Farrell v Brighton & Seacliff Yacht Club Inc
[2016] FWC 2495
•19 April 2016
[2016] FWC 2495
DECISION
| Fair Work Act 2009 | |
| s.394—Unfair dismissal | |
| Kim Farrell | |
| v | |
| Brighton & Seacliff Yacht Club Inc | |
| (U2016/5324) | |
| COMMISSIONER PLATT | ADELAIDE, 19 APRIL 2016 |
Application for relief from unfair dismissal - extension of time not granted.
[1] On 11 March 2016, Ms Farrell lodged an application pursuant to s.394 of the Fair
Work Act 2009 (the Act) in relation to the termination of her employment by the Brighton &
Seacliff Yacht Club Inc (BSYC).
[2] On 16 March 2016, my Associate corresponded with both Ms Farrell and BSYC and
advised that the extension of time issue would be considered at a telephone conference on
13 April 2016. Information about the extension of time process and criteria was provided to
the parties. Ms Farrell was directed to provide a witness statement and a copy of any
document relied upon relative to the extension of time issue by 30 March 2016. BSYC was
required to submit a Form F3 (Employer Response) by 23 March 2016.
[3] Ms Farrell provided her submission on 13 April 2016, just prior to the hearing.
BSYC submitted an Employer Response (Form F3), objecting to the extension of
| time. | |
| [5] | BSYC submitted that that the dismissal took effect from 21 January 2016. |
| [6] | The application was heard by teleconference on 13 April 2016. Ms Farrell represented |
herself, Mr Kildare represented BSYC. The teleconference was recorded and a sound file
retained.
[7] At the conclusion of the conference I advised the parties that I did not believe
exceptional circumstances existed and that I would dismiss the application and provide my
reasons in writing. My detailed reasons follow.
[8] The portions of the Ms Farrell’s submissions relevant to the out of time considerations
can be summarised as follows:
On 15 January 2016, Ms Farrell was advised of the time limit applicable to unfair
dismissal applications and the need to act promptly;
[2016] FWC 2495
Ms Farrell became aware of the termination on 21 January 2016;
Ms Farrell contends the delay in lodgement was caused by the fact she had other
work to do and had to collate some emails;
Ms Farrell submitted a number of documents including a copy of a Centrelink
Employment Separation Certificate dated 15 January 2016, extracts from a time
and wages booklet, correspondence from United Voice dated 23 February 2016,
and copies of emails between her and BSYC from 2 October to 13 January 2016
and a copy of BSYC payslip relating to the pay period ending on 29 October 2015;
and
Ms Farrell was exchanging correspondence with BSYC office holders until 19
February at which time she handed back the keys.
[9] BSYC’s submission is that:
it disputes that Ms Farrell has been dismissed; and
that Ms Farrell has failed to demonstrate exceptional circumstances within the
meaning of the Act and the application should be dismissed.
Section 394 relevantly states:
“394 Application for unfair dismissal remedy
...
394(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).
391(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 becameaware 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.”
[11] I am satisfied that the application was made some 50 days after the date of
termination and can only be pursued if this time limit is extended. I have considered the
[2016] FWC 2495
provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group
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| Pty Ltd | 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.’
[2016] FWC 2495
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.”
[12] Ms Farrell submits that that the reasons for the delay are based on her having other
work to do and getting some emails together.
[13] On 15 January 2016, United Voice provided advice to Ms Farrell. That advice
included the existence of a 21 day time limit, the need to act promptly and where to find the
application form.
[14] The parties agree that the termination took effect on 21 January 2016 when Ms Farrell
received the Centrelink Separation Certificate. I reject BSYC’s contention that the
employment has not ceased based on the issuance of the separation certificate by BSYC.
[15] Ms Farrell lodged her claim 50 days later.
[16] Prior to receiving the separation certificate, Ms Farrell sought advice from United
Voice and was aware of the time limit and how to lodge a claim. No action was taken to
[2016] FWC 2495
contest the dismissal until 11 March 2016 some 50 days after the date of dismissal, and 19
days beyond the time limit for lodgement of the application
There is no submission before me that the delay resulted in prejudice to the employer,
and accordingly I have determined that prejudice to the respondent is a neutral factor.
[18] As to the merits of the application, as the evidence in support of each party’s
contentions is unable to be tested I have regarded the merits of the application as a neutral
factor.
[19] Considerations of fairness relative to other persons in similar positions, is not a
relevant consideration in this matter.
[20] Having considered the material before me, I am not satisfied that Ms Farrell has
established that the reason for the significant delay in this matter represented an exceptional
circumstance so as to warrant an extension of time. The application will be dismissed on
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| this basis and an Order | giving effect to this decision will be issued. |
COMMISSIONER
Appearances (by telephone):
K Farrell, on her own behalf.
D Kildare, Clubs SA, on behalf of Brighton & Seacliff Yacht Club Inc
Hearing (Conference) details:
2016.
Adelaide:
April 13.
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[2011] FWAFB 975.
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PR579263.
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