Andrea Hodson v RCR O’Donnell Griffin Pty Ltd T/A O’Donnell Griffin

[2015] FWC 5100

[2015] FWC 5100

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrea Hodson
v
RCR O’Donnell Griffin Pty Ltd T/A O’Donnell Griffin
(U2015/ 6033)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 31 JULY 2015

Application for relief from unfair dismissal - extension of time not granted.

[1] Mrs Hodson has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with O’Donnell Griffin Pty Ltd T/A O’Donnell Griffin (O’Donnell Griffin). At a telephone conference convened on 30 July 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion

[2] Mrs Hodson’s application was lodged on 20 June 2015. In that application Mrs Hodson advised that she considered she had been coerced into resigning her employment with effect from 27 February 2015. In her application, Mrs Hodson provided the following explanation for the late lodgement of her application:

“On my initial conversation with the Fair Work Ombudsman I was advised I had up to 6 years to make a claim.

I was scared of repercussions following bullying/harassment from management and Human Resources (HR). I was scared from what has happened and it has taken a while for me to get the courage to stand up against these people.

I was also unsure of what avenue to take due to the unusual series of events so I have been seeking advice from people in the industry, legal counsel and friends and family in order to come to this decision.” 1

[3] On 1 July 2015 my Associate corresponded with both Mrs Hodson and O’Donnell Griffin and advised that the extension of time issue would be considered through a telephone conference on 30 July 2015. Substantial information about the extension of time issue was provided to the parties. Mrs Hodson was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 23 July 2015.

[4] Additional information was received from Mrs Hodson in which she asserted that:

● On 4 February 2015 she was advised by the Fair Work Ombudsman that she had up to 6 years to lodge a claim with the Fair Work Commission,

● she sought advice from various different sources,

● she was unable to lodge a claim until she felt mentally and emotionally capable,

● she wished to ensure that the actions she took in lodging a claim were appropriate,

● she was affected by fear and depression,

● she undertook casual work from 3 March 2015 which extended until after 30 April 2015,

● she unsuccessfully sought to access legal advice, and

● she was unsure of the appropriate application form.

[5] The Employer’s Response to the application indicated that O’Donnell Griffin opposed the extension of time. O’Donnell Griffin also objected to the application on the basis that it asserted that Mrs Hodson had not been dismissed at the initiative of the employer.

[6] Mrs Hodson participated in the telephone conference. Ms Haslinger, of counsel, employed by the O’Donnell Griffin parent company, RCR Tomlinson Group, initially sought permission to appear for O’Donnell Griffin. That permission was not granted and Ms Tait of O’Donnell Griffin represented the employer. I note that no information beyond that supplied with the Employer’s Response to the application was required in this matter and my conclusions about the extension of time issue were reached fundamentally on the basis of all of the information provided to me by Mrs Hodson. I note that a sound file record of this telephone conference was kept.

[7] 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.”

[8] On the information before me I am satisfied that the application was made some 92 days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) 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.”

[9] I have taken into account each of Mrs Hodson’s reasons for the delay. I am not satisfied that the delay can be attributed to erroneous advice provided to her by the Fair Work Ombudsman (the FWO). Mrs Hodson confirmed that her contact with the FWO occurred after she was advised that she would be given different duties with O’Donnell Griffin and in circumstances where she considered these duties involved a demotion. Her contact with the FWO was made in relation to the potential to claim redundancy payments. Consequently I have concluded that the FWO gave her advice that she had 6 years in which to pursue a claim for redundancy payments rather than six years in which to pursue an unfair dismissal claim. Mrs Hodson explained that, on 1 April 2015, she spoke to the Fair Work Commission (the FWC) and was advised of the capacity to make an unfair dismissal application. In that same discussion she agrees that she was advised of the 21 day time limit. She elected not to pursue the application until such time as she had obtained further advice about the matter. I am not satisfied that any form of acceptable reason for the delay in the lodgement of the application after 1 April 2015 has been provided to me. Mrs Hodson detailed her stress associated with completing the application. No medically based evidence to support the proposition that Mrs Hodson was too stressed or otherwise incapable of lodging the application. There is nothing exceptional about Mrs Hodson’s attempts to obtain information from various different sources and I am unable to attribute the delay to any form of representative error. Mrs Hodson’s desire to ensure that she initiated the application for the appropriate reasons cannot represent an acceptable reason for the delay or an exceptional circumstance. Mrs Hodson’s decision to take on casual work cannot represent an exceptional circumstance and is, in any event, not easily reconciled with various of the other reasons she has provided. Finally, her uncertainty about which form to use does not represent an exceptional circumstance. None of these reasons for the late lodgement meet the requirements for an exceptional circumstance.

[10] It is clear from Mrs Hodson’s application that she was aware of the termination of her employment on the day it took effect because she provided two weeks notice of her resignation. Whilst I accept that Mrs Hodson obtained advice from a variety of different persons, and that before her resignation took effect she argued to O’Donnell Griffin that she was in effect being made redundant, I am not satisfied that these other actions represent challenges to the termination of her employment which establish exceptional circumstances.

[11] I think it most likely that an extension of time of this magnitude would prejudice the Respondent but I have not founded my decision in this matter on that premise.

[12] In terms of the merits of the application, the information before me does not enable a definite conclusion. Consequently, I have regarded the merits of the application as a neutral factor relative to the extension of time. I note that this decision, relating to an extension of time for an unfair dismissal application does not preclude Mrs Hodson from separately pursuing an action in pursuit of redundancy payments.

[13] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[14] Accordingly I have concluded that the material before me does not establish that Mrs Hodson’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR569841) giving effect to this decision will be issued.

Appearances (by telephone):

A Hodson on her own behalf.

S Haslinger for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

July 30.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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