Charmaine Campbell v Eldercare Inc T/A Eldercare

[2015] FWC 3493

[2015] FWC 3493

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Charmaine Campbell
v
Eldercare Inc T/A Eldercare
(U2015/1682)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 25 MAY 2015

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

[1] Ms Campbell 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 Eldercare Incorporated (Eldercare). The application was lodged on her behalf by her union, United Voice. At a telephone conference convened on 21 May 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] Ms Campbell’s application was lodged on 14 April 2015. Ms Campbell’s application advised her employment was terminated with effect from 23 March 2015. The application advised that it was lodged within the 21 day time limit.

[3] On 21 April 2015 my Associate corresponded with both Ms Campbell and Eldercare and advised that the extension of time issue would be considered through a telephone conference on 21 May 2015. A copy of this advice was forwarded to United Voice. Substantial information about the extension of time issue was provided to the parties. Ms Campbell was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 14 May 2015.

[4] No further information was received from Ms Campbell. On 19 May 2015 a reminder advice was forwarded to United Voice. On 20 May 2015 Mr Grealy, of United Voice, advised that the union had been unable to contact Ms Campbell and requested an adjournment of the matter for 2 to 3 weeks on the basis that, if contact was not made by Ms Campbell during this period, United Voice would not proceed with the application. That request was refused on the basis that I asked my Associate to draw to Mr Grealy’s attention the 21 April 2015 correspondence and the extent to which the application was lodged by United Voice which had been on notice of this conference for a month.

[5] The Employer’s Response to the application indicated that Eldercare opposed the application but did not identify opposition relative to an extension of time.
[6] Ms Campbell did not participate in the telephone conference. Mr Grealy participated in the conference. Mr Johns, the Human Resources Business Partner from Eldercare also participated in this conference. The conclusions set out in this decision about the extension of time issue were reached on the basis of all of the information currently before me. I note that a sound file record of this telephone conference was kept.

[7] At the commencement of the conference Mr Grealy advised that United Voice had received a telephone call on 20 May 2015 from Ms Campbell and that he understood she intended to participate in the conference. Mr Grealy advised that he had been unable to contact Ms Campbell since she made that telephone call and requested that the matter be adjourned for a further week. I did not agree to that request on the basis that Ms Campbell had been advised of this conference a month ago. She had not provided any advice to the Fair Work Commission relative to her attendance, or consistent with the instructions provided in the correspondence to her. I advised that, subject to the decision I reached in this matter I may provide an opportunity to her, to explain her non-attendance and actions in this matter.

[8] 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.”

[9] On the information before me I am satisfied that the application was made one day 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 1 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.”

[10] Mr Grealy advised that Ms Campbell contacted United Voice on 30 March 2015 and gave instructions for the lodgement of this application. Mr Grealy advised that those instructions were conveyed to an industrial officer who ultimately prepared the application and signed it on 13 April 2015. Mr Grealy advised that, whilst further contact with Ms Campbell had not been possible from 30 March 2015 to 20 May 2015, the late lodgement of the application reflected error on the part of United Voice which should be regarded as representative error. Mr Grealy confirmed that he understood that Ms Campbell was aware of the termination of her employment on the day upon which it took effect. Mr Grealy’s submission was that Ms Campbell had acted to obtain advice and assistance from United Voice so as to challenge the termination of her employment. Mr Grealy contended that an extension of time of this magnitude would not prejudice the Respondent. Further, Mr Grealy submitted that the merits of the application involved substantial factual disputation such that this factor should be regarded as a neutral issue in relation to the extension of time. Finally, Mr Grealy asserted that the position adopted by the Fair Work Commission in relation to comparable matters involving representative error supported an extension of time.

[11] In terms of the reason for the delay, Ms Campbell’s failure to participate in the conference means that Mr Grealy’s understanding of the events cannot be confirmed and I am unable to establish what actions Ms Campbell actually took. Had Ms Campbell complied with my directions in this matter, or participated in the conference on 21 May 2015, these issues may have been addressed.

[12] In considering the reasons for the delay I have adopted the approach set out in Clark v Ringwood Private Hospital. 2 That approach was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency3in the following terms:

“(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.

(iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”

[13] It may be the case that information provided by Ms Campbell enables a conclusion to be drawn about her conduct in this matter. However, absent compliance with my requirements to provide a witness statement by 14^th May 2015, and absent Ms Campbell’s participation in this proceeding, I am not satisfied that the delay can be simply attributed to representative error such that it would represent an exceptional circumstance.

[14] On the information before me, and in particular Ms Campbell’s application, it appears she was aware of the termination of her employment on the day upon which it took effect. Apart from the advice that she contacted United Voice on 30 March 2015, there is no other information before me about other actions which Ms Campbell may have taken. The telephone message Ms Campbell left with Mr Grealy on 20 May 2015 seems to indicate that she had the capacity to comply with my directions.

[15] I have concluded that the one-day delay will not represent prejudice to Eldercare but this cannot be taken to represent a basis for an extension of time.

[16] Having considered the application and the Employer’s Response I have concluded that the merits of the application should be regarded as a neutral issue relative to the extension of time. In terms of comparable situations, I have concluded that the general application of the approach set out in Clark v Ringwood Private Hospital requires direct input from an applicant. Absent that input I have concluded that the general approach applied by the Fair Work Commission would not support a conclusion that Ms Campbell’s circumstances were exceptional.

[17] Accordingly, on the information before me, I am not satisfied that Ms Campbell’s circumstances should be regarded as exceptional so as to warrant an extension of time. I am prepared to review this conclusion in the event that Ms Campbell provides to the Fair Work Commission, within seven days of this decision, a statutory declaration setting out why it was that she did not participate in the conference held on 21 May 2015 and any further information going to the reasons for the delay. That additional information should include, but is not limited to, the specific instructions which she provided to United Voice and any action she subsequently took to further pursue her application. Absent the provision of information which meets this requirement, Ms Campbell’s application will be dismissed on this basis and an Order giving effect to this decision will be issued on, or soon after 1 June 2015. In the event that Ms Campbell provides information in this respect, the application may be relisted to give Eldercare the opportunity to respond to her advice.

Appearances (by telephone):

N Grealy for the applicant.

M Johns for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

May 21.

 1   [2011] FWAFB 975

 2 (1997) 74 IR 413

 3   Print Q0784

Printed by authority of the Commonwealth Government Printer

<Price code C, PR567644>