Elderly school crossing supervisor granted extension for unfair dismissal claim

“Not [being] technologically savvy” was one of the reasons an elderly woman relied on to excuse her lack of punctuality in regards to handing in her unfair dismissal claim outside of the 21-day time frame.

Mavis Rofe, who has operated as a school crossing supervisor with the City of Greater Bendigo (Bendigo Council) for the past 16 years, claims she was unfairly dismissed by her employer, who terminated her employment on the basis that she could no longer perform the inherent requirements of the role.

Rofe (84) “adores” her job, particularly loving her interactions with the children. The Bendigo Council received independent medical advice, which purportedly established that Rofe couldn’t complete her job role any longer, to which Rofe contested – claiming her dismissal was unfair.

She claimed that at the time of her termination, she could, in fact, perform the inherent requirements of the job, and she had a physio report to support that claim. She also alleged that there were issues with the procedural fairness of the dismissal, as Rofe wasn’t provided with the medical evidence that justified the termination of her employment.

After her termination, Rofe attempted to file an unfair dismissal claim but ran into a few hurdles, which prevented her from handing the claim to the Fair Work Commission within the 21-day time frame.

Her employment was terminated on 18 April 2024 – reinforced by a termination letter dated to that exact day – to which Rofe attended her lawyers the following day, who alerted her to the fact that the application had to be completed in a 21-day time frame.

The cut-off date for Rofe’s unfair dismissal claim was 9 May 2024. Rofe filed her application to the commission on 21 May 2024, which is 12 days after the cut-off date.

It was then commissioner Susan Allison’s decision to either grant Rofe an extension remedy for her application or to dismiss the application.

From Rofe’s evidence, there was a variety of moving parts that went into her inability to return the unfair dismissal form on time. At 84 years old, Rofe, on her own admission, stated that she’s “not technologically savvy” and lives by herself, without access to regular use of technology. She relies on her son or her friend, Anne-Marie Flood, for support with technical matters.

As previously stated, Rofe visited her lawyers the following day after her termination. On the unfair dismissal claim, her lawyers advised her that they would charge “four or five thousand dollars” to run the claim. This resulted in Rofe taking the application, planning to fill it out and filing it herself, with the assistance of her son.

Over the following weeks, her son fell ill and spent some time in the hospital. Because of his illness, her son was only able to help her with the application on 7 May 2024 – just two days before the deadline.

However, they were able to finish the application that same day. Rofe then returned to her lawyers to double-check that the application had been completed properly. After the form was checked, the receptionist gave Rofe an envelope to post the application.

The application was posted after 5pm on 7 May 2024; however, the FWC didn’t receive the commission until 21 May 2024.

Overall, Rofe gave evidence that she did not have evidence to a computer or internet to file the application. She did not think to ring the commission, nor to send the letter by express post. She was also confused about when the 21-day time frame commenced.

Allison said: “None of the reasons provided by Mrs Rofe considered individually would provide an acceptable reason for delay.”

She referenced the technology deficiency, the unawareness of the 21-day time frame, and the time that Australian Post took to deliver the application as not acceptable reasons, individually, for a delay.

“However, I am of the view that when a combination of Rofe’s individual circumstances are considered together, there is an acceptable reason for delay,” said Allison.

Allison listed these combined reasons as an acceptable excuse for a delay:

• “Rofe is not tech-savvy, does not have a computer or internet at home; and
• “Rofe relies on the support of her son, a friend and her WorkCover lawyers for assistance with technical and legal matters; and
• “Rofe’s son was ill for a substantial period and was not able to assist Rofe until 7 May 2024; and
• “While [her lawyers] were not representing Rofe in this matter, it appears Mrs Rofe continued to place reliance on [them]. Rofe attended [her lawyers] to ‘check’ her application on 7 May 2024, and at that time, the receptionist provided Rofe [with] an envelope to post her application. It appears clear that Rofe reasonably assumed that [her lawyers] supported her posting the application and therefore the application was not in danger of being out of time.”

“For the reasons given above, I have found that Mrs Rofe’s reasons for delay, and the action Mrs Rofe took to dispute her dismissal weigh in favour of a finding of exceptional circumstances,” Allison said.

“Taking into account all of the circumstances of this matter, I am satisfied that there are exceptional circumstances, and I should exercise my discretion to allow a further period of time for Mrs Rofe’s application to be made.”