Christine Michnik v Silver Chain Group Limited T/A Silver Chain

[2017] FWC 4804

[2017] FWC 4804

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christine Michnik
v
Silver Chain Group Limited T/A Silver Chain
(U2017/8516)

COMMISSIONER PLATT ADELAIDE, 15 SEPTEMBER 2017

Application for an unfair dismissal remedy – extension of time – application dismissed.

[1] Ms Christine Michnik 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 Silver Chain Group Limited T/A Silver Chain (Silver Chain) which her form F2 Unfair Dismissal Application advised took effect on 26 June 2017.

[2] The application was lodged on 7 August 2017.

[3] Ms Michnik’s application identified that it was made beyond 21 days from the date of dismissal but did not provide an explanation as to the reason for the delay.

[4] On 16 August 2017, Silver Chain lodged a form F3 Employer Response and form F4 Unfair Dismissal Application Objections which raised a jurisdictional objection on the basis that the application was lodged out of time.

[5] On 23 August 2017, my Associate corresponded with Ms Michnik and Silver Chain and advised that the extension of time issue would be considered at a telephone conference on 14 September 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 Michnik was directed to provide a statement concerning the extension of time and any documents to be relied upon by 1 September 2017. Silver Chain was invited to file any material in reply by 7 September 2017.

[6] On 28 August 2017, the parties were advised that the hearing would be brought forward to 13 September 2017.

[7] Ms Michnik provided a written submission which is summarised as follows:

● On 21 August 2017, Dr Graeme Hammond, certified that as at 20 June 2017 (prior to the dismissal but whilst the discipline process was being conducted) Ms Michnik was suffering from ‘work related stress’ and that he conducted a counselling session.
● On 29 June 2017, she corresponded with a potential representative by email and advised him that she was in the process of preparing the form F2 Unfair Dismissal Application to send to the Commission but sought assistance by way of representation for the conciliation process.
● In early July 2017, she went away with friends to try and relax and discuss the situation.
● On or about 4 July 2017, she was advised it would be expensive to challenge the dismissal and the process may not favour her.
● About a week after the dismissal she tried to secure representation but was not able to do so.
● On 20 July 2017, she attended the Joondalup Reference Library to research the matter.
● Ms Michnik then suffered from flu like symptoms (no medical certificate was provided in respect of this illness).
● Ms Michnik was also seeking work and submitted job applications.
● Ms Michnik submitted a letter from Dr Hammond dated 26 August 2017 which referred to the 20 June 2017 consultation and concluded that she was very anxious and as such was unable to make an application for unfair dismissal due to her mental state.

[8] Silver Chain’s submission is relevantly summarised as follows:

● Ms Michnik was aware of the dismissal on 26 June 2017.
● The letter from Dr Hammond referred to a consultation that occurred prior to the dismissal and as such he was unable to give an opinion as to how the dismissal would have impacted her capacity to lodge a claim. The analysis was retrospective.
● The existence of shock and confusion is not of itself an exceptional circumstance.
● The failure to secure representation would not have prevented the lodgement of a claim.
● The applicant was capable of preparing and lodging a form F2 Unfair Dismissal Application as detailed in her email communication to the proposed representative on 4 July 2017.
● Ms Michnik took no action to contest the dismissal until 7 August 2017.
● Ms Michnik’s circumstances do not represent exceptional circumstances.
● The merits of the application are in support of Silver Chain.
● No prejudice has been caused to the employer by the late application.
● Fairness between others weighs in favour of Silver Chain.

[9] A hearing was conducted by way of telephone conference on 13 September 2017. A sound file record of the telephone conference was kept. Ms Michnik represented herself. Ms Martina Ivanovski from the Chamber of Commerce and Industry of Western Australia represented Silver Chain.

[10] The parties reiterated their submissions. Ms Michnik clarified the dates of the events recounted in her submission.

[11] 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.”

[12] This unfair dismissal application by Ms Michnik was made 21 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[13] 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 Ltd¹ 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.”

[14] I make the following findings.

[15] I accept that Ms Michnik was impacted by the dismissal, however this is not unusual.

[16] I am unable to accept the retrospective opinion of Dr Hammond that his examination of Ms Michnik on 20 June 2017 (which predated the dismissal) allowed him to form an opinion that Ms Michnik’s mental state prevented her from contesting the dismissal. This is also inconsistent with the evidence of Ms Michnik that she prepared a form F2 Unfair Dismissal Application on 4 July 2017.

[17] The failure to secure representation is not of itself an exceptional circumstance.

[18] The only action Ms Michnik took to question her dismissal was the lodgement of this application on 7 August 2017.

[19] The applicant needs to provide a credible explanation for the entire period of the delay, 2 but has not done so.

[20] There is no submission that the granting of an extension of time represents prejudice to Silver Chain.

[21] 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.

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

Conclusion

[23] For the reasons I have set out above, I am not satisfied that Ms Michnik’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 Order³ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Ms C.Michnik, the Applicant.

Ms M.Ivanovski of the Chamber of Commerce and Industry of Western Australia on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

September 13.

1 [2011] FWAFB 975

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

3 PR596110

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