Cosette Monk v Careers Australia College of Healthcare Pty Ltd

[2014] FWC 4806

[2014] FWC 4806

FAIR WORK COMMISSION

DECISION

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

Cosette Monk
v
Careers Australia College of Healthcare Pty Ltd
(U2014/6710)

COMMISSIONER RIORDAN SYDNEY, 24 JULY 2014

Application for relief from unfair dismissal.

[1] Ms Cosette Monk resigned from her employment with Careers Australia College of Healthcare Pty Ltd on 31 March 2014. Ms Monk lodged an application for an unfair dismissal remedy on 23 April 2014.

[2] Ms Monk’s application is two days outside the statutory limit for such an application.

[3] A conference/hearing was conducted by myself on 4 July 2014, in relation to the extension of time issue. At this proceeding, I granted leave for Ms Hepburn from Minter Ellison to appear for the Respondent for this proceeding only.

[4] At the conclusion of the proceeding, I allowed Ms Monk a seven day grace to provide to me a doctors certificate outlining the nature of her illness. Ms Monk provided two doctors certificates on 6 July 2014.

[5] The relevant legislative framework for an extension of time application is s394(3) of the Fair Work Act (the Act).

“394 Application for unfair dismissal remedy

(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.”

[6] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 where the Full Bench 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.” [Endnotes not reproduced]

[7] Ms Monk is claiming that whilst she resigned on 31 March 2014, her resignation was a result of bullying conduct from the employer. Ms Monk is claiming that she was given an ultimatum to “resign or be sacked” and was therefore constructively dismissed.

[8] Ms Monk has furnished a number of medical certificates which identify that she was suffering from a medical condition which was identified from a “seriously abnormal liver function test” result. Ms Monk also provided the cocktail of medications that she was required to consume every day. I have also taken note that the medical certificate identified Ms Monk as being unfit for duty for the month of April.

[9] I also note that Ms Monk completed and signed her application on 10 April 2014.

[10] The Respondent submitted that the Applicant resigned and was not dismissed.

[11] Further, the Respondent also submitted that the Applicant has not provided any evidence to identify any exceptional circumstance which exists to overcome the time restriction of the Act. To be fair, the medical evidence of the Applicant was submitted after the proceedings. I gave the Respondent 7 days to respond to this evidence.

[12] The Respondent replied on 18 July 2014, reasserting the submissions made on the last occasion and that the medical evidence did not support a reason why Ms Monk could not have filed her application within the timeframe.

Consideration

[13] My statutory obligation is to consider all of the factors identified in s394(3) when determining whether or not an exceptional circumstance actually exists in this case.

[14] I accept that Ms Monk is suffering from a liver disease which requires on-going medical treatment. I accept the veracity of the medical certificates which identify that Ms Monk was unfit for work throughout April.

[15] Ms Monk was aware of the date that the employment relationship ceased.

[16] Ms Monk’s application for an unfair dismissal remedy was signed on 10 April 2014. This act identified to me an intention to make the application within the legislated timeframe.

[17] I cannot find any prejudice to the employer if an extension of time is granted.

[18] The inherent difficulty in Ms Monk’s application is the fact that she resigned. Ms Monk claims that she was bullied into resigning by the threat from her manager to either “resign or be sacked”. This comment will be the subject of evidence if the matter proceeds, the value of which could determine the likely outcome of the application.

[19] I am not aware of any issues of fairness between Ms Monk and any other employee in a similar situation.

Conclusion

[20] Ms Monk’s application was two days late. During the 23 day period from her employment separation to unfair dismissal application she was under the treatment of a Professor at Royal Brisbane Hospital for liver disease. Ms Monk also provided a medical certificate identifying that she was unfit for her normal duties for the month of April.

[21] Ms Monk advised me that she was very sick during the 21 day period. In such circumstances, it is not uncommon for an individual to focus their attention on their well being to do the detriment of every other facet of their lives. The fact that the application is only 2 days late requires me to take note of the applicant’s illness during this period.

[22] Ms Monk admitted that she was not aware of the 21 day timeframe. Whilst ignorance is no excuse, it is obvious that there was an intervening factor which stalled the application process from the date of signature (10 April 2014) until the date of application (23 April 2014). I am of the view that her illness was this intervening factor.

[23] Having considered all of the issues raised by the parties, I am satisfied that an exceptional circumstance exists in this matter and grant the extension of time sought by Ms Monk in accordance with s394(3) of the Act.

[24] An Order reflecting this Decision will be issued.

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