Claire Martin v G7 Cocolat Franchising Pty Ltd ATF the G7 Cocolat Franchising Unit Trust T/A Cocolat
[2016] FWC 543
•3 FEBRUARY 2016
| [2016] FWC 543 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Claire Martin
v
G7 Cocolat Franchising Pty Ltd ATF the G7 Cocolat Franchising Unit Trust T/A Cocolat
(U2016/3806)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 3 FEBRUARY 2016 |
Application for relief from unfair dismissal - extension of time not granted.
[1] Ms Martin 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 G7 Cocolat Franchising Pty Ltd ATF the G7 Cocolat Franchising Unit Trust (Cocolat). At a telephone conference convened on 1 February 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] Ms Martin’s application was lodged on 14 January 2016. In that application Ms Martin advised that she was told of the termination of her employment on 4 December 2015 and that this termination took effect from that same day. In her application, Ms Martin advised that the application was lodged within time.
[3] The Employer’s Response to the application objected to the application on the basis that it was lodged outside of the statutory time limit.
[4] On 15 January 2016 my Associate corresponded with both Ms Martin and Cocolat and advised that the extension of time issue would be considered through a telephone conference on 1 February 2016. Substantial information about the extension of time issue was provided to the parties. Ms Martin was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 25 February 2016.
[5] Further information was received from Ms Martin on 15 January 2016 when she provided advice, by email, in the following terms:
“I posted my application on 24 December 2015, one day short of the required submission date. I was unaware of the Work Fair procedure as my manager informed me that she didn't need to give me a reason in law to terminate my employment. However, during a conversation on 20 December with a friend who is a HR Manager, the Work Fair procedure was brought to my attention and that I was unfairly dismissed. I was given the application forms to read through, gather the information required and complete the appropriate forms, which took until the evening of 23 December.
I can't explain why the forms weren't received until the 14 January 2016.
I would also like to add on my F2 form my starting date was 13/02/2015 not 13/12/2015. I had a phone from Russell on 14th January asking for this information and said he would correct it for me.
Yours Faithfully
Claire Martin”
[6] Ms Martin participated in the telephone conference. Mr Ruddell, of Employsure was granted permission to represent Cocolat pursuant to s.596(2)(a) after Ms Martin agreed to that request. Mr Lawson from Cocolat also participated in this conference and represented Cocolat. Aside from the issue of representation, I note that this matter was determined on the information provided by Ms Martin.
[7] 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.
[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 have concluded that the application was made some 15 days outside of the 21 day time limit. This assessment takes into account the requirement specified in the Acts Interpretation Act 1901 1 that where a date for the provision of an application of this nature falls on a public holiday, that date is extended to the next working day. Consequently I have taken into account the extent to which Christmas Day and 28 December 2015 were public holidays. As it was lodged outside of the 21 day time limit, the application, 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 Ltd2 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.”
[11] I am not satisfied that, apart from the late lodgement of this application, Ms Martin pursued other actions so as to challenge the termination of her employment. I am not satisfied that an extension of time of this magnitude would prejudice Cocolat but this, of itself, does not provide a basis for an extension of time.
[12] The limited material before me relative to the merits of the application gives rise to significant doubt that the merits of Ms Martin’s are sustainable. However, information which would enable a definitive conclusion is not before me. Accordingly, I have regarded the merits of the application as a neutral factor relative to the extension of time issue.
[13] Considerations of fairness relative to other persons in similar positions do not support an extension of time.
[14] Accordingly I have concluded that the material before me does not establish that Ms Martin’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application is dismissed on this basis and an Order (PR576481) giving effect to this decision will be issued.
Appearances (by telephone):
C Martin on her own behalf.
J Ruddell appearing for the respondent.
Hearing (Conference) details:
2016.
Perth:
February 1.
1 Section 33
2 [2011] FWAFB 975
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