Billiana Hanson v Blueprint Global Pty Ltd

[2017] FWC 2660

[2017] FWC 2660

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Billiana Hanson
v
Blueprint Global Pty Ltd
(C2017/1792)

COMMISSIONER PLATT ADELAIDE, 15 MAY 2017

Application to deal with contraventions involving dismissal – extension of time granted.

[1] Ms Billiana Hanson has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that her employment was terminated by Blueprint Global Pty Ltd (Blueprint) on 10 March 2017 in contravention of the general protections provisions of the Act.

[2] This application was lodged on 4 April 2017.

[3] Ms Hanson’s application indicated, at question 1.4, that she was making the application within 21 calendar days of the dismissal taking effect.

[4] Blueprint filed a F8A Employer Response on 28 April 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time and that Ms Hanson was not dismissed, she had resigned.

[5] On 2 May 2017, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 15 May 2017. 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 Hanson and Blueprint were directed to provide an outline of argument by 10 May 2017. On 10 May 2017, Ms Lock of Shine Lawyers requested an extension to file which was granted. Ms Lock’s material was provided on 11 May 2017 in accordance with the extension.

[6] Ms Hanson provided a written submission summarised as follows:

• Her employment was terminated on 10 March 2017.



• The application was lodged by Shine Lawyers at approximately 10:42am (Queensland time) on 4 April 2017.



• The reasons for the delay in filing the application include Force Majeur, an Act of God and Representative Error.



• Ms Hanson’s last day to file the application was Saturday 1 April 2017. As the last day fell on a weekend, the application could have been lodged on Monday 3 April 2017, making the application only 1 day late.



• Cyclone Debbie ravaged Queensland on 27 March 2017 starting in North Queensland and hitting Brisbane 30 March 2017. The conditions were at its worst on 31 March 2017.



• The representative’s office, located in Kenmore, was extremely prone to flooding and therefore schools and offices were closed.



• The representative’s staff could not access their computers during this period.



• The representative and staff returned to work on Tuesday 4 April 2017 and thus the application was lodged.



• Ms Hanson’s representative referred the Commission to the case of Dean-Villalobos v QGC Limited T/A QGC¹ as establishing that a person who provides clear instructions to a legal representative and executes the necessary documents in a reasonable timeframe to allow them to be filed should not be prejudiced because of a failure of the legal representative to comply.

In relation to the merits, Ms Hanson contends she was forced to resign by the conduct of the respondent being that she was demanded to look after the respondent’s partner’s son and cats, do the son’s homework, do the respondent’s partner’s makeup and give her massages. Furthermore, it is contended that Ms Hanson was forced to resign after the respondent’s partner took a screenshot of a snap chat posted by Ms Hanson.

[7] Ms Lock did not file any witness statement by Ms Hanson or any person from Shine Lawyers in respect of the factual matrix.

[8] One World filed a written submission which is summarised as follows:

• Ms Hanson was not dismissed, she voluntarily resigned or abandoned her employment on 9 March 2017. The resignation was given via text message, verbally and by her conduct of taking her personal items from the respondent’s premises.



• There are no exceptional circumstances justifying an extension of time.



• As Ms Hanson has a legal representative, she should have engaged a lawyer earlier or instructed her representative to lodge the application in time.



• Blueprint has expended time, effort and money on responding to an application lodged out of time and without merit. Furthermore, Ms Hanson’s conduct of resigning or abandoning her employment, without notice, has disadvantaged the respondent and left it with one less employee.

[9] A hearing was conducted by way of telephone conference on 15 May 2017. A sound file record of the telephone conference was kept. Ms Sarah Lock of Shine Lawyers was granted permission pursuant to s.596(2)(a) of the Act to represent Ms Hanson as was Mr Sam Robertson of Gross and Becroft Lawyers who represented One World.

[10] Ms Lock reiterated the submissions previously provided.

[11] At the conference, Ms Hanson gave evidence that;

• After her departure on 9 March 2017 she was contacted by the company and it was suggested that mediation be undertaken.



• On 10 March 2017, she received a letter from One World’s representatives accepting the purported resignation and confirming that the employment had ended.



• On or about 14 March 2017 she contacted Shine Lawyers.



• On or about 20 March 2017 she met with Shine Lawyers.



• On 22 March 2017 she instructed Shine Lawyers to proceed and lodge her application.



• On 30 March 2017, aware of the impending Cyclone Debbie, she contacted Shine Lawyers by telephone an enquired as to the progress of her application and was advised they would lodge it as soon as possible.

[12] At the conference, Ms Lock gave evidence about her failure to lodge the application on time, advising that she had 150 files open and that by the time she tried to lodge the application the impact of Cyclone Debbie had resulted in the loss of power which prevented her from lodging the application.

[13] Mr Robertson was invited to cross-examine Ms Hanson and Ms Lock but did not seek to do so.

[14] At the telephone conference, One World relied on the submissions filed and contended that there were no exceptional circumstances.

[15] Having heard the evidence of Ms Hanson and Ms Lock, Mr Robertson accepted that representation error had occurred.

[16] Section 366 of the Act relevantly states:

“Time for application

(1) An application under section 365 must be made:

(a)  within 21 days after the dismissal took effect; or

(b)  within such further period as the FWC allows under subsection (2).

(2)  The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)  the reason for the delay; and

(b)  any action taken by the person to dispute the dismissal; and

(c)  prejudice to the employer (including prejudice caused by the delay); and

(d)  the merits of the application; and

(e)  fairness as between the person and other persons in a like position.”

[17] I acknowledge that it is a well-established principle² that if the final day of the 21 day statutory period falls on a weekend, the time for filing will be extended to the next business day. However, based on the termination date contended by the applicant (10 March 2017), the last day for filing on time was Friday 31 March 2017. If I accept the submissions of the respondent that the termination occurred on 9 March 2017, the last day for lodgement was Thursday 30 March 2017. The general protections application by Ms Hanson was clearly made outside of the 21 day time limit and can only be pursued if this time limit is extended.

[18] I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd³ 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.”

[19] As to the date of termination, it appears to me that after Ms Hanson had left the premises on 9 March 2017, One World continued to try and preserve the employment relationship by way of mediation. On 10 March 2017, it appears One World had changed its mind and accepted Ms Hanson would no longer be employed. On that basis, I find that the termination occurred on 10 March 2017. I have considered the impact of a finding that the termination occurred on 9 March 2017, but this would not have changed my decision.

[20] As One World has appropriately conceded, this is a case or representative error. Ms Lock’s lack of application and diligence led to the application not being lodged until the last minute at which time the impact of Cyclone Debbie prevented lodgement. Ms Hanson did all that could have been expected of her, following up prior to lodgement to ensure that her representative was ‘on the case’.

[21] The applicant needs to provide a credible explanation for the entire period of the delay,⁴ and has done so.

[22] One World submits that the granting of an extension of time represents prejudice as it will be required to expend time money and effort responding to it. This could be said of any defence to an application and, taking into account the short period of delay, I have regarded prejudice as a neutral factor.

[23] 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.

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

Conclusion

[25] For the reasons I have set out above, I am satisfied that Ms Hanson’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and the application will accordingly be referred for conciliation. An Order⁵ reflecting this decision will be issued.

COMMISSIONER

Appearances:

S.Lock of Shine Lawyers on behalf of the Applicant.

S.Robertson of Gross & Becroft Lawyers on behalf of the Respondent.

Hearing details:

2017.

Adelaide:

May 15.

1 [2013] FWC 1537

² Acts Interpretation Act 1901 (Cth) s.36(2); Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877

3 [2011] FWAFB 975

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

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