DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Voto
v
Adairs Retail Group Pty Ltd
(U2020/3577)

Application for an extension of time – unfair dismissal – exceptional circumstances –extension granted.

Background

[1] This decision concerns an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act) by Ms Voto (the Applicant). Adairs Retail Group Pty Ltd (the Respondent) has raised a jurisdictional objection, claiming that the Applicant did not lodge her application within the designated time frame. A hearing was held on 11 August 2020 to determine the question of whether an extension of time should be granted.

[2] The Applicant commenced employment with the Respondent on 19 March 2018 as a casual Retail Team Member. The Applicant was then transferred to the Respondent’s Coomera store as a full time Assistant Store Manager commencing 15 October 2018 until her termination which occurred on the 28 January 2020.

[3] The Applicant was notified of her termination via email by the Respondent on the 28 January 2020, however the Applicant lodged her application on the 25 March 2020 which is a delay of 36 days beyond the 21 day timeframe as per s394(2).

[4] The Applicant contends that her Application was made within the 21 day period as she did not become aware of the written notice of dismissal until 5 March 2020. Alternatively, the Applicant contends that there were exceptional circumstances and the Commission extend the period for her application 36 days beyond the 21 day time period.

Respondent’s Evidence

[5] A workplace investigation was initiated by the Respondent in October alleging the Applicant had breached company policies and processes specifically relating to processing personal sales, discounts and lay-bys. On 17 October 2019, the Applicant was advised by the Respondent that she was suspended with pay until a meeting could be held to obtain her response.

[6] There are a complex set of circumstances the Applicant faced leading up to and during the termination process and indeed following the termination.

[7] Late in October, the Applicant raised a grievance regarding her supervisor regarding behaviour that she alleged as harassing and intimidatory. She had also made earlier complaints regarding this behaviour that had not been addressed. The Applicant was advised by email that her grievance would be investigated however the original investigation still stood and in early November the Respondent sought the Applicant’s response. The Shop, Distributive and Allied Employees’ Association (SDA) attended with the Applicant a meeting on 12 November 2019 and provided a written response the following day.

[8] A further allegation was made as a result of the initial investigation and this was communicated on 18 November 2019 to the Applicant. The SDA provided a written response on 21 November 2019 and following the Respondent’s request for a more substantial response to the second allegation, the SDA responded with a further detail on 26 November 2019.

[9] A show cause document was created by the Respondent based upon the various responses received from the Applicant and the investigation material collected. It indicated that the first allegation was partially substantiated and second allegation was substantiated and stated that there had been a number of breaches in workplace policies and a breakdown in the employment relationship, which led the Respondent to the preliminary view that the Applicant’s employment was no longer tenable. The Applicant emailed the Respondent on 2 December 2019, stating she was unable to respond to the show cause and referred to a medical certificate stating that she had no capacity for work.

[10] It is to be noted that up until this time, the Applicant had been stood down on pay whilst the investigation process was underway. Once the medical certificates were received, she was put on paid personal leave and when this ran out then she was put on unpaid leave. The Respondent agreed to leave the show cause process in abeyance until she returned to work.

[11] The Respondent and Applicant remained in contact through the December period and during this period, the Respondent was advised that the Applicant’s workers compensation claim in relation to a psychological injury had been rejected. The Applicant in early January notified the Respondent of a change of email address which the Respondent acknowledged. The Respondent also sought further medical evidence from her doctor and advised she stay in contact.

[12] The Respondent sought an updated medical certificate and further medical details later in January and/or a response to the show cause letter. With no response forthcoming, the Respondent decided to terminate the Applicant’s employment for the reason of misconduct on 28 January 2020 and sent an email to the updated email address. The Respondent had previously been advised to not contact the Applicant via phone or through the post.

Applicant’s Evidence

[13] There are a complex set of circumstances the Applicant faced leading up to and during the termination process and indeed following the termination. The Applicant was accessing personal leave from November 2019 as a result of ‘extreme hardship and concern for her psychological well-being’.

[14] The original allegations put to the Applicant involved several transactions and alleged unsatisfactory conduct. Further, the Applicant lodged a grievance relating to bullying and harassment which was included the investigation process. The SDA provided assistance and representation to the Applicant during this period.

[15] The SDA raised concerns that throughout the process that there were issues with the procedural fairness afforded to the Applicant and further the allegations were vague, not specific, general, and in some cases were found not to be substantiated. Many of the allegations were presented in a way that made it difficult to respond specifically to, for example “a number of team members have stated that they will not return to work if you do”. Further, the time available for the Applicant to respond was limited.

[16] The Applicant led evidence that her personal situation was volatile and quite dire due to domestic violence inhibiting her capacity to respond effectively. Attachment 3 of the Applicant’s submission indicated that she “had commenced support with Save the Children – Gold Coast Violence service on the 17 December after an incident occurred where [Ms Voto] stated that she had been a victim of domestic violence”. The letter goes on to mention Ms Voto was seen to have significant large and multiple bruising on the trunk of her body and thighs and further stated “additionally, one of her feet appeared to be considerably bruised. These bruisings would in my opinion support [Ms Voto’s] version of events”. The writer goes on to mention that she is not medically qualified, however, I note that she is a Team Leader in the Gold Coast Domestic Violence Service.

[17] The Applicant also produced evidence that a Temporary Protection Order (DVO) was issued at the Magistrates Court in Southport on the 20 December 2019 and was varied on the 29 January 2020. Further she provided evidence that she had found temporary accommodation on 28 January 2020 at a Women’s Refuge run by the St Vincent de Paul Society.

[18] During this period of December through to January she also produced evidence of a theft of a vehicle on the 21 January 2020 that contained her laptop, cash and prescription drugs. There were some sporadic communications between the respondent and applicant during this period.

[19] The Applicant contacted the SDA on 5 March 2020 to provide an updated medical certificate and once the SDA communicated to the Respondent the reply was forthcoming, the SDA was informed that the Applicant had been terminated on the 28 January 2020.

[20] During this time, the Applicant had become homeless, stated that she did not have regular access to the internet and did not have their normal ability to receive or respond to communication from the employer. It was confirmed in correspondence that the refuge does not have wifi. As a result, it is the Applicant’s contention that she did not become aware that a termination letter was sent to her email address until 5 March 2020.

[21] The SDA attempted to communicate via phone to the Applicant to determine what the Applicant wanted done regarding the termination and on 11 March 2020, Ms Armstrong of the SDA sent correspondence to Ms Voto asking for further instructions. On Thursday 19 March 2020, the SDA received instructions to lodge an unfair dismissal application.

[22] The SDA attempted correspondence with the Applicant over the following days to gain relevant facts and documents regarding the dismissal and reason for lateness. The F2 was lodged on 25 March 2020 by the SDA.

Granting an Extension

[23] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances.’ The meaning of this expression was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd (Nulty), where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 1 The Full Bench also noted that 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 can be considered exceptional. This has aptly been described as a ‘high hurdle’ for Applicants.2

[24] The decision in Nulty concerned the expression ‘exceptional circumstances’ in the context of s 365 of the Act however its reasoning is also applicable to s 394(3). 3 The relevant extract from Nulty is as follows:4

[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.

[25] Section 394(3) requires the Commission to consider the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

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

[26] In concluding whether to grant an extension, it is important to refer to relevant case law. Recently, Burchardt J elucidated the principles in relation to a limitation period and subsequently, the discretionary exercise in extending any such period: 5

[3] Reference has been made by both parties to the decision of Marshall J in the well-known case of Brodie-Hanns v MTC Publishing Ltd (1995) 67 IR 298 in which His Honour Marshall J set out a number of matters which would be described as a summary of principles applicable to applications of this sort, and I do, of course, have regard with respect to those, although I would echo something said in a slightly different context.

…

[5] In the very helpful submissions of the respondent there is a quotation from the judgment of White J in Clarke v Service to Youth Incorporated [2013] FCA 1018. I propose to read the following:

Brodie-Hanns was decided before the High Court’s decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In that case, after reviewing the rationale for limitation periods, McHugh J (with whom Dawson J agreed) said at [553]:

A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. A limitation period is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.

[6] With respect, I bear that observation well in mind.

[7] To continue the quote:

Similarly, Toohey & Gummow JJ said at [547]:

The discretion is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well-established principles an applicant must satisfy the Court grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of discretion. But the ultimate onus of satisfying the Court that time should be extended remains on the applicant.

…

The relatively short limitation period of 14 days may be understood as a legislative recognition of that difficulty. The Parliament intends that applications under section 371 should be brought promptly so that the practical difficulties which an order for reinstatement can occasion can be minimised. In my opinion, this is an important consideration in relation to applications of the present kind. Accordingly, I proceed on the basis that it is for the applicant to satisfy the Court that the extension of time is appropriate. That onus is to be discharged in the context that the legislature has fixed a short limitation period.

Criteria to Consider under s 394(3)
[27] I will now step through the criteria under s 394(3) in determining whether to exercise my discretion in granting an extension.

Reason for the delay

[28] The Act does not indicate what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or reasonable explanation. 6 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd a Full Bench noted that the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.7 The relevant extract is as follows:8

[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.

[29] The Applicant’s primary argument is that in spite of the termination letter being emailed to the email address that she had advised was her new email address she did not open the email until the 5 March 2020. From which point she forwarded it to her union representative who was unaware of the termination. Following some actions, the SDA filed on behalf of the Applicant on 24 March 2020. Clearly the chain of events is somewhat elaborate: a change of email address, a homeless applicant with few resources suffering from domestic violence, very limited funds, stolen property and an inability to be easily contacted. Ultimately, the Applicant points to the combination of all these factors as reasons for the delay.

[30] No doubt the Applicant’s capacity to address this matter has been significantly impacted by their personal circumstances. In addition to their immediate need to access accommodation, basic services and financial assistance, the Applicant had been suffering some mental distress which was supported by medical certificates. The Applicant had informed the Respondent of her personal situation throughout this process and held the genuine belief the employer would not make a determination on the matter until she was in a position to provide a final response to the allegations raised.

[31] The circumstances in the Applicant’s case are unique considering the fact that she was residing in a shelter, did not have access to internet or a phone for a period of time, lacked funds and was suffering from a psychological condition due to domestic violence.

[32] I consider these to be positive factors towards granting an extension.

When the person became aware of the dismissal after it had taken effect

[33] On the evidence provided by the Applicant she was not aware of the termination until 5 March 2020. As mentioned above, she was residing in a women’s shelter with no access to internet at the establishment and no laptop as that had been stolen. Once she became aware, she contacted her representative the same day. The Respondent did identify that there were two periods that the Applicant may have become aware of her dismissal through accessing her email account in February.

[34] Without a forensic analysis of the Applicant’s email one will never know if indeed the Applicant saw the email and did not open it or chose to ignore it. Given however the Applicants circumstances were rather extreme and her view that there was to be no further action on the show cause letter it is conceivable that the Applicant remained oblivious to the email from the employer. In such circumstances I take a cautious view that given the Applicant was facing a higher order issue in her life, domestic violence and separation from a violent partner that she did not have the requisite focus on remaining in touch with her employer.

[35] Noting the comments of VP Hatcher, DP Wells and C. Johns at [35] of Ayub v NSW Trains [2016] FWCFB 5500:

[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email addres designated by the addressee. There may be circumstances in which mere incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.

[36] I consider that taking into account all her circumstances, the Applicant was unable to access her email and read the termination letter until 5 March 2020, when she then become aware of her dismissal. However, as will become apparent, the reasons provided by the Applicant are sufficient even if she had become aware at an earlier point in time.

Action taken to dispute the dismissal

[37] Any action taken by an employee to contest the dismissal, other than other than applying under the Act, can be treated as favourable for the purposes of granting of an extension of time. 9

[38] The Applicant outlined that she intended to dispute the dismissal once she became aware of the termination letter. The SDA once having confirmed details did then lodge the claim.

[39] I consider that this action should be weighted as a neutral factor in explaining the reason for the Applicant’s delay in lodging in the Commission.

Prejudice to the employer

[40] Neither the Respondent, nor myself, identified any prejudice to the employer due to the delay. I consider this factor to be neutral.

Merits of the application

[41] The merits of this case have not been the subject of a hearing and therefore have not been fully explored or tested. Therefore, I will consider them neutral in my consideration of this extension of time application.

Fairness as between the person and other persons in a similar position.

[42] I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[43] There are two salient points which require determination in this extension of time. The first relates to when the Applicant gained access to her emails, which impacts when she was notified of her dismissal and therefore influences how long an extension is being requested. The second is determining whether the reasons provided given the delay are sufficient to explain that period.

[44] The Applicant provided evidence of domestic violence, illness, homelessness, theft of property and a lack of funds during the hearing. She has provided documentary evidence in support of this and I am satisfied that she has experienced true hardship, genuine struggle the likes of which I do not often see. While I am satisfied the Applicant did not gain access to her emails before 5 March 2020, even if she had, the culmination of personal circumstances the Applicant has experienced demand that an extension be granted. The test set out under the Act requires extraordinary circumstances and I find that the combination of the factors are extraordinary and allow for an extension. “A limitation period is the general rule; an extension provision is the exception to it” – the facts of this case are exceptional.

[45] The jurisdictional objection is dismissed and I will now proceed to hear the merits of the matter.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR723107 >

 1   [2011] FWAFB 975. See the decision of Deputy President Coleman in Matthew Simari v Australian Aged Care Group Pty Ltd [2020] FWC 403, for his analysis of Nulty, which I have adopted.

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

 3   Matthew Simari v Australian Aged Care Group Pty Ltd [2020] FWC 403, [6].

 4   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]-[14].

 5   Molini v S J Display Group Pty Ltd [2020] FCCA 2390, [3]-[7] (Judge Burchardt).

 6   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9] (Gostencnik DP); Roberts v Greystanes Disability Services [2018] FWC 64, [16] (Hatcher VP).

 7   [2018] FWCFB 901, [39].

 8   Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, [38] – [40].

 9   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.