Ashley Power v Baiada Farms Pty Ltd
[2019] FWC 1797
•20 MARCH 2019
| [2019] FWC 1797 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ashley Power
v
Baiada Farms Pty Ltd
(U2019/391)
COMMISSIONER PLATT | ADELAIDE, 20 MARCH 2019 |
Application for an unfair dismissal remedy – extension of time – application dismissed.
[1] Ms Ashley Power 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 Baiada Farms Pty Ltd (Baiada) which her form F2 Unfair Dismissal Application advised took effect on 17 December 2018.
[2] The material on the file indicates that Ms Power sent an incomplete Form F2 Unfair Dismissal application (with pages 1-3 missing) and insufficient payment to the Fair Work Ombudsman on 9 January 2019. An Australian Money Order stamped “Kapunda, 7 January 2019, SA 5373” in the amount of $50.00 was attached to the application. I infer from this information that the application was posted not earlier than 7 January 2019.
[3] The Fair Work Ombudsman express posted the application to the Commission; the application was received by the Commission on 11 January 2019. The Adelaide Registry contacted Ms Power in relation to the incomplete application. A complete application dated 1 February 2019 was subsequently received. A fee waiver application was granted on 1 February 2019.
[4] Ms Power’s application was received by the Commission on 11 January 2019. The application did not identify that it was made beyond 21 days from the date of dismissal.
[5] On 7 February 2019, Baiada lodged a form F3 Employer Response which indicated that the dismissal occurred on 17 December 2018 as a result of the repeated lateness of Ms Power. No jurisdictional objection was raised.
[6] There does not appear to be any dispute that Ms Power was dismissed on 17 December 2018 and was aware of the dismissal at that time.
[7] The application was received 4 days after the 21 day limited had expired.
[8] On 4 March 2019, my Associate corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 18 March 2019. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were emailed to the parties (and posted to Ms Power). Ms Power was directed to provide a witness statement concerning the extension of time issue and any documents to be relied upon by 11 March 2019. Baiada was invited to file any material in reply by 15 March 2019.
[9] Ms Power failed to submit any material by the due date and my Associate left a voice message on her telephone to that effect and sent an email in similar terms at 11:22am on 13 March 2019. A follow-up email requesting Ms Power to urgently contact my Chambers was sent at 1:39pm on 13 March 2019 and Thursday 14 March 2019. A further voice message was left for Ms Power by my Associate on 14 March 2019.
[10] No written submissions were received from the parties.
[11] On 13 March 2019 Baiada advised it would make a s.399A application, but no such application was provided to the Commission or Ms Power prior to the Hearing on 18 March 2019.
[12] A Hearing was conducted by way of telephone conference on 18 March 2019. A sound file record of the telephone conference was kept. Ms Power did not attend (my Associate left a voice message on her telephone and sent an email), Ms Chalmers represented Baiada.
[13] I advised Baiada that in the absence of a formal s.399A application being filed and being served on the Applicant I would not be in a position to further consider that matter.
[14] In respect of the extension of time matter Baiada submitted that:
• Ms Power has failed to adequately explain the delay;
• Other than the application, no other action was taken to dispute the dismissal; and
• Ms Power’s lateness was repeated and prolonged and that she had received a warning and a final warning, and accordingly merit was a consideration that should weigh against the granting of an extension of time.
Applicable Law
[15] 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.”
[16] 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
[17] Ms Power’s unfair dismissal application was made 4 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
[18] 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
[19] I accept that the application (despite being incomplete and accompanied by insufficient funds) was received by the Fair Work Ombudsman on 9 January 2019. It appears to have been posted on 7 January 2019 which was the last day for the application to have been received by the Commission. Even if the application had been correctly addressed it appears that it would have been received late.
[20] Ms Power provided no explanation for the delay.
Whether the person first became aware of the dismissal after it had taken effect
[21] Ms Power was aware of the dismissal on the date it took effect.
Any action taken by the person to dispute the dismissal
[22] No action was taken to dispute the dismissal other than the lodgement of this application.
Prejudice to the employer (including prejudice caused by the delay)
[23] There is no submission that the granting of an extension of time represents prejudice to Baiada.
The merits of the application
[24] In terms of the merits of the application, on the information before me it appears that Ms Power was regularly late for work and was dismissed for this reason after a warning and final warning. Ms Power indicated that her personal circumstances impacted on her attendance. I have regarded the merits as a factor which weighs against the extension of time.
Fairness as between the person and other persons in a similar position
[25] Consideration of fairness relative to other persons in similar positions is a neutral factor.
Conclusion
[26] For the reasons I have set out above, I am not satisfied that Ms Power’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 Order2 reflecting this Decision will be issued.
COMMISSIONER
Appearances:
No appearance of the Applicant.
Ms E Chalmers on behalf of the Respondent.
Hearing (Conference) details:
2019.
Adelaide.
March 18.
Printed by authority of the Commonwealth Government Printer
<PR705998>
1 [2011] FWAFB 975.
2 PR705999.
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