1
Fair Work Act 2009
s.394—Unfair dismissal
Porscha Juwa
v
Blue Cross Animals Society of Victoria
(U2015/8409)
DEPUTY PRESIDENT KOVACIC CANBERRA, 11 AUGUST 2015
Application for relief from unfair dismissal - extension of time - no exceptional circumstances
warranting allowing a further period for the making of an application - application
dismissed.
[1] Ms Porscha Juwa (the Applicant) made an application on 11 June 2015 under s.394 of
the Fair Work Act 2009 (the Act) alleging that the termination of her employment on 19 May
2015 was harsh, unjust and unreasonable. On 19 June 2015, Blue Cross Animals Society of
Victoria (Blue Cross - the Respondent) objected to the application on the grounds that it had
been made outside the 21 day timeframe specified in s.394(2) of the Act. The application was
received by the Fair Work Commission (the Commission) two days outside the 21 day
statutory timeframe.
[2] On 17 June 2015 a timetable outlining the requirements for the filing of an outline of
argument and any evidentiary material to be relied on was sent to the parties. The matter was
heard on 24 July 2015.
[3] At the hearing Ms Juwa was self-represented, while Ms Niki Howells-Schramm of the
Victorian Employers’ Chamber of Commerce and Industry appeared for Blue Cross.
[4] For the reasons outlined below I have found that there are no exceptional
circumstances warranting the granting of a further period for the making of an application
under s.394 of the Act. Accordingly, the application cannot proceed and is therefore
dismissed.
Background
[5] Ms Juwa commenced employment with Blue Cross on 7 April 1997 and at the time of
her dismissal was a Property/Shelter Manager.
[6] In March 2015 a staff member made a complaint against Ms Juwa alleging that
Ms Juwa had engaged in bullying conduct. Blue Cross initiated an investigation immediately
and, due to the seriousness of the allegations, stood Ms Juwa down on full pay. The
Respondent’s staff were also instructed not to discuss the issue of the investigation. The
[2015] FWC 5476
DECISION
E AUSTRALIA FairWork Commission
[2015] FWC 5476
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investigation concluded that Ms Juwa had for some period of time not only bullied the
complainant but also created a culture of fear and intimidation. In the light of the findings of
the investigation, Blue Cross arranged a meeting with Ms Juwa which occurred on 19 May
2015. Ms Juwa was informed that she could bring a support person to that meeting. That
meeting concluded on the basis that Ms Juwa’s employment was terminated with immediate
effect.
[7] As noted above, Ms Juwa’s unfair dismissal application was received by the
commission on 11 June 2015.
The Relevant Legislation
[8] Section 394 of the Act provides:
“394 Application for Unfair Dismissal Remedy
394(1) A person who has been dismissed may apply to the FWC for an order under
Division 4 granting a remedy.
394(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
394(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 first person 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.”
Whether to allow a further period for the application to be made under s.394(2)
[9] In deciding whether to allow a further period for an application to be made the
Commission must take into account the matters set out in s.394(3) above. I will deal with each
of those matters separately.
(a) The reason for the delay
[10] Ms Juwa submitted that she started to make enquiries with the Commission and
preparing her application immediately after her dismissal. However, on 29 May 2015, i.e. 10
days after her dismissal, Ms Juwa suffered a miscarriage. Ms Juwa submitted that as a result
her unfair dismissal application became the last thing on her mind.
[11] Ms Juwa further submitted that she had posted her application on Thursday, 4 June
2015 expecting that it would be delivered on 9 June 2015. Ms Juwa contended that she posted
[2015] FWC 5476
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her application as she did not have electronic copies of all the material which she intended to
attach to her application nor did she have access to a scanner.
[12] At the hearing, Ms Juwa advised that she posted her application by ordinary post
between 6.00pm and 6.30pm on 4 June 2015. Ms Juwa acknowledged that not sending her
application by Express Post was poor judgement on her part. Ms Juwa also indicated that she
was not aware of the scope to lodge her application by telephone. Further, Ms Juwa submitted
that she contacted the Commission on Tuesday, 9 June 2015 to see whether her application
had been received. Also at the hearing, Ms Juwa acknowledged that she was aware of the 21
day time frame to file an application.
[13] Blue Cross submitted that Ms Juwa had not provided any medical evidence
establishing the health problems which she contended delayed the filing of her application.
Blue Cross further submitted that the fact that Ms Juwa had posted her application on 4 June
2015, which was within the 21 day timeframe, indicates that Ms Juwa’s health did not
preclude her from lodging her application within the 21 day timeframe.
[14] Blue Cross also submitted that Ms Juwa could have obtained free information over the
telephone from the Commission regarding how to file an unfair dismissal claim. If she had
this information she could have chosen a form of filing that guaranteed filing on time. Blue
Cross further submitted that these factors do not constitute exceptional circumstances
warranting the granting of a further period for the making of the application.
[15] From the above it is clear that Ms Juwa relies on two key grounds as the reasons for
her application being lodged outside the 21 day timeframe. The first of these relates to her
unfortunate miscarriage. However as pointed out by Blue Cross no medical evidence was
provided by Ms Juwa indicating to what, if any, extent she was precluded from finalising her
application as a result of the miscarriage and any related medical treatment. Further, the fact
that Ms Juwa posted her application late on 4 June 2015 indicates that she was not
incapacitated for the entire 21 day period.
[16] The second reason relied upon by Ms Juwa relates to the length of time taken by
Australia Post to deliver the letter containing her application. There are several relevant
considerations in this regard. First, Ms Juwa acknowledged at the hearing that she did not post
her application until between 6.00pm and 6.30pm on 4 June 2015. The practical impact of this
is that her letter was unlikely to have been processed by Australia Post until the next day.
Relevantly, the Australia Post website provides the following advice to customers regarding
domestic letters:
“To ensure your mail item is processed and on its way the same day, you should post it:
before closing time at a Post Office, or
before the time displayed on a street posting box. Items can generally be posted until
6pm Monday to Friday, however, other times apply in many areas.
Please note that items posted on weekends or public holidays will commence their
delivery journey the next business day.”1
1 http://auspost.com.au/parcels-mail/domestic-letters.html
http://auspost.com.au/parcels-mail/domestic-letters.html
[2015] FWC 5476
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[17] The Australia Post website also provides guidance regarding indicative delivery times
for domestic letters and parcels. For letter deliveries between metropolitan areas of capital
cities and rural locations within the same state the website states that the estimated delivery
time is two days2.
[18] The Australia Post website also has a tool which allows customers to calculate the
estimated delivery time for their letter/parcel. The Commission entered the dates relied upon
by Ms Juwa in this case into the tool. The resulting estimated delivery time, based on a letter
posted late on 4 June 2015 but processed the following day the delivery time from Ms Juwa’s
home in Warburton to Melbourne, was between 8 and 11 June 20153. In other words, there
was a risk that by sending the application by ordinary post that it would be delivered outside
the 21 day timeframe. As acknowledged by Ms Juwa at the hearing, not sending her
application by Express Post was poor judgement on her part.
[19] Finally, I note that Ms Juwa contacted the Commission on 9 June 2015 to see whether
her application had been received. As previously noted, this was the last day of the 21 day
timeframe. It is not clear why Ms Juwa did not seek guidance from Commission staff as to
what she could do to ensure that her application was lodged within time, e.g. lodge her
application over the telephone.
[20] Together, these factors do not support a finding that the reasons for the delay
constitute exceptional circumstances.
(b) Whether the first person became aware of the dismissal after it had taken effect
[21] It is not disputed that Ms Juwa was aware that her employment had been terminated
on 19 May 2015.
[22] This does not support a finding of exceptional circumstances.
(c) Any action taken by the person to dispute the dismissal
[23] Ms Juwa submitted that at the meeting of 19 May 2015 where her employment was
terminated she asked whether the parties could discuss the matter further. As Blue Cross
declined to do so, Ms Juwa stated that her unfair dismissal application was the next step she
took to dispute her dismissal as she was not aware that she could have taken further action to
dispute her dismissal prior to that.
[24] Blue Cross submitted that Ms Juwa took no action to dispute her dismissal.
[25] Ms Juwa’s lack of action to dispute her dismissal militates against a finding of the
existence of exceptional circumstances.
(d) Prejudice to the employer (including prejudice caused by the delay)
[26] Ms Juwa submitted that Blue Cross would not be prejudiced by virtue of the fact that
her application had been received by the Commission two days outside the 21 day timeframe.
2 http://auspost.com.au/parcels-mail/domestic-delivery-times.html
3 https://auspost.com.au/parcels-mail/delivery-times.html
https://auspost.com.au/parcels-mail/delivery-times.html
http://auspost.com.au/parcels-mail/domestic-delivery-times.html
[2015] FWC 5476
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[27] Blue Cross submitted that they would suffer prejudice in having to defend the claim
were an extension of time granted.
[28] I consider the issue of prejudice to be a neutral consideration.
(e) The merits of the application
[29] Ms Juwa contended that the investigation conducted by Blue Cross was not
undertaken impartially as she considered the investigator had a conflict of interest. Ms Juwa
also submitted that the investigation had a number of flaws, for instance a number of staff and
volunteers who were present or involved in the allegations were not interviewed and the
witnesses provided by Ms Juwa were similarly not contacted or interviewed as part of the
investigation. Ms Juwa further contended that the investigation was not as transparent as she
believed it needed to be and that at no stage was there any mention of misconduct by Blue
Cross.
[30] Blue Cross refuted much of Ms Juwa’s submissions and contended that in its view the
dismissal was not harsh, unjust or unreasonable. At the hearing, Blue Cross emphasised that
Ms Juwa’s dismissal followed a thorough investigation and that Ms Juwa was provided with
an opportunity to respond to the investigation findings before she was dismissed.
[31] Based on the material before the Commission, it is clear that aspects of the
investigation which ultimately resulted in Ms Juwa’s dismissal are disputed. In those
circumstances, I consider this factor to be a neutral consideration.
(f) Fairness as between the person and other persons in a similar position
[32] Ms Juwa did not address this factor.
[33] Blue Cross submitted that should Ms Juwa be granted an extension of time that she
would be significantly advantaged vis-à-vis other persons in a similar position who have been
dismissed due to a lack of exceptional circumstances.
[34] I consider this factor to be a neutral consideration.
Conclusion
[35] The question of exceptional circumstances was dealt with by a Full Bench of Fair
Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group4 (Nulty) in the
following way:
“[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
4 (2011) 203 IR 1
[2015] FWC 5476
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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.”
[36] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the
decision in Nulty, I find that there are no exceptional circumstances warranting the granting of
further period for the making of an application for an unfair dismissal remedy. Accordingly,
the application cannot proceed and is therefore dismissed. An order to that effect will be
issued with this decision.
Appearances:
P. Juwa on her own behalf.
N. Howells-Schramm for Blue Cross Animals Society Victoria.
Hearing details:
Melbourne.
2015:
July 24.
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Price code C, PR570661
THE FAIR WORK COMMISSION AUSTRALIA. DEPUNPRESIDENT SEAL THE
