Brianna Ford v Marketplace (Marion) Pty Ltd T/A San Churro Marion

[2016] FWC 5573

[2016] FWC 5573

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Brianna Ford
v
Marketplace (Marion) Pty Ltd T/A San Churro Marion
(U2016/9834)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 15 AUGUST 2016

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

[1] Miss Ford 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 Marketplace (Marion) Pty Ltd T/A San Churro Marion (San Churro Marion). At a telephone conference convened on 15 August 2016 I advised that I had concluded, on the material before me, 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] Miss Ford’s application was lodged on 28 July 2016. In that application, Miss Ford advised that the termination of her employment took effect on 24 June 2016. In her application, Miss Ford provided the following explanation for her late lodgement of the application:

“I am an 18 year old girl and I have felt intimidated and confused as to whether or not to make an unfair dismissal claim. I was unaware of the 21 day time limit. I have recently spoken with some family members that believe I was unfairly treated throughout my employment with San Churro Marion and they have helped me to complete this application.

Since my dismissal San Churro have continued to ignore my requests for return of uniform deposit and certificates for the completion of study done through my working time with them. Based on this I decided to make an application and after doing an eligibility test on your website and meeting all other criteria I decided to apply. I would be grateful if my application could be accepted.” 1

[3] On 29 July 2016, my Associate corresponded with both Miss Ford and San Churro Marion and advised that the extension of time issue would be considered through a telephone conference on 15 August 2016. Substantial information about the extension of time issue was provided to the parties. Miss Ford was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 9 August 2016.

[4] Further information was received from Miss Ford on 9 August 2016 when she provided advice, by email, in the following terms:

“I am writing in regards to being granted an extension of time on my Unfair Dismissal claim.

Firstly, I was unaware of the 21-day limit. My dismissal caught me very unaware and was effective immediately, leaving me in quite a shock. I was given a termination form to sign straight away, in the middle of the store surrounded by co-workers and customers. Due to being taken so unaware I was in an emotional state and felt highly pressured and bullied into signing the form. As I am only 18 and was living out of home at the time, my first instinct was to search for another job immediately in order to earn money to cover the costs of rent, bills, gym membership, food, car, travel etc. Being so young, I was also unaware that I had the option to place a claim, or that I was even eligible to make one. After speaking to close friends and family members of my circumstances, they helped me understand my position and rights as an ex-employee. I had been with the company for 2 years, and had even been awarded a senior/manager position along with employee of the month, star of the week, and other in-store awards multiple times. Since my dismissal I have asked for my uniform bond of $60 back, along with my certificate 2 in Retail Operations in which I completed throughout my employment with them. Neither of which I have received, nor have I been given a copy of the termination form I was forced to sign, or a copy of the signed employment agreement from when I was first hired.

Id appreciate your consideration in granting my extension of time in order to make my claim as I feel my dismissal was unfair and unjust. I believe this needs to be addressed accordingly.”

[5] Miss Ford participated in the telephone conference. Mr Liddle, from San Churro Marion also participated in this conference.

[6] My conclusions about the extension of time issue were reached on the basis of all of the information before me. 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 have concluded that the termination of Miss Ford’s employment took effect on 24 June 2016. Accordingly, I am satisfied that the application was made 13 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] Miss Ford’s reasons for the delay go to her advice that she was unaware of her capacity to pursue this application until such time as she spoke with friends and family members some time before she lodged the application. Miss Ford agrees that she was made aware of the capacity to make an application of this nature some 20 days after the termination of her employment. She has not provided an acceptable reason for the subsequent 14 day delay. Miss Ford’s lack of awareness of the capacity to make an application of this nature cannot be taken as indicative of an acceptable reason for the delay or an exceptional circumstance. Secondly, Miss Ford advised that, after the termination of her employment she directed her efforts to looking for other employment. Her position in this regard is commendable but does not establish an exceptional circumstance. To the extent that Miss Ford asserts that she was stressed about the termination of her employment, the information before does not establish that this stress meant that she was unable to pursue the matter. Finally, Miss Ford has not established to me that she was so intimidated by her former employer that this explains the delay. I am not satisfied that Miss Ford has established that the reasons for the delay represent circumstances which should be regarded as acceptable or exceptional for the purposes of an extension of time.

[10] The termination of Miss Ford’s employment took effect on 24 June 2016 and she became aware of that dismissal on the same day.

[11] I am not satisfied that Miss Ford took action, apart from the late lodgement of this application, to pursue other actions in a timely manner so as to challenge the termination of employment.

[12] I do not consider that an extension of time of this magnitude would be likely to prejudice San Churro Marion but have not based my conclusion in this matter on that consideration.

[13] The material before me relative to the merits of the application does not enable a conclusion about the merits of the application. Accordingly, I have regarded the merits of the application as a neutral factor in considering the extension of time issue.

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

[15] Accordingly, I have concluded that the material before me does not establish that Miss Ford’s circumstances can be regarded as exceptional so as to warrant an extension of time. An Order (PR583998) giving effect to this decision will be issued.

Appearances (by telephone):

B Ford on her own behalf.

C Liddle for the Respondent.

Hearing (Conference) details:

2016.

Adelaide:

August 15.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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<Price code C, PR583997>