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[37]
[2021] FWC 387
General information, not legal advice.
Fair Work Commission
2021-01-29
Original judgment source is linked above.
Section 394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy - extension of time - application posted within time - delay attributable to failed mail redirection - exceptional circumstances - extension granted
[1] By application dated 21 November 2020 (received 18 December 2020) Matthew Wait (Mr Wait or the Applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by B & K Bulk Haulage Pty Ltd (B & K Bulk Haulage, the Respondent or the Employer).
[2] Mr Wait is a resident of Adelaide. He worked for B & K Bulk Haulage from around September 2019 until 10 November 2020 as a driver. On 10 November 2020 he was advised by B & K Bulk Haulage that his employment was terminated from that day.
[3] Mr Wait's application was received and date-stamped by the Commission on 18 December 2020. That date is outside the statutory 21 day time limit for filing unfair dismissal claims. If the date dismissal took effect was 10 November 2020, the application is 16 days out of time. Mr Wait seeks an extension of time. The Employer opposes that course.
[4] The Commission issued directions on 22 December 2020.
[5] On 23 December 2020 the Respondent lodged a formal response opposing the application.
[6] Mr Wait filed materials on 5 January 2021. B & K Bulk Haulage filed materials on 25 January 2021.
[7] I heard the matter by phone on 27 January 2021.
[8] Mr Wait was self-represented, assisted by a support person Mr Mercieca. B & K Bulk Haulage sought permission to be legally represented. By consent, and for reasons of efficiency, permission was granted for the Employer to be represented in these proceedings.
[9] At the commencement of the hearing, I advised the parties, following inquiries I initiated that morning concerning Commission protocols related to the receipt of mailed applications, of the following:
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;
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 then opened and processed by the Commission's administrative staff;
on 18 December 2020 an Adelaide-based manager of the Commission became aware that a mail redirect instruction to Australia Post relating to the Commission's Adelaide post box may have failed over preceding weeks, and asked an Adelaide-based registry officer to inspect the post box:
"unfortunately the last mail re-direction didn't go through - we have been let down by Australia Post which we have just only found out about and our concern is there may be mail (ie applications) sitting in the Station Arcade mail box. Can you please...go across the road and check the mail box for us please asap?"[1]
[10] Prior to the commencement of proceedings on 27 January 2021, I caused the relevant email (MFI 1) between Commission officers to be provided to the parties.
[11] After providing an opportunity for the parties to take further instructions on the matter, the Respondent advised that it continued to press its objection to an extension of time whist not disputing the information provided by the Commission concerning the apparent mail redirection failure.
[12] I heard evidence from Mr Wait. Mr Wait's evidence was clear and thoughtful. He was firm but measured in cross examination. His oral evidence was consistent with his statutory declaration and the documentary record. He was a witness of credit and his evidence was reliable.
[13] In light of the material provided by the Commission concerning the apparent mail redirection failure, B & K Haulage did not rely upon or press an affidavit it had earlier filed.
[14] I make the following findings.
[15] On 10 November 2020 Mr Wait was advised verbally and in writing by B & K Bulk Haulage that his employment was terminated "effective as of today"[2].
[16] Mr Wait went to the workplace the following day (11 November 2020) and returned company property as requested, but was not permitted to and did not perform work.
[17] Mr Wait considered his dismissal unfair from the time he was terminated.
[18] On 11 November 2020 Mr Wait and his wife went to the Adelaide CBD (Frome Street) to speak to 'fair work' (in all probability, the Office of the Fair Work Ombudsman) about his rights to challenge the dismissal. He found the fair work office closed due to COVID-19. That being so, on 11 November 2020 he immediately telephoned both the Fair Work Ombudsman (twice)[3] and then the Fair Work Commission (once)[4] and ascertained that he could make an unfair dismissal application to the Commission.
[19] That day, 11 November 2020, (10.57am) an officer of the Commission with whom he had spoken sent an email letter to Mr Wait advising of the process to make an unfair dismissal application, and enclosing a link to the F2 application form. Included in that information was advice that the application "should be made within 21 calendar days from the date the termination takes effect".
[20] On Saturday 21 November 2020 Mr Wait, having discussed the matter further with his wife, decided to make the application. He downloaded a hard copy of form F2 and completed it by hand, and signed and dated it 21 November 2020. He answered "yes" to question 1.5 of the form ("are you making the application within 21 days of your dismissal taking effect?").
[21] On Monday 23 November 2020 Mr Wait put the completed application in an envelope, addressed it to the Commission's post office box in Station Arcade, Adelaide, stamped it and posted it by ordinary mail (not express post).
[22] Mr Wait heard nothing more from the Commission over the following three weeks.
[23] On 8 December 2020 and then again on 15 December 2020 Mr Wait, having heard nothing, phoned the Fair Work Ombudsman. He was redirected to the Fair Work Commission. He phoned the Commission at 11.43pm on 15 December 2020. He was advised that there may have been postal delays due to COVID-19 and that if he had posted an application he should send it again by email.
[24] On 20 December 2020 Mr Wait sent an email to the Commission (8.33pm)[5] in which he attached the F2 application he had posted on 23 November 2020:
"Hello, my name is matthew wait. I spoke to Rochelle on the 15.12.2020 about my letter I sent in. I have been advised to email it in because she said mail is running late. This is the forms I photocopied...any more questions please feel free to call me."
[25] Unknown to Mr Wait, two days earlier (18 December 2020) the hard-copy application he had mailed on 23 November 2020 had been removed by the Adelaide-based registry officer from the Station Arcade post box and entered into the Commission's case management system.
[26] Having emailed his application on 20 December 2020, Mr Wait followed up with a call to the Commission on 21 December 2020 and ascertained that his application had been received.
[27] The Employer was then served with the application by the Commission on 22 December 2020. Both Mr Wait and the Employer were advised of the need for an extension of time and given directions related thereto.
[28] Mr Wait says that an extension of time should be granted for four reasons:
he acted quickly after his dismissal to ascertain his rights;
he completed and posted his unfair dismissal application to the Commission's South Australian postal address thirteen days after he was dismissed and inside the 21 day period for filing applications;
the delay in receiving his application was due to issues between the Commission and Australia Post, and not caused by any action on his part; and
he followed up the status of his application when it became apparent to him that there had been no contact from the Commission.
[29] Mr Wait says that there is no prejudice to the Employer should an extension be granted.
[30] B & K Haulage submit that there are no exceptional circumstances justifying an extension of time. It contends:
although there may have been, at the relevant time, a general mail redirection failure between the Commission's Adelaide post box and Australia Post, Mr Wait nonetheless carries the onus to establish exceptional circumstances warranting an extension of time on his application;
Mr Wait has email capability and should have sent his application by email on 23 November 2020 rather than relying on the less reliable postal service;
Mr Wait did not follow up with the Commission until 15 December 2020 which was after the 21 day period of time had expired; and
the delay is lengthy (16 days out of time).
[31] 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."
[32] Mr Wait's application can only proceed if he can establish that "exceptional circumstances" exist within the meaning of section 394(3).
[33] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[6]
[34] As B & K Haulage rightly point out, the test of "exceptional circumstances" establishes a "high hurdle" for an applicant.[7] A decision whether to extend time under section 394(3) involves the exercise of a discretion.[8]
[35] 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."[9]
[36] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.
[37] I now consider each of the factors set out in section 394(3).
[38] The reason for the delay in lodging an application is a factor that must be considered. 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]
[39] 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]
[40] 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.[12]
[41] I find that the date Mr Wait's dismissal took effect was 10 November 2020 (not 11 November as claimed by Mr Wait). Thus, the 21 day statutory period expired on 2 December 2020. The application having been received on 18 December 2020, it is 16 days out of time.
[42] The evidence clearly establishes, and I have found, that Mr Wait completed his application by hand on 21 November 2020 and posted the application in the ordinary mail on 23 November 2020. I do not accept the Employer's submission that Mr Wait's oral evidence should not be believed, and that it is more likely that the application was posted closer to 18 December 2020. As I have noted, Mr Wait's evidence was credible. It is supported by the documentary material. For the employer's submission to be accepted, I would need to not only conclude that Mr Wait was not truthful under oath, but that he also falsely dated his application and falsely answered question 1.5 on the F2, or simply delayed posting a completed application. I do not accept these assertions.
[43] Having found that the application was made and posted by Mr Wait inside the 21 day period, the reason for the delay in its receipt appears to be wholly attributable to the failure of a mail redirection arrangement in November and December 2020 between the Commission and Australia Post relating to mail addressed to the Commission's Adelaide post box at Station Arcade.
[44] No period of the delay can be attributable to Mr Wait's conduct.
[45] I do not accept the Employer's submission that, by posting his application, Mr Wait brought this problem upon himself by choosing a less reliable form of communication than on-line lodgement or email lodgement. Lodgement by post is and was a permitted course under the Fair Work Rules. It is one of the methods of lodgement communicated to prospective applicants via the Commission's web site. The Station Arcade address used by Mr Wait was the correct address for postal lodgements in South Australia. It is simply not reasonable to have expected Mr Wait to have factored in the prospect of mail deliveries being delayed or to have exercised clairvoyant-like skills in foretelling the future failure of a mail redirection arrangement between the Commission and Australia Post. In any event, Mr Wait posted his application more than a week (nine days) before the 21 day period expired. Whilst he did not use the express post facility, he allowed more than enough time for an applicant to have a reasonable degree of confidence that mail sent from suburban Adelaide to the Adelaide CBD would be received in a nine day period.
[46] Nor do I accept the Employer's submission that Mr Wait was in part responsible for the delay because he failed to follow up inside the 21 day period whether the Commission had received his application. Whilst an applicant's conduct inside a 21 day period may help explain or understand the reasons for delay, there is no obligation on a dismissed employee to delve into or accelerate the Commission processes where they have acted to file inside the 21 day period. Indeed, it is not until the 21 day period has passed that there is any period of delay at all.
[47] Nor was Mr Wait's conduct in the 16-day delay period (that is, post 2 December 2020) dilatory. Mr Wait was acting on his own behalf and self-represented. He had no particular sophistication or insider's knowledge of Commission processes. It was he who pro-actively initiated contact with both agencies (the Ombudsman and the Commission) on 15 December 2020 and he did so because he had heard nothing. In the circumstances of this matter, I do not consider that waiting two weeks after the 21 day period had expired before following up the status of an already mailed application to the Commission was unreasonable.
[48] The explanation for the delay is reasonable.
[49] Considered overall, the reason for the delay weighs strongly in favour of a finding of exceptional circumstances.
Awareness of the dismissal taking effect (section 394(3)(b))
[50] Mr Wait was aware of his dismissal on 10 November 2020, and was aware from at least 11 November 2020 that he was no longer permitted to undertake work in the business.
[51] He was neither confused about the date of dismissal nor the reason for dismissal.
[52] In these circumstances, this is a neutral consideration.
Action taken to dispute dismissal (section 394(3)(c))
[53] Mr Wait took immediate action (11 November 2020) to ascertain his rights and formed an immediate view after being dismissed that he considered himself to have been treated unfairly.
[54] He did not however communicate with the Employer after his dismissal, preferring to pursue his legal options.
[55] In these circumstances, this is a neutral consideration.
[56] The Employer 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 in any particular respect.
[57] However, the absence of prejudice would not itself be a reason to grant an extension.[13]
[58] In these circumstances, this is a neutral consideration.
[59] The merits of Mr Wait's application are likely to concern issues of conduct and competing allegations and versions of events.
[60] None of these matters have been tested.
[61] In these circumstances, the merits of the application is a neutral consideration.
Fairness between persons in similar position (section 394(f))
[62] This factor does not arise in this matter.
[63] The explanation for the delay is reasonable.
[64] Moreover, and fortuitously, the failure of a postal service redirection is an unusual circumstance. It was also a circumstance beyond the control of Mr Wait.
[65] Having regard to the factors in section 394(3) of the FW Act, I am satisfied that Mr Wait has met the onus of establishing exceptional circumstances warranting an extension of time.
[66] I am also satisfied that it is appropriate to exercise the discretion to extend the time. There is no particular prejudice to the employer in doing so. Mr Wait has been diligent in seeking to pursue his application. There is no objective basis on which it can be concluded that Mr Wait has acted unreasonably or with indifference to pursuing the grievance he holds about his dismissal.
[67] In the context of a 21 day statutory time limit, the period of delay (16 days) is considerable. However, it would be patently unfair to deny Mr Wait the opportunity for conciliation and, if necessary, arbitration of his unfair dismissal claim simply due to the failure of a postal redirection arrangement between the Commission and Australia Post.
[68] There being exceptional circumstances for the delay in the filing of application U2020/16175, the time for lodgement is extended so as to permit the application to have been lodged on and including 18 December 2020.
[69] An order[14] giving effect to this decision is issued in conjunction with its publication.
[70] I also issue directions in this matter. Those directions are that the application be referred to Member Assisted Conciliation to be held by no later than 26 February 2021 (and conducted by a Member other than myself). In the event that Member Assisted Conciliation does not resolve the matter, I will provisionally convene a directions hearing at 9.30am on 3 March 2021 at which time the matter will be set down for hearing with associated directions for the preparation of witness statements and submissions.
[1] MFI 1 Email Friday 18 December 2020 9.54am
[2] Attachment to F2: Letter 10 November 2020
[6] Smith v Canning Division of General Practice [2009] AIRC 959
[7] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]
[8] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[9] [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251 at [5]
[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] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
Printed by authority of the Commonwealth Government Printer
Matthew Wait
B&K Bulk Haulage [2021] FWC 387
(1995) 67 IR 298