Emel Avci v Imperial Tobacco Australia Ltd T/A Imperial Tobacco Australia Ltd

[2015] FWC 5009

[2015] FWC 5009

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emel Avci
v
Imperial Tobacco Australia Ltd T/A Imperial Tobacco Australia Ltd
(U2015/8823)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 22 JULY 2015

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Ms Avci and the respondent ended on 21 May 2015. Ms Avci lodged her application at the Fair Work Commission on 25 June 2015. Her application was lodged 14 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Ms Avci. I wrote to her on 1 July 2015 outlining the matters I was required to consider by the Act and asked her to provide a statement addressing these matters within 14 days. Ms Avci provided a comprehensive statement on 9 July 2015. I issued an Order refusing her application for an extension of time and dismissed her application on 16 July 2015.

[4] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:

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.

[5] 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]

[6] For exceptional circumstances to arise as contemplated by s394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[7] I considered the various criteria to which my attention is directed by s.394 (3) of the Act.

reason for the delay-s.394(3)(a)

[8] Ms Avci provided the following explanation in paragraph 1.4 of her application:

“I have been off work since September 2014 suffering a work place injury due to sexual harassment which occurred during my employment with Imperial Tobacco (harassment period occurred between 2009 to 2014 by two managers from the company)

Due to following I am suffering psychological issues and see a psychologist and practitioner on a regular basis (expenses covered by myself)

I referred the above matter to a solicitor and they are currently acting upon my behalf. During this period I received a letter of termination from Imperial tobacco on the 21st May 2015.

I referred the following unfair dismissal to my solicitor and they forwarded a email response on the 1st of June 2015 saying that they will not be proceeding with unfair dismissal cases on a “no win no fee” basis.

On the 1st of June I forwarded a response to my solicitor wanting to arrange an appointment in relation to the unfair dismissal matter and since then I have been chasing up for an appointment. (Its been over 3 weeks and still I am currently waiting for appointment)

On 25th of June 2015 I decided I would look for a second option in relation the unfair dismissal matter and since then found out the 21-day notice day lodgment period for an unfair dismissal claim. (I wasn’t aware of the following jurisdiction)

On 25th of June I contacted The Fair Work Commission to discuss my matter and they advised me to send the following matter for review.

I believe Imperial Tobacco has unfairly dismissed me and employer has failed its obligation by law to protect me from this type of behavior in the workplace.

They also failed to provide adequate support during my time off work and it's been over 9 months since the initial complaint was lodged in relation to the harassment matter, In addition the company failed to investigate complaint against first boss, which I feel is unjust.

Imperial tobacco has put immense pressure on me mentally & financially and I am left to treat injury caused in the workplace myself. I have also been supporting my self financially since December 2014.”

[9] Ms Avci submitted that she received a letter of termination of employment on 21 May 2015 which she forwarded to her solicitor on 22 May 2015. On 1 June 2015 her solicitors advised they would not act on her behalf without payment. From that time Ms Avci was aware that the solicitor who she had instructed in relation to harassment issues would not act for her or provide advice in the absence of a payment in advance. She did not provide that payment and thereafter could not rely on any failure to provide advice that she was not prepared to pay for. Ms Avci has not provided any explanation for her failure to independently seek advice and assistance after that advice. Information concerning the lodgement of applications is available via the Internet and applications can be lodged online and by telephone. Ms Avci did not make such enquiries in a timely fashion.

[10] I was not persuaded that Ms Avci’s difficulties were out of the ordinary, unusual or uncommon.

whether the person first became aware of the dismissal after it had taken effect-s.394(3)(b)

[11] Ms Avci became aware of the end of her relationship with the respondent on 21 May 2015.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[12] Ms Avci disputed her dismissal by lodging this application.

prejudice to the employer-s.394(3)(d)

[13] I was satisfied that there would be no greater prejudice to the respondent caused by Ms Avci’s application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[14] Merit was a neutral issue in my consideration of this application.

fairness as between Ms Avci and other persons in a similar position-S.394(3)(f)

[15] There was no issue of fairness in relation to any other person in a similar position.

[16] Having considered all of the matters to which my attention is directed by the Act I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application. I was not satisfied that Ms Avci’s circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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