Amanda Wallis v Trustee for the Two Towers Discretionary Trust T/A Second Valley Caravan Park and Jetty Store

[2018] FWC 3668

[2018] FWC 3668

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amanda Wallis
v
Trustee for the Two Towers Discretionary Trust T/A Second Valley Caravan Park and Jetty Store
(U2018/4754)

COMMISSIONER PLATT ADELAIDE, 21 JUNE 2018

Application for an unfair dismissal remedy - extension of time - application granted.

Summary

[1] Ms Amanda Wallis 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 Trustee for the Two Towers Discretionary Trust T/A Second Valley Caravan Park and Jetty Store (Two Tower) which her form F2 Unfair Dismissal Application advised took effect on 13 April 2018.

[2] Ms Wallis filed her unfair dismissal application in the Commission on 7 May 2018. Ms Wallis contended that she first became aware of her dismissal on 25 April 2018 and that accordingly the application was made within time. In the alternative, Ms Wallis contended at Paragraph 1.4 of her application:

“1.4.1 If the Applicant is outside the 21 day time, this is solely because the Respondent purported to terminate the Applicant’s employment on 13 April 2018 by sending a letter of that date to the Applicant’s post office address at Normanville.

1.4.2 The Applicant did not receive the letter until 25 April 2018 when she collected her mail from the post office mail box.

1.4.3 The Applicant was on annual leave as at 13 April 2018 and on 26 April 2018 understood a prearranged interstate trip, and did not return to Adelaide until 3 May 2018.

1.4.4 Such circumstances constitute exceptional circumstances for the purpose of s.394(3).”

[3] On 16 May 2018, Mr Gregory Woods on behalf of Two Towers lodged a Form F3 Employer Response which indicated that the dismissal occurred on 13 April 2018 and raised a jurisdictional objection on the basis that the application was lodged out of time, and that the dismissal was consistent with the Small Business Dismissal Code. This decision only deals with the extension of time issue.

[4] On 4 June 2018, Ms Annabelle Narayan of Worrells Solvency & Forensic Accountants (Worrells) advised the Commission that Mr Nick Cooper of Worrells had been appointed as liquidator of Torre Two Pty Ltd which is the Trustee for the Two Towers Discretionary Trust. A document purporting to be a notice of resolution appointing Mr Cooper of Worrells as liquidator for the purposes of winding up signed by Mr Gregory Woods on 23 May 2018 was supplied.

[5] On 5 June 2018 the parties (including Worrells) were advised that a Directions conference would be conducted on 7 June 2018.

[6] On 6 June 2018, Ms Narayan advised that the Respondent had insufficient funds to be represented any further in the matter.

[7] On 7 June 2018, the Directions conference was conducted. Mr Bourne represented Mr Wallis. Permission was granted pursuant to s.596(2). Ms Narayan from Worrells had previously advised that the liquidator was unfunded and would not attend. Directions were made that the extension of time issue would be considered at a telephone conference on 21 June 2018. Ms Wallis was directed to provide a statement concerning the extension of time and any documents to be relied upon by 18 June 2018. Two Towers was invited to file any material in reply by 20 June 2018.

Submissions

[8] Ms Wallis provided a written submission and a witness statement which is relevantly summarised as follows:

•  She commenced employment with Two Towers in December 2016.

•  The proprietors of Two Towers are Mr Greg Woods and Ms Joanne Trabilsie.

•  Two Towers were aware of her email address, residential and postal address.

•  Ms Wallis had agreed with Ms Trabilsie to take annual leave between 12 April 2018 and 8 May 2018.

•  There were no issues raised by her employer prior to her departure for annual leave which indicated any potential for her employment to be at risk.

•  On 25 April 2018 she attended her post office box and received an envelope (un-postmarked) containing a dismissal letter dated 13 April 2018. This was the first time she became aware that she had been dismissed and contended that the dismissal took effect on that date.

•  She travelled to the Gold Coast on 26 April 2018 and returned on 3 May 2018.

•  Ms Wallis sought legal advice on 5 May 2018.

•  The application was lodged on 7 May 2018.

•  Ms Wallis contends that the application was made within the 21 days of her becoming aware that the dismissal took effect.

[9] Two Towers did not file any material.

[10] A Hearing was conducted by way of telephone conference on 21 June 2018. A sound file record of the telephone conference was kept. Ms Wallis was self-represented and no one appeared on behalf of Two Towers.

[11] Ms Wallis reiterated her submissions.

Applicable Law

[12] Section 394 of the Act 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.”

[13] 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 Ltd¹which 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 every day 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.”

Consideration

[14] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 2 The communication must be received by the employee in order for the termination to be effective.3

[15] In this case the communication was in writing and Ms Wallace did not receive the written communication until 25 April 2018. Accordingly the dismissal did not take effect until that date. The application was therefore lodged within 21 days of the dismissal taking effect.

[16] If the dismissal took effect on 13 April 2018 this unfair dismissal application by Ms Wallis was made 14 days outside of the 21 day time limit and therefore can only be pursued if this time limit is extended.

[17] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[18] Ms Wallis submits that the reason for the delay was caused by her not being aware that the dismissal took place until 25 April 2018. Ms Wallis’ statement annexed flight records which supported her contention that she was interstate from 26 April until 3 May 2018. Upon her return she promptly sought legal advice and lodged the claim on 7 May 2018.

[19] I accept that the delay between 13 April and 25 April was as a result of Ms Wallis not attending her post office box. Two Towers has not explained why it did not communicate the dismissal by contacting Ms Wallis via other means. I accept the explanation for this part of the delay.

[20] Ms Wallis explains the period of the delay between 26 April and 3 May 2018 as a result of her undertaking a previously arranged holiday. Although it would have been prudent to attend to this matter earlier Ms Wallis quickly contacted her solicitor upon her return and lodged her application within 12 days of her becoming aware of her dismissal.

[21] Ms Wallis has explained all of the delay.

[22] If there is a credible explanation for the entirety of the delay then this weighs more heavily in favour of a finding that there are exceptional circumstances: Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters. 4

Whether the person first became aware of the dismissal after it had taken effect

[23] Ms Wallis did not become aware of the dismissal until 25 April 2018.

Any action taken by the person to dispute the dismissal

[24] Ms Wallis contacted her lawyer on 5 May 2018 with the claim being lodged on 7 May 2018.

Prejudice to the employer (including prejudice caused by the delay)

[25] There is no submission that the granting of an extension of time represents prejudice to Two Towers.

The merits of the application

[26] 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.

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

[27] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[28] The application was made within time. In the alternative, taking into account the material before me and my finding above, I am satisfied that Ms Wallis’ circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted. An Order⁵ reflecting this decision will be issued.

[29] The matter will be further listed for Hearing on 30 July 2018 at 10:00am.

COMMISSIONER

Appearances:

A Wallis the Applicant.

Hearing details:

2018.

Adelaide:

21 June.

Printed by authority of the Commonwealth Government Printer

<PR608327>

1 [2011] FWAFB 975.

 2   Burns v Aboriginal Legal Service of Western Australia (Inc) (2000) AIRCFB (21 November 2000) [24].

 3   Ayub v NSW Trains[2016] FWCFB 5500 [17].

 4   [2018] FWCFB 901.

5 PR608328.