| [2022] FWC 122 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Maree Daley
v
Ambulance Victoria
(U2022/1)
COMMISSIONER BISSETT |
MELBOURNE, 27 JANUARY 2022 |
Application for an unfair dismissal remedy –extension of time – application granted.
[1] Ms Maree Daley has made an application seeking a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Ms Daley was employed by Ambulance Victoria. Her employment was terminated with effect on 6 December 2021. Her application for unfair dismissal was made to the Commission on 30 December 2021.
[2] The FW Act requires that an application for remedy from unfair dismissal must be made within 21 days of the date the dismissal took effect unless the Commission extends that time, having found the existence of exceptional circumstances. To have made her application within time Ms Daley was required to have made her application by midnight on 27 December 2021. Her application was received by the Commission on 30 December 2021. It was therefore made 3 days outside the 21-day time limit imposed by the FW Act. Ms Daley seeks an extension of time within which to make the application.
[3] On 4 January 2022 I issued directions to enable me to determine the application for an extension of time. Ms Daley was required to file any submissions and evidence in support of her application by 13 January 2022. To the extent it may wish to do so Ambulance Victoria was required to file any submissions and evidence by 20 January 2022. Ms Daley filed submissions in accordance with the directions issued. Ambulance Victoria chose not to file any submissions but relied on its Form F3 – Employer response to unfair dismissal application.
[4] Ms Daley complied with the directions and filed submissions and documents in support of her claim for an extension of time. Ambulance Victoria indicated that it did not oppose the grant of the extension of time although disputes that the dismissal of Ms Daley was unfair.
[5] The mater was dealt with by way of determinative conference.
[6] At the conclusion of the proceedings I indicated that I was satisfied that exceptional circumstances existed and that, in the circumstances, I was satisfied that an extension of time should be granted.
[7] These are the reasons for my decision.
[8] For Ms Daley to have made her application within the prescribed time she was required to file her application by midnight on Monday 27 December 2021.
[9] Ms Daley says that 27 December 2021 and 28 December 2021 were public holidays and this should be taken into account in determining if her application was late and if an extension of time should be granted.
[10] Ms Daley is correct in noting that 27 December 2021 and 28 December 2021 were public holidays.
[11] The Acts Interpretation Act 1901 (AI Act) 1 states:
36 Reckoning of time
(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.
(2) Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.
[12] By virtue of s.36(2) of the AI Act, as Ms Daley was required to file her application on a public holiday and the following day was also a public holiday, she was not required to file her application until 29 December 2021. In this respect her application may be considered to be only one day out of time.
[13] What Ms Daley would not have been aware of is that the Commission was closed for an additional holiday on 29 December 2021. 2 It is therefore readily explained as to why Ms Daley did not receive notice from the Commission that her application had not been successfully filed until 30 December 2021.
[14] Whilst an organisation having a day on which it is closed may not be unusual, it is not something that would necessarily be expected to be within the knowledge of a person seeking to transact with that organisation. The AI Act does not deal with this circumstance of the Commission being closed for a reason other than a public holiday or weekend in relation to its effect on the date by which something is required to be done, but I am satisfied that guidance might be taken from the AI Act and how it treats the measurement of time in relation to things required to be done on a day that is a public holiday.
[15] The FW Act requires that an application be filed within 21 days of the date the dismissal takes effect. In this case that was 27 December 2021.
[16] The operation of the AI Act in relation to things required to be done on a day that is a public holiday or weekend has the effect in this case of requiring the application to have been made by midnight on 29 December 2021. That would therefore make Ms Daley’s application only 1 day late. As the AI Act does not operate to take into account that the Commission offices were closed on 29 December 2021 it remains necessary that I consider if an extension of time should be granted.
[17] The FW Act requires that an application for unfair dismissal be made within 21 days after the effective date of dismissal. Section 394(3) of the FW Act sets out those matters to which the Commission must have regard in deciding if there are exceptional circumstances such that an extension of time might be granted. Section 394(3) states as follows:
394 Application for unfair dismissal remedy
(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.
[18] Each of the above matters must be considered in assessing whether there are exceptional circumstances. 3
[19] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 4 Exceptional circumstances may 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 can be considered exceptional.5
[20] Ms Daley says that she filed her application and supporting material with the Commission by email on 27 December 2021. Ms Daley produced a photograph of an email from “Fwc Gov Postmaster” that she received dated 27 December 2021 which said:
Your message entitled: Fw: Application for unfair dismissal has been accepted for delivery to the recipient’s mailbox. You are advised that this is an automatically generated message.
Please do not reply to this email. Any further correspondence should be directed to the relevant email address.
[21] At 1.55pm on Thursday 30 December 2021 the Commission sent an email to Ms Daley, that reads as follows:
Dear Maree
The Fair Work Commission received the attached email from you on Monday, 27 December 2021.
There was not a completed application form attached to your email. The form submitted was blank.
The Fair Work Commission can only start dealing with a case after we receive a completed application on an approved form (as per Rule 14 of the Fair Work Commission Rules 2013).
To make an application to the Commission you need to complete the relevant form and lodge it by email, fax or by post.
There are strict time limits for some application types. Some applications are dismissed if they aren’t lodged within the time limits.
You can contact us for help by return email or on 1300 799 675.
Kind regards
Client Services
Fair Work Commission
Tel: 1300 799 675
Subject: Application for unfair dismissal
[22] The email referred to in the Commission email received from Ms Daley reads:
Date: 27/12/21
Dear Fair Work Commission,
Please see attachments for my unfair dismissal application and the following relevant documents
1. Certificate of Service
2. Application form F2
3. Ambulance Victoria Enterprise Agreement
4. Notice of Termination
5. Employment Separation Certificate
6. First Email
7. Second Email
8. Third Email
9. Fourth Email
10. Fifth Email
11. Pay slip
I appreciate your consideration.
Sincerely
Maree DALEY
[23] Ms Daley said that she received the reply email from the Commission at about 4.00pm that day. She phoned the Commission at 4.15pm to ask what she could do. Ms Daley said she was advised to submit her completed application but to ensure she adjusted her answer to question 1.5 [which asks if the application is being made within the 21 days required by the FW Act].
[24] Ms Daley advised that she was in Airey’s Inlet at the time where she had no internet access. She said she drove 140kms to where she could access the stored application and resubmitted the application the same evening.
[25] Ms Daley said she made persistent efforts to ensure that her application was properly filed. On becoming aware that her application was not correctly filed she took steps to rectify that situation immediately.
[26] Ms Daley also said that, at the time she was dismissed, she was on “extended sick leave” with fatigue, mental stress and an eye injury. Ms Daley provided a copy of a medical certificate for the period 22 November 2021 to 5 December 2021 and a further medical certificate for the period 5 December 2021 to 7 December 2021 (in relation to her eye injury).
[27] Ms Daley agreed that she was aware that an application for remedy for unfair dismissal was required to be submitted within 21 days of the date of dismissal. She said that, for the period from 6 December 2021 (the date of dismissal ) to 27 December 2021 she was deliberating whether she had the energy to make the application. She says that she was also seeking professional advice in relation to her health and in relation to making the application.
[28] Ambulance Victoria made no submissions in relation to the reason for the delay.
[29] I am satisfied that Ms Daley attempted to make her application on Monday 27 December 2021. Commission records show that she filed 11 documents as identified in her email to the Commission of that day. All the listed documents were present except that the Form F2 filed by Ms Daley was blank.
[30] I am also satisfied that Ms Daley received the email from “Fwc Gov Postmaster” as described above.
[31] The time at which an application (of any description) is taken to be received by the Commission is detailed in the Fair Work Commission Rules 2013 (FW Rules).
[32] Rule 14(1) of the FW Rules allows a document to be filed with the Commission by email. Rule 14(4) states:
(4) If a document lodged in accordance with this rule is an application commencing a matter:
(a) the General Manager must send an acknowledgment of lodgment, by email, to the person lodging the document; and
(b) the application is not taken to have been lodged until the acknowledgment of lodgment mentioned in paragraph (a) has been sent; and
(c) once the acknowledgment of lodgment mentioned in paragraph (a) has been sent, the application is taken to have been lodged at the time it was received electronically by the Commission.
[33] As is apparent in this case Ms Daley did not receive an email from the General Manager acknowledging lodgment of her application. Rather, she received an email from the Commission on 30 December 2021 indicating that she had not filed a completed application. I am therefore satisfied that Ms Daly did not make her application on 27 December 2021 (although I accept that she attempted to, as evidenced by her attaching all of her relevant documentation but only attaching a blank application form in her email to the Commission).
[34] Ms Daley then filed a completed application on 30 December 2021. This was filed at 10.01pm that evening.
[35] I am satisfied that Ms Daley’s application was late because she filed an incomplete application (a blank Form F2) on 27 December 2021. Because the application form was blank it cannot be considered an “application” commencing her matter as such. That Ms Daley did not receive an email confirming receipt of her application supports this conclusion. The email Ms Daley received from “Fwc: Gov Postmaster” is not an email that confirms a valid application has been received by the Commission – it is no more than an acknowledgement that an email was received at the Commission server.
[36] Ms Daly did not become aware that she had failed to file a completed application until 30 December 2021 – the first working day for the Commission after 27 December 2021. I am satisfied that Ms Daley could not have known that 29 December 2021 was a holiday for Commission staff.
[37] The Commission, having received the incomplete application from Ms Daley, on its next working day following the public holiday on which Ms Daley’s application for unfair dismissal was otherwise due, emailed Ms Daley. On receipt of that email I am satisfied that Ms Daley took all necessary steps to file her amended application with the Commission that day, filing her completed application form at 10.01pm on 30 December 2021.
[38] I am satisfied that Ms Daley has provided an acceptable explanation of the delay in making her completed application to the Commission.
[39] Ms Daley became aware of her dismissal on 6 December 2021 when it took effect.
[40] Besides the making of this application Ms Daley has not taken other action to dispute her dismissal.
[41] No prejudice is claimed by the delay in making the application. I cannot identify any prejudice on the basis on the material before me.
[42] The merits of the application to which I must have regard are formed on consideration of whether the limited evidence I have before me discloses a likely unfair dismissal.
[43] At this stage of the proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that, in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters. 6 Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears an applicant’s case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.7
[44] Ms Daley’s employment was terminated as she had not complied with a direction to have a vaccine. Ms Daley says the dismissal was unfair. She says she received correspondence from Ambulance Victoria in relation to the vaccine that she found confusing, she was not made aware of the effect of some of the correspondence and the final meeting she had with Ambulance Victoria had a predetermined outcome of termination. Ms Daly says that the process lacked procedural fairness, did not take into account that, at the time Ambulance Victoria was sending correspondence to her about the matter, that she was on personal leave for mental health, fatigue and an eye injury, that she was not given the opportunity to take long service leave to cope with her fatigue and was not given the opportunity to take leave while awaiting the approval of the Novovax vaccine.
[45] Ambulance Victoria dispute the basis by which Ms Daley claims her dismissal was unfair.
[46] It is difficult, given Ms Daley’s reliance on procedural matters, to make any finding as to the merits of her claim for unfair dismissal and I decline to do so.
[31] In considering whether I should grant an extension of time I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 8 It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.9 In relation to the question of fairness as between applications arising out of the same employer, while the Commission is aware of there being another person presently before the Commission dismissed by the same employer for similar underlying issues that matter has not yet been heard and hence has no bearing on this matter.
[47] Taking into account my findings above I am satisfied that there are exceptional circumstances in this case. Had the Commission offices been open on 29 December 2021 Ms Daley would have been notified that day that she had failed to file a completed application form. Given her actions in rectifying the error she made when notified on 30 December 2021 that her application was not complete I am satisfied that, had she received that advice on 29 December 2021, she would have made every effort to file a completed form by 29 December 2021. Had this occurred her application would have been within time (given the operation of the AI Act). I am satisfied that these are exceptional circumstances.
[48] For these reasons I have determined an extension of time until 30 December 2021 should be granted to Ms Daley to file her application.
[49] An order 10 to this effect will be issued with this decision.
COMMISSIONER
Appearances:
M. Daley on her own behalf.
L. Russell for the Respondent.
Hearing details:
2022.
Melbourne by telephone:
January 24.
Printed by authority of the Commonwealth Government Printer
<PR737709>
1 As at 25 June 2009 - see FW Act s.40A
2 The Fair Work Commission Enterprise Agreement 2017–2020. Clause 94 states:
94. Employees are entitled an additional holiday each year on the day which would otherwise be the first working day after Boxing Day.
3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901 at [39]
4 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]
5 Ibid
6 Kyvelos v Champion Socks Pty Limited (2000) Print T2421 at [14]
7 Haining v Drake and Others (1998) 87 FCR 248 at p.250
8 Wilson v Woolworths [2010] FWA 2480 at [24]‒[29]
9 Jalil v BMD Constructions Pty Ltd [2014] FWC 9357 at [10]