Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - application posted three days prior to statutory time limit - delay attributable to both employee misjudgement and mail redirection - considered overall, no exceptional circumstances - application dismissed

• [1] Jacqueline Petherick (Ms Petherick 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 Estia Investments Pty Ltd (Estia Health, the respondent or the employer) on 17 September 2021.

• [2] Ms Petherick's application is dated 27 September 2021. It was received by the Commission on 18 October 2021.

• [3] The application is outside the statutory 21-day period for making unfair dismissal claims. It is ten days out of time. Ms Petherick seeks an extension of time.

• [4] On 27 October 2021 the Commission issued directions.

• [5] Ms Petherick filed materials on 29 October 2021.

• [6] On 10 November 2021 Estia Health filed a response opposing the application including the extension of time.

• [7] I heard the extension of time matter on 22 November 2021.

• [8] Ms Petherick was self-represented. Whilst her application named the Australian Nursing and Midwifery Federation (SA) (ANMF) as her representative, the day after it was filed the ANMF advised the Commission that it does not act for Ms Petherick in these proceedings.

• [9] At the hearing, Ms Petherick gave evidence in support of her application. Estia Health was represented by Mr Alexander Brown, Employee and Industrial Relations Manager.

• [10] At the hearing's commencement, I referred to an email sent by my chambers on 28 October 2021[1] which advised the parties of Commission protocols concerning mailed applications as it concerned the handling of Ms Petherick'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.

• [12] Estia Health provides aged care services including at a facility at Kadina.

• [13] Ms Petherick lives in Kadina, a town in regional South Australia approximately 150km northwest of Adelaide. She was employed as a registered nurse. Until dismissed, she had worked for approximately fourteen years for both Estia Health and its predecessor (Padmans).

• [14] In August 2021 a dispute arose between Ms Petherick and Estia Health concerning a vaccination mandate for staff working in residential aged care facilities following an announcement by the Australian government and a subsequent direction by the State Co-ordinator for South Australia under the Emergency Management Act 2004 (SA).

• [15] Following an indication by Ms Petherick that she would not consent to be vaccinated and an exchange of correspondence (including with the ANMF), Ms Pederick requested leave to consider her position further once a different vaccine (Novavax) is available. The employer declined this request even after representations on her behalf by the ANMF.[2]

• [16] In light of the requested leave being declined and aware she had a deadline of 9.00am 17 September 2021 to provide evidence to Estia Health of vaccination or an exemption, Ms Petherick became stressed. She consulted her general practitioner. She was given a sick certificate on account of her "mental health" for the period 14 September to 28 September 2021 inclusive.[3]

• [17] On 17 September 2021, and despite being absent on personal leave, Estia Health advised Ms Petherick that it had decided to terminate her employment without notice for refusing to "carry out a lawful and reasonable instruction" and being "unable to perform the inherent requirements of your position".[4]

• [18] Over the next week (the first week after dismissal) Ms Petherick continued to be stressed by the dismissal. She felt that Estia Health had acted unfairly and decided to inform herself about her rights. She has internet coverage at home, as well as a printer. She looked up the Commission web site and noted her unfair dismissal rights and that any unfair dismissal claim needed to be lodged within 21 days of dismissal. She then contacted her union, the ANMF. She spoke to an officer of the ANMF on 24 September 2021 who took her through her rights, including how to file a claim in the Commission. She was reminded of the 21 day rule.

• [19] Ms Petherick downloaded the form F2 from the Commission's web site and printed it via her home printer. On 27 September 2021, and by hand, Ms Petherick populated and dated the form (including one additional handwritten page alleging unfairness). Ms Petherick calculated that she had until 8 October 2021 to file an unfair dismissal claim.

• [20] However, Ms Petherick did not send the application the day she completed it. She wanted to attach some documents, such as her correspondence with Estia Health prior to dismissal. She was also conflicted whether to proceed. Whilst Ms Petherick felt she had been treated unfairly, she had been told that the ANMF could not act for her. She was not sure, in light of her stress, whether she was doing the right thing for her health and employability in suing Estia Health.

• [21] Ms Petherick spent Monday 27 September to Friday 1 October 2021 considering her options. She was also seeking alternative employment. On Tuesday 28 September 2021 she undertook a one day trial shift with an alternate employer but did not progress that option believing it was too soon to get back to work due to her mental health.

• [22] On 30 September 2021 and on 1 October 2021 Ms Petherick gave further thought to her application. On Friday 1 October 2021 Ms Petherick decided to proceed. She decided not to send the application by email because she wanted to attach documents and considered that doing so electronically was too difficult. She preferred to send the application and attachments in hard copy, by mail. Ms Petherick knew that a long weekend was approaching but did not go to the post office that day.

• [23] It was not until Tuesday 5 October 2021 that Ms Petherick went to the Kadina post office with her application.

• [24] When researching her rights, Ms Petherick had noticed advice on the Commission web site that there were some mail delays being experienced by Australia Post, but believed from past experience that standard mail from Kadina to Adelaide would be received in Adelaide the next day or the day following. She believed that her application, posted on day 18 as it was, would be received by day 21.

• [25] Ms Petherick proceeded to post the application by standard mail. She purchased $3.30 of stamps and affixed them to the envelope and posted it. She did not ask the postal officer about other options such as express post, nor did she ask whether there were any delays on standard mail delivery to Adelaide.

• [26] Ms Petherick's application was stamped by the Kadina post office on 5 October 2021. Ms Petherick addressed it to the Commission's South Australian (Adelaide) post box (which she had obtained from the Commission web site).

• [27] Unbeknown to Ms Petherick, 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 Petherick's application was redirected by the postal service to Melbourne.

• [28] As Ms Petherick did not purchase tracking of her parcel, the evidence does not establish on which date the envelope arrived at the Australia Post mail exchange in Adelaide or the Commission's Adelaide post box. It establishes that a redirection label was placed over the handwritten address on the envelope by a person unknown and redirected to the Commission address in Melbourne.

• [29] On 18 October 2021, the redirected envelope was received by Commission staff in Melbourne, and processed.

• [30] Ms Petherick says that an extension of time should be granted for four reasons:

• if the application was in fact delivered to the Commission post box before 8 October 2021, which Ms Petherick believes would have been likely, it was received within time before being redirected and an extension is not needed;

• she posted the application within time and, but for a redirected postal arrangement of which she was not aware, it would have been received 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; and

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

• [31] Estia Health submit there are no exceptional circumstances justifying an extension of time. 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 Petherick delayed unreasonably before posting the application and carries the onus to establish exceptional circumstances warranting an extension of time;

• Ms Petherick had email capability and should have sent her application by email on 27 September 2021 when it was completed or at the latest on 1 October 2021 when she decided to proceed, rather than relying on the less reliable postal service;

• Ms Petherick knew of the 21 day period and that there was the possibility of mail delays but chose to post by standard mail based on no current assessment of risk of delay; and

• Estia Health will be put to cost and expense of having to defend a late application that it says is meritless.

• [32] 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."

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

• [34] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[5]

• [35] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant[6]. A decision whether to extend time under section 394(3) involves the exercise of a discretion[7].

• [36] 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."[8]

• [37] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[9]

• [38] 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.

• [39] In the case of a mailed application, the making occurs when the postal process is complete and the application is received by "an office of the Commission".

• [40] The absence of postal tracking of Ms Petherick's application makes it impossible to know whether it was delivered to the Commission's post box in Adelaide by Australia Post and then redirected, or redirected at the mail exchange. In this matter, that gap in evidence is not material. Even if the item was delivered to the Commission's post box, placement by a postal officer in an external post box is not an act of lodgement. Lodgement only occurs when the mailed 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".[10]

• [41] Ms Petherick's application was "made" in the relevant sense when the posted item was received by an officer of the Commission following redirection. That was on 18 October 2021.

• [42] Having not been made until then, the application is ten days outside the statutory 21-day time limit for filing unfair dismissal claims. If it is to proceed, an extension of time is required.

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

• [44] 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.[11] 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.[12]

• [45] 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.[13]

• [46] 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.[14]

• [47] The delay period is the ten days 9 to 18 October 2021 (inclusive).

• [48] During the whole of this delay period, the application was in postal transit. Although it is unknown on what day the application was redirected from the Adelaide post box, I find on the balance of probabilities that for a substantial portion of the ten day delay period the application was in the redirection phase. However, it is also more probable than not that a smaller period of delay arose prior to redirection given that Australia Post was experiencing general mail delays due to the pandemic and was warning that even express post parcels were subject to delays. For example, the Australia Post's web site informed that an express post item could take five days from Kadina to Adelaide.[15]

• [49] Ms Petherick was unaware of the redirection. Being an arrangement between the Commission and Australia Post, she could not have been aware of it. Redirection is not a usual circumstance. There is a reasonable explanation for that portion of the delay period attributable to redirection.

• [50] However, did Ms Petherick otherwise contribute to the delay?

• [52] Firstly, Ms Petherick chose to send her application by standard mail, and not express post. She was aware from the Commission web site that receipt of mailed applications could be delayed. The Commission web site reads:

"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".

• [53] In light of this alert, the decision by Ms Petherick to post by standard mail at the time she did and not via a speedier form such as express post was unreasonable.

• [54] Secondly, Ms Petherick did not post until day eighteen after dismissal. She knew she had a 21 day time limit. She allowed herself only three days for receipt of a standard posted item from regional South Australia to an office in the Adelaide CBD. Even in orthodox times, this would be cutting it fine. In the unorthodox period of a pandemic where services are under stress, it was unreasonable to conclude that because her past experience with the postal service was no more than two days delivery from Kadina to Adelaide, that her application would be received in time. Ms Petherick did not allow the "extra time" as advised by the Commission website. In her oral evidence, Ms Petherick continued to show little insight into the margin of risk she was taking.

• [55] Thirdly, Ms Petherick decided not to send her application by email on 27 September when it was drafted or on 1 October when she decided to proceed. I accept that her decision on 27 September was based in part on her mental health and to that extent reasonable. However, her decision on 1 October 2021 had no reasonable basis. Ms Petherick had internet and email capacity, was aware from the Commission web site that applications could be emailed and knew that mailing would take longer. That she considered it awkward to attach documents to an emailed application was a matter of personal convenience. Ms Petherick also knew that a long weekend was imminent and that mailing would, unless she went to the post office by that Friday's closing, not allow posting until four days later.

• [56] In the abstract, given that both posted and emailed applications are permitted by the FW Act, Ms Petherick 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 Petherick had no specialist knowledge or insight into such matters. However, in context, the series of decisions made by Ms Petherick were in combination unreasonable. By 5 October 2021 Ms Petherick knew she was posting an important document that had a legal time limit of only three more days attached to it and knew there was a possibility of mail delays, yet chose the slowest form of mail delivery.

• [57] An applicant choosing to lodge 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.[17] A failure to do so renders the applicant's conduct less reasonable and thereby a reason for delay based upon postal service delays less weighty.

• [58] The reason for delay (postal transit) relied upon by Ms Petherick weighs in part (the redirection component), but only in part, in favour of a finding of exceptional circumstances.

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

• [59] Ms Petherick was aware of her dismissal taking effect on 17 September 2021.

• [60] She was neither confused about the date of dismissal nor the reason for dismissal.

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

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

• [62] Ms Petherick held a view at the time of dismissal that the vaccination mandate imposed by the authorities and the employer was, in her view, wrong, and that issues of concern and options for leave she had raised had not been properly considered. Upon dismissal, she formed an immediate view of having been treated unfairly, especially in light of assistance she had received from the ANMF.

• [63] Given the exchanges of correspondence prior to dismissal, she did not communicate with the employer after dismissal, preferring to pursue this legal option.

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

• [65] Estia Health 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.

• [66] However, the absence of prejudice would not itself be a reason to grant an extension.[18]

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

• [68] The grounds on which Ms Petherick challenges her dismissal appear to be threefold:

• that the mandate on the aged care sector by the Australian government, the direction by the State Co-ordinator for South Australia under the Emergency Management Act 2004 (SA) and the vaccine mandate required by Estia Health as a condition for continued employment was based on "experimental vaccines" and unreasonable;

• Estia Health failed to properly consider or negotiate the terms on which Ms Petherick was willing to continue in employment including by taking leave to await a different vaccine; and

• Estia Health acted unreasonably by placing pressure on Ms Petherick including by dismissing her on 17 September 2021 notwithstanding that she produced a medical certificate on 14 September 2021 indicating that she was "unable to work as the workplace conflict is affecting her mental health".

• [69] Estia Health consider its vaccination requirement to have been a lawful and reasonable direction, that over a six week period it considered issues raised by Ms Petherick, that it responded in a timely manner, that its decision to reject an indefinite leave request was reasonable and that overall it acted fairly.

• [70] Ms Petherick's application is not an explicit challenge to the lawfulness of the vaccination mandate by the Australian government or the State Co-ordinator. It is primarily a claim framed around reasonableness of decisions made by her then employer.

• [71] As I have not heard evidence or submissions on these questions, for the purposes of considering this extension of time request, I consider the merits of the application to be a neutral consideration.

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

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

• [73] A determination in this matter requires a balancing and weighing of relevant considerations, some of which are in favour of an extension and some of which weigh against or are neutral. Ms Petherick's case for an extension is not without some merit but her misjudgements also present barriers in satisfying the statutory test of exceptional circumstances.

• [74] The explanation for a substantial portion of the delay (the redirection period) is reasonable. Redirection is an unusual circumstance over which Ms Petherick did not know and could not have reasonably known. Delay on that account weighs in favour of an extension of time.

• [75] However the delay was also materially contributed to by misjudgements by Ms Petherick.

• [76] Ms Petherick mailed her application unreasonably late in the 21 day period such that there was a real possibility given the date it was posted (day eighteen) and the form of mailing selected (standard post) that her application would be received late. She applied an overly optimistic time frame of three days for the delivery of a posted application by ordinary mail from regional South Australia to an office in Adelaide.

• [77] In the context of a 21-day statutory time limit, the period of delay (ten days) is considerable though, as noted, a substantial portion of this period is reasonably explained.

• [78] Given it is ultimately Ms Petherick's onus to establish exceptional circumstances, my finding is that the contribution by Ms Petherick to the delay by a series of small but cumulatively material misjudgements means that the circumstances are not, when considered overall, exceptional. Accordingly, the time for lodgement of application U2021/9367 cannot be extended. Being out of time, the application must be dismissed.

• [79] An order[19] giving effect to this decision is issued in conjunction with its publication.

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

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

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

[8] [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251 at [5]

[9] 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]

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

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

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

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

[14] 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

[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]

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

[19] PR735529

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