Alexandra Kerkemeyer v Rembrandt Living T/A Rembrandt Living the Art of Living

Case •

[2018] FWC 515

•

24 JANUARY 2018
[2018] FWC 515

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Alexandra Kerkemeyer

v

Rembrandt Living T/A Rembrandt Living the Art of Living

(U2017/13031)

COMMISSIONER PLATT

ADELAIDE, 24 JANUARY 2018

Application for an unfair dismissal remedy – extension of time – application dismissed.

  1. Ms Kerkemeyer has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Rembrandt Living T/A Rembrandt Living the Art of Living (Rembrandt) which her form F2 Unfair Dismissal Application advised took effect on 14 November 2017.

  1. The application was lodged on 7 December 2017.

  1. Ms Kerkemeyer’s application did not recognise that it was made beyond 21 days from the date of dismissal.

  1. On 18 December 2017, Rembrandt lodged a form F3 Employer Response which indicated that the dismissal occurred on 14 November 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time.

  1. On 20 December 2017, my Associate corresponded with Ms Kerkemeyer and Rembrandt and advised that the extension of time issue would be considered at a telephone conference on 17 January 2018. The telephone conference was subsequently adjourned to 18 January 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Ms Kerkemeyer was directed to provide a statement concerning the extension of time and any documents to be relied upon by 10 January 2018. Rembrandt was invited to file any material in reply by 15 January 2018.

  1. Ms Kerkemeyer provided a written submission which is summarised as follows:

·  She began filling out questions that were easy to answer on the form F2 Unfair Dismissal Application on 20 November 2017. She also signed and dated the application form at this time.

·  She suffers from dyslexia, was stressed from losing her job and was worrying about how she was going to pay the bills. 

·  She found it difficult to complete questions 3.1 and 3.2 on the application form and therefore took her time in answering them. She also needed someone to proof read the application in order to fix any incorrect grammar.

·  She was under the impression that the application form had to be sent in by the 21st day and not received by the 21st day. Therefore, she posted the application on the 21st day unaware that it would take a number of days to get from Pasadena, SA to Adelaide CBD.

·  She did not intend on the application being filed late.

  1. Rembrandt was invited to provide submissions but did not do so.

  1. A hearing was conducted by way of telephone conference on 18 January 2018. A sound file record of the telephone conference was kept. Ms Kerkemeyer represented herself and Mr Richard Budd represented Rembrandt.

  1. Ms Kerkemeyer gave evidence at the hearing, her position is summarised as follows:

·  She had sought assistance from her Union in relation to the dismissal.

·  Her sister had proof read the application form for her.

·  She misunderstood the requirement to submit the application within 21 days and believed that she had to simply post the application within that period.

  1. Rembrandt gave brief oral submissions and contended that there were no exceptional circumstances.

  1. During the hearing it appeared that Ms Kerkemeyer was under stress and she advised that she was not well and needed additional time to prepare her case. I determined to adjourn the matter to 2.00pm 24 January 2018. Both parties were provided with the opportunity to provide additional information.

  1. In the Notice of Listing, it was suggested that Ms Kerkemeyer provide the following material by no later than 4.00pm 23 January 2018:

1.Details of how the application form was located

2.Details of any advice or assistance sought or provided by the Union

3.A copy of the application form used to prepare the application

4.Details of when contact was made with her sister to proof read the application form

5.A statement or email from her sister stating the date that she proof read your application form

6.Details of how she came to understand that the application must be sent by the 21st day as opposed to received by the 21st day

7.Any medical evidence which supports her position that she suffers from dyslexia and how that condition impacts on your capacity to complete an application form and lodge it on time

8.Details of any other action taken to contest the dismissal

  1. Ms Kerkemeyer was reminded via email from my Associate at 8.55am on 23 January 2018 that any additional information was due that day, however she failed to provide any additional information in support of her case. 

  1. On 22 January 2018, Mr Budd on behalf of Rembrandt provided a written submission which is summarised as follows:

·  Ms Kerkemeyer has provided no supporting evidence to explain the reason for the delay in this matter.

·  The circumstances described in Ms Kerkemeyer’s email dated 10 January 2018 are not exceptional.

·  Whilst there is no record of dyslexia on Ms Kerkemeyer’s file, Rembrandt do not dispute this fact.

·  Ms Kerkemeyer had ample opportunity to seek assistance and had indicated during performance counselling meetings that she was supported and advised by a Union representative even though the representative never attended the meetings.

·  In accordance with Rose v BMD Constructions Pty Ltd,[1] the stress of losing her job is not in itself sufficient grounds for the delay.

·  Ms Kerkemeyer did not properly read the application form which clearly states that the application must be lodged within 21 calendar days after the dismissal took effect.

·  Ms Kerkemeyer could have lodged the application via email, fax or in person, all of which are options that are significantly quicker than a postal lodgement.

·  Mere ignorance of the statutory timeframe is not an exceptional circumstance.

·  The fact that Ms Kerkemeyer knew little about her rights is not an exceptional circumstance.

·  The merits of the matter weigh in favour of Rembrandt.

·  Other than this application, Ms Kerkemeyer has not contacted Rembrandt to contest the dismissal.

  1. On 24 January 2018 at 11.55am Ms Kerkemeyer made a request that the hearing be adjourned on the basis that she had a gas leak in her house. Ms Kerkemeyer advised my Associate via telephone that she had a technician attending the house between 10.00am and 3.00pm. 

  1. On the basis of the information provided, the matter was adjourned to 3.00pm 24 January 2018. At 14.23pm my Associate emailed the parties reminding them to dial in to the conference at 3.00pm (ACDT), parties were advised that if they did not dial in, the matter would proceed in their absence.

  1. By 3.00pm Ms Kerkemeyer had not dialled in to the conference, my Associate emailed and left a voice message for Ms Kerkemeyer advising her that the matter would proceed at 3.10pm.

  1. The hearing resumed at 3.10pm on 24 January 2018. Mr Richard Budd represented Rembrandt. Ms Kerkemeyer failed to dial in to the conference. The telephone hearing proceeded in Ms Kerkemeyer’s absence. A sound file record of the telephone conference was kept.

  1. Mr Budd relied on the written submission which had been served on Ms Kerkemeyer.

  1. Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(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).

(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.”

  1. This unfair dismissal application by Ms Kerkemeyer was made 2 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

  1. I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[2] which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

  1. I make the following findings.

  1. The evidence presented does not satisfy me that that the content of the F2 Unfair Dismissal application form could cause Ms Kerkemeyer to erroneously believe that the 21 day limit applied to the posting of the form.

  1. I accept that Ms Kerkemeyer was and continues to be stressed by her dismissal but this of itself is not an exceptional circumstance.

  1. There is no medical evidence before me that supports Ms Kerkemeyer’s medical condition and its impact on her capacity to lodge her application in a timely fashion.

  1. I accept that a person who is dyslexic may have difficulty in completing the application but it appears that support was provided by a relative of Mr Kerkemeyer. Whilst that might explain part of the delay, no evidence was filed concerning the date when the assistance provided.  I also note that Ms Kerkemeyer appears to have had some discussions with her Union.

  1. There is no evidence that Ms Kerkemeyer took any action to contest the dismissal other than the lodgement of this application.

  1. The applicant needs to provide a credible explanation for the entire period of the delay,[3] but has not done so.

  1. There is no submission that the granting of an extension of time represents prejudice to Rembrandt.

  1. In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.

  1. Consideration of fairness relative to other persons in similar positions is also a neutral factor.

Conclusion

  1. For the reasons I have set out above, I am not satisfied that Ms Kerkemeyer’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order[4] reflecting this decision will be issued.


COMMISSIONER

Appearances (by telephone):

Ms A.Kerkemeyer (18 January 2018) the Applicant.

Mr R.Budd on behalf of the Respondent.

Hearing (Conference) details:

2018.
Adelaide:
January 18 and 24.


[1] [2011] FWA 673

[2] [2011] FWAFB 975

[3] Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

[4] PR599811

Printed by authority of the Commonwealth Government Printer

<PR599810>

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