Bronwyn Shields v The Trustee for the Jell Discretionary Trust t/as Frank Jell Commissioning Services Pty Ltd

[2015] FWC 923

[2015] FWC 923 [Note: An appeal pursuant to s.604 (C2015/257 was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 30 April 2015 [[2015] FWCFB 2945] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Bronwyn Shields
v
The Trustee for the Jell Discretionary Trust t/as Frank Jell Commissioning Services Pty Ltd
(U2014/13424)

DEPUTY PRESIDENT SAMS SYDNEY, 6 FEBRUARY 2015

Application for relief from unfair dismissal - application lodged ‘out of time’ - two applications filed - resignation of the applicant - significant delay in filing application - consideration of ‘exceptional circumstances’ - ‘exceptional circumstances’ not made out - application dismissed.

INTRODUCTION

[1] This decision arises from an application for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). Ms Bronwyn Shields (the ‘applicant’) claims she was dismissed from her employment with The Trustee for the Jell Discretionary Trust t/as Frank Jell Commissioning Services Pty Ltd on 13 June 2014. However, the applicant claimed that she was not made aware of her dismissal until 15 October 2014, when she had asked for her Employment Separation Certificate. However, this date is contested. The applicant lodged her application for an unfair dismissal remedy on 23 October 2014. If the earlier date is accepted, her application was lodged 100 days outside of the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for an Unfair Dismissal Remedy lodged by the applicant and the Form F3 Employer’s Response, which was accompanied by written submissions made by Employsure, the respondent’s representative, both lodged on 11 December 2014. I have also had regard to a two page typed statement provided by the applicant on 18 November 2014, to which was annexed a bundle of correspondence between the applicant and the respondent, correspondence from the Australian Tax Office (ATO) and from Suncorp, the applicant’s superannuation fund. Having considered this material, I issued an Order refusing an extension of time and dismissed the application on 19 January 2015. These are my reasons for doing so.

STATUTORY PROVISIONS AND PRINCIPLES

[3] The relevant legislative framework guiding the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘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.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, a Full Bench of the Commission said:

‘[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].

[5] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing of an unfair dismissal application. In other words, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application ‘out of time’; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia [2014] FWCFB 2288 succinctly described the Commission’s decision making process under s 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I turn now to each of the criteria set out under s 394(3) of the Act.

CONSIDERATION

Reasons for the delay (s 394(3)(a))

[6] In her written reasons forwarded to the Commission on 18 November 2014, the applicant firstly outlined the history of an earlier unfair dismissal application which she had lodged on 30 June 2014. She had lodged this application after she had received a letter from the respondent to WorkCover setting out that the applicant had been told her employment would be terminated on 13 June 2014. She had never been notified of her dismissal by the respondent. The respondent had denied that the applicant had been dismissed on 13 June 2014, or at all. That application was discontinued on 20 August 2014 after the applicant apparently accepted that she had not been dismissed. The applicant’s WorkCover claim had been accepted two days earlier and backdated to 11 June 2014. At this time, she understood that once her doctor had given approval for her to return to work, she would do so.

[7] Some weeks passed, seemingly uneventfully. The applicant said she had received a letter from Suncorp dated 30 September 2014, but had not opened it for approximately ten days. When she did open it on 13 October 2014, she found the first paragraph read:

‘We have recently been advised that you have ceased employment with Frank Jell Commissioning Services P/L. Your super benefit will now be held in an individual member account within the Plan.’

[8] She had then contacted the respondent’s representative and was advised that the respondent had sent her Employment Separation Certificate on or about 22 August 2014, which set out the reason for her separation as being ‘resignation’. She emailed back to advise that she had not received the Certificate. The applicant wrote to the respondent on 15 October 2014 asking if her employment had been terminated. Ms Fran Jell of the respondent replied to her as follows:

‘Dear Ms Shields

We confirm that your employment with Frank Jell Commissioning Pty Ltd ended as at 13 June 2014. You are no longer an employee of our company and have not been such for over 4 months.

We note at the time you lodged an unfair dismissal application alleging you had been constructively dismissed or ‘forced to resign’. You discontinued this claim on 20 August 2014 and we issued your separation certificate to yourself and Centrelink on 22 August in compliance with our legal obligations.

As you are no longer an employee of Frank Jell Commissioning Services Pty Ltd we have no further obligations towards yourself. I reiterate my earlier direction not to contact us again. Should you continue to do so we shall consider this harassment of ourselves.’

[9] A copy of the Employment Separation Certificate was attached, but the applicant denied she had seen it before this time. Moreover, the applicant denied having resigned from her employment or that she had harassed the respondent or its representative.

[10] In written submissions, the respondent’s representative also outlined the history of the earlier unfair dismissal application and a WorkCover claim filed by the applicant. The applicant had filed her first application for unfair dismissal on 30 June 2014. The respondent had provided a response denying that she had been dismissed. A conciliation conference on 31 July 2014 was unsuccessful and directions were issued on 6 August for the matter to proceed to a hearing. The respondent was advised that the applicant’s Workcover claim had been accepted on 19 August 2014 and the applicant discontinued her unfair dismissal application on 20 August 2014. On 22 August 2014, the applicant contacted the respondent and verbally advised Ms Fran Jell that she was resigning from her employment with the respondent and asked for a separation certificate, which was posted to her shortly thereafter. It was put that in the absence of any communication from the applicant, the respondent was entitled to assume she had received it. In any event, these circumstances could not be said to constitute an ‘exceptional circumstance’.

[11] It is puzzling that on the applicant’s own evidence, she had not contacted the respondent at any time between discontinuing her first application (20 August 2014) and upon discovering the contents of correspondence from Suncorp (13 October 2014) if she believed that she was still employed by the respondent. It is especially curious, given her first unfair dismissal application was lodged on 30 June 2014. In my view, the respondent was entitled to expect that the applicant would maintain at least some minimal contact with it in relation to the possibility, or a timetable, of her return to work. Her conduct was entirely consistent with an employee who understood she was no longer employed by the respondent. On the balance of probabilities, I find the applicant’s explanation to be implausible. I prefer the version of events outlined by the respondent (See para [10] above), notwithstanding there is some confusion as to whether the respondent believed that the applicant had resigned on 13 June or 22 August 2014. In either case, the application was lodged ‘out of time’.

[12] Given these findings, the Commission cannot be satisfied that there were any ‘exceptional circumstances’ which prevented the applicant from filing her application within time.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[13] While I acknowledge that this is a matter in contest, for the reasons given above, and giving the applicant the benefit of the doubt, the applicant first became aware that her employment with the respondent had ended on 22 August 2014. This is so because she had discontinued her first unfair dismissal application on 20 August 2014.

Any action taken by the person to dispute her dismissal (394(3)(c))

[14] This is the second unfair dismissal application lodged by the applicant in relation to her employment with the respondent. The first was lodged on 30 June 2014 and discontinued on 20 August 2014. The applicant has put that she lodged the second application seven days after she confirmed with Mr Mahoney, the respondent’s representative, that her employment had been terminated.

[15] The respondent’s representative characterised the contact made by the applicant with the respondent as ‘attempting to contest and rescind her resignation’ and submitted that this could not be of itself, an ‘exceptional circumstance’. The applicant lodged a second application on 23 October 2014. The respondent’s material suggest that the applicant had resigned twice - on 13 June 2014 and on 22 August 2014 and she had not contacted the respondent advising as to the status of her health or her likely date of return, at least from 22 August 2014. The respondent’s representative noted that the applicant had not filed an unfair dismissal application until 7 days after her correspondence with the respondent on 16 October 2014. In my opinion, the applicant’s conduct was consistent with her having resigned her position at least by 22 August 2014. This weighs against an extension of time being granted.

Prejudice to the employer (s 394(3)(d))

[16] Given the circumstances of the case, the earlier application, the expense incurred by the respondent in defending both applications and the lengthy delay in filing this application, I find that prejudice to the employer is not insignificant. This weighs heavily against an extension of time being granted to the applicant.

Merits of the application (s 394(3)(e))

[17] While not explicitly addressing this criterion, the applicant denied that she had resigned. The respondent maintained that she resigned her employment on 22 August 2014 with effect from 13 June 2014. It is appropriate to note that a consideration of the merits of an application at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis; See: Kyvelos v Champion Socks Pty Limited Print T2421, 10 November 2000. For the reasons I have discussed above, I am able to make a prima facie assessment that the applicant’s prospects of success are negligible. This weighs against an extension of time being granted.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))

[18] The applicant did not respond to this criterion. The respondent put that applicant would be particularly advantaged in relation to a hypothetical person in a similar position, as she would be given a second opportunity to lodge an unfair dismissal application. There is some force to this submission. This weighs against a grant of an extension of time.

CONCLUSION

[19] Having considered all of the matters which the Commission is required to take account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application for an unfair dismissal remedy must be dismissed. Even if I am wrong about this finding made under s 394(3) of the Act, I am further satisfied that the applicant resigned her employment with the respondent either on 13 June or 22 August 2014. In these circumstances, the Commission would have no jurisdiction to deal with her unfair dismissal claim; See: s 385 of the Act. I would be bound to dismiss the application. I confirm my order of 19 January 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, PR560838>