Della Arbon v Commonwealth of Australia T/A Department of Defence

[2015] FWC 335

[2015] FWC 335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Della Arbon
v
Commonwealth of Australia T/A Department of Defence
(U2014/15915)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 14 JANUARY 2015

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

[1] Ms Arbon 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 the Commonwealth of Australia T/A Department of Defence (the Department of Defence). At a telephone conference convened on 14 January 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 Arbon’s application was lodged on 14 December 2014. In that application Ms Arbon advised her employment was terminated on 2 October 2014. Ms Arbon asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept her application out of time:

“I was dismissed for ‘non-performance of duties’ in spite of the fact that I was, and still am, covered by a Workcover Certificate issued by my GP, Dr Vikus Jasoria. I had an appointment with a specialist doctor, Dr Bhandari, for the appraisal of Fitness for Duty on 22nd September 2014. I am still awaiting a copy of this report. This report reached me on 19th November 2014.

My former employer had completely disregarded the certificates issued by Dr Jasoria and my treating psychologist, Dr Giselle Diaz, and placed me on ‘unauthorised absence’ from august 2014.

I have been awaiting the release of the report from Dr Bhandari as it was intended to submit this to the Department of Defence and to Comcare for their action.

This report reached my on 19th November 2014.”

[3] On 5 January 2015 my Associate corresponded with both Ms Arbon and the Department of Defence and advised that the extension of time issue would be considered through a telephone conference on 14 January 2015. Substantial information about the extension of time issue was provided to the parties. Ms Arbon was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time.

[4] Additional information was received from Ms Arbon on 9 and 12 January 2015 in the form of medical certificates confirming that she was not fit for work. On 12 January, Ms Arbon advised that the delay was "due to time involved in obtaining the correctly completed Employment Separation Certificate"

[5] The Department of Defence submitted an Employer Response (Form F3) and Objection to the application (Form F4) opposing the requested extension of time.

[6] Ms Arbon participated in the telephone conference. Mr Hind from the Department of Defence also participated in this conference. 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.

[7] 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.”

[8] On the information before me I am satisfied that the application was made some 51 days 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.”

[9] Ms Arbon's initial reason for the delay was that she was waiting for further medical advice regarding her fitness for work and intended to put that to the Department of Defence. Ms Arbon has not established that there was a medically related reason for her failure to lodge the application in time. In the conference, Ms Arbon conceded that the doctor’s report referenced in her application was not relevant to the delay in the lodgement of the application. Ms Arbon’s second reason for the delay related to her contention that she was waiting for a properly completed Employment Separation Certificate. The Employment Separation Certificate is not a requirement for this application. I am not satisfied that there was any appropriate basis for Ms Arbon's apparent decision to delay actioning this application pending her receipt of that document.

[10] Ms Arbon has not established any form of acceptable explanation for the delay or that her circumstances are exceptional. It is clear from Ms Arbon’s application that she was aware of the termination of her employment on the day on which this termination took effect. I am not satisfied that Ms Arbon took any other action to dispute the termination of her employment other than the late lodgement of this application. Given the resources available to it, I am not satisfied that an extension of time of this magnitude would prejudice the Department of Defence but this, of itself, does not provide a basis for an extension of time.

[11] In terms of the merits of the application, information which allows any definitive conclusion in this respect is not before me and I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

[12] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[13] Accordingly I have concluded that the material before me does not establish that Ms Arbon's circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR560049) giving effect to this decision will be issued.

Appearances (by telephone):

D Arbon on her own behalf.

S Hind appearing for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

January 14.

 1   [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

<Price code C, PR560048>