to litigate.

• [67] That Ms Winen was active in protesting her dismissal and seeking restoration of shifts and explanations for the decision means that Kemp Recruitment could not reasonably have been surprised when these proceedings were filed and served.

• [68] This factor weighs somewhat in Ms Winen's favour.

• [69] Kemp Recruitment 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 is not unique. The employer was on notice after dismissal that its decision was being disputed and litigation threatened.

• [70] However, the absence of prejudice would not itself be a reason to grant an extension.[17]

• [71] In the circumstances, this is a neutral consideration.

• [72] I have not heard the merits of the matter. The merits will concern not only the merits of the complaint communicated to Kemp Recruitment by Ashford Hospital, but also Kemp Recruitment's decision not to offer shifts to Ms Winen at any other hospital.

• [73] Both Ms Winen and Kemp Recruitment hold divergent views on the merits.

• [74] In these circumstances, and given that a merits hearing would be reliant in part on evidence I have not heard, this is a neutral consideration.

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

• [75] This factor does not arise in this matter.

• [76] The time for lodgement cannot be extended unless there are exceptional circumstances.

• [77] Whilst the post-dismissal action Ms Winen took to protest her dismissal weighs in her favour, the reasons for delay considered overall are not unusual or particularly convincing. Ms Winen did not post until the final day of the 21-day period and this guaranteed a late application. Doing so was unreasonable notwithstanding the unsuccessful facsimile attempt as other work-arounds such as on-line lodgement existed even on that final day. Delaying until the final day to act on her intent to litigate was also unreasonable given the legal advice received. The circumstances overall are not exceptional.

• [78] There being no exceptional circumstances, the time for lodgement of application U2021/97978 cannot be extended. Being out of time, the application must be dismissed.

• [79] An order[18] giving effect to this decision is issued in conjunction with its publication

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

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

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

[6] [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251 at [5]

[7] 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]

[8] Hong Ye v Minister for Immigration and Multicultural Affairs [1998] FCA 341; (1998) 153 ALR 327 at 330 and 332

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

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

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

[12] 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

[13] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [62]

[16] 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]

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

[18] PR736485

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