Francinaide Doyle v ISS Facility Services Integrated Services

[2017] FWC 903

[2017] FWC 903

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Francinaide Doyle
v
ISS Facility Services Integrated Services
(U2016/14397)

COMMISSIONER PLATT ADELAIDE, 14 FEBRUARY 2017

Application for relief from unfair dismissal – extension of time – application dismissed.

[1] Ms Francinaide Doyle has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with ISS Facility Services Integrated Services T/A ISS Facility Services (ISS) which took effect on 10 August 2016.

[2] This application was lodged on 2 December 2016.

[3] Ms Doyle’s application explained the failure to lodge the application within 21 days from the dismissal as follows:

“We made an application F2 on 19/08/2016 which was within 21 days, however at the conciliation we were advised by Megan Kearnes to dismiss the application because she said we were using the wrong form, because we were pursuing a Redundancy payout and not Unfair dismissal and that we should pursue our matter through FWO instead.

Megan also gave us only three days to file a discontinuance notice which put us under duress and we now realize that filing that was a big mistake, we had no idea that this action would hinder the pursuit of our case. We had no intention of discontinuing our case.

At the conciliation with the Ombudsman, Freja Soininen told us that we were using the correct form originally, and that we should go back to the FWC and reopen the case. (original emphasis)

We have been trying our best to do everything correctly, but were given misleading advice.

We are hereby asking for an extension of time as we were unable to reopen our original application (U2016/10480) due to the FWC not being able to overturn the Notice of Discontinuance, which was filed by mistake.”

[4] On 10 January 2017, my Associate corresponded with Ms Doyle and ISS and advised that the extension of time issue would be considered at a telephone conference on 13 February 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Ms Doyle was directed to provide a statement concerning the extension of time and any documents to be relied upon by 6 February 2017. ISS was invited to file any material in reply by 10 February 2017.

[5] ISS filed a Form F3 Employer’s Response on 3 January 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time.

[6] Ms Doyle failed to file any submissions but sought an extension after being contacted by my Associate on 7 February 2017. Ms Doyle submitted a number of documents and an email later of 7 February 2017.

[7] The history of this matter is unusual. Ms Doyle lodged an earlier unfair dismissal application on 23 August 2016, to which ISS responded by filing a Form F3 Employer’s Response on 13 September 2016. The claim was the subject of a conciliation conference on 28 September 2016.

[8] Ms Doyle’s employment was terminated by way of redundancy. It appears that there was no dispute that the dismissal was a genuine redundancy or that it was not unfair. Ms Doyle’s complaint was that she was not paid a severance payment. ISS holds the view that the dismissal was a genuine redundancy and a case of the ordinary and customary turnover of labour and as such Ms Doyle was not entitled to a severance payment by virtue s.119(1)(a) of the Act. Ms Doyle disputes that her dismissal was a case of ordinary and customary turnover of labour.

[9] I have no independent information as to what occurred at the Fair Work Commission (FWC) conciliation conference on 28 September 2016. The matter did not resolve during the conciliation conference and at 12:18pm on that day the Conciliator emailed the parties and advised that Ms Doyle needed some time to consider whether to pursue the unfair dismissal application. Ms Doyle was requested to advise the Conciliator by COB 30 September 2016 what she intended to do.

[10] On 30 September 2016, Ms Doyle left a voice message with the FWC that she wished to ‘cancel’ the application.

[11] On 3 October 2016, Ms Doyle left a further voice message with the FWC advising she wanted to dismiss the case and advised she would apply with the Fair Work Ombudsman. 1

[12] On 4 October 2016, the Commission wrote to both parties confirming that Ms Doyle did not wish to continue with her application and that the file would be closed and a notice of discontinuance should be filed.

[13] On 20 October 2016, the parties participated in a mediation conducted by the Fair Work Ombudsman. The mediation did not resolve the issue.

[14] On 25 October 2016, an un-dated Form F50 Notice of Discontinuance signed by Ms Doyle was received by the FWC.
[15] On 26 October 2016, Ms Doyle contacted the FWC and advised that she had spoken with the Fair Work Ombudsman and a lawyer and sought to re-open her discontinued matter.

[16] On 4 November 2016, Ms Doyle emailed the reasons for her wanting the matter to be re-opened. Those reasons included:

• She was unable to find a form on the FWC website concerning redundancy payouts so she used a Form F2 (Unfair Dismissal Application).



• The conciliator suggested to her at the conciliation that her current application would be heard as an unfair dismissal claim and suggested she seek mediation with the Fair Work Ombudsman.



• She had met with a representative of the Fair Work Ombudsman who suggested she re-open the application with the FWC.



• Her lawyer agreed that she should try and re-open her case.

[17] On 8 November 2016, Ms Doyle was advised that Deputy President Clancy had refused to grant her request for the application to be re-opened.

[18] There was some further communication between Ms Doyle, her partner Mr Urquhart and the FWC concerning what had happened and options available to Ms Doyle.

[19] Ms Doyle filed this application on 2 December 2016.

[20] ISS filed a Statement by Mr Jed Moore, Employment Counsel – Pacific and written submissions on 10 February 2017.

[21] A hearing was conducted by way of telephone conference on 13 February 2017. A sound file record of the telephone conference was kept. Mr Urquhart represented Ms Doyle and Mr Moore represented ISS.

[22] Ms Doyle’s position is summarised as follows:

• She pursued a claim against ISS within time.



• The application was discontinued on the understanding that she should pursue her concerns about the failure to pay severance pay through the Fair Work Ombudsman.



• She felt under duress or pressured by the deadline imposed by the conciliator.



• She does not dispute discontinuing her application in the manner described above.



• She did not intend to stop her application that she was not paid her entitlements but only that the dismissal was unfair.



• She does not and has never contended that the dismissal was unfair or that the redundancy was not genuine.



• She believes she was provided with conflicting advice from the FWC and the Fair Work Ombudsman and should be given another chance to prosecute her claim.

[23] At the telephone conference, Mr Moore relied on the submissions filed and contended that there were no exceptional circumstances on the basis that;

• Ms Doyle had an opportunity to seek legal advice before filing her notice of discontinuance.



• After discontinuing the first application, Ms Doyle lodged a complaint with the Fair Work Ombudsman and the parties participated in mediation on 20 October 2016.



• ISS confirmed its position that the dismissal was due to the ordinary and customary turnover of labour and an exception to the redundancy pay applied.



• The FWO concluded the complaint on 20 October 2016 and advised Ms Doyle to obtain independent legal advice.



• About 15 days later, Ms Doyle then unsuccessfully approached the FWC to have the original application re-opened.



• On 8 November 2016, the FWC advised that the first application would not be re-opened.



• Ms Doyle lodged this application on 2 December 2016.



• No explanation has been given as to the delay in filing after the FWO matter had finalised or after the FWC advice that it rejected the application to re-open the first matter.



• ISS would be prejudiced as a result of the 6 month delay since the termination.



• As to the merits, Ms Doyle accepts that the dismissal was not unfair and is seeking to prosecute an underpayment of wages claim.



• ISS denies that Ms Doyle is entitled to the severance payment.

[24] 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.”

[25] This unfair dismissal application by Ms Doyle was made 93 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[26] I have considered the provisions of s.394(3) of the Act 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.”

[27] Having listened to the voice messages left by Ms Doyle, reviewed the notice of discontinuance and having regard to three consistent communications that were made requesting that the matter be discontinued without qualification, I am unable to accept that Ms Doyle’s submission that she sought to withdrew the original application but not any underpayment of wages claim. There was never an underpayment of wages claim before the FWC.

[28] Ms Doyle now seeks to rely on what she perceives as conflicting advice between the FWC and the Fair Work Ombudsman, to pursue what is best characterised as an underpayment of entitlements claim.

[29] I am unable to comment on the content of the information provided to Ms Doyle by the FWC or the Fair Work Ombudsman, however, it would be unusual for employees of these Organisations to provide advice as opposed to discussing options.

[30] The consideration of this matter is complicated by the fact that Ms Doyle discontinued the previous application and the submission of this further application could be seen as duplicitous and/or an abuse of process. 3 I do not believe that the application can be properly characterised as frivolous, vexatious or oppressive. It is, however, duplicitous and for reasons which I will detail later, from an unfair dismissal perspective, devoid of any prospects of success.

[31] Even if I were to accept Ms Doyle’s confusion over the appropriate place to pursue the claim, that does not explain the entire period of the delay. Particularly delays after the Fair Work Ombudsman was unable to resolve the issue and after the FWC advised it would not re-open the original matter.

[32] The applicant needs to provide a credible explanation for the entire period of the delay, 4 but has not done so.

[33] The delay in this matter is considerable, however whilst I accept it presents prejudice to ISS, it is not determinative in this matter.

[34] Consideration of fairness relative to other persons in similar positions is a neutral factor.

[35] In terms of the merits of the application, Ms Doyle agrees that the redundancy was genuine (having specifically considered the criteria in s.389 of the Act) and does not contend that it is unfair within the meaning of s.394 of the Act. The pursuit of a claim of unfair dismissal, having made this concession, is inexplicable, as I mentioned earlier in these circumstances it is doomed to fail. Accordingly, I have regarded the merits as a factor which weighs significantly against the extension of time issue.

[36] Whilst I make no assessment of the prospects of success, Ms Doyle continues to have access to a remedy in respect of her claim that her entitlements were underpaid in the Federal Court or possibly the Western Australian Industrial Relations Commission (denied contractual benefits claim).

Conclusion

[37] For the reasons I have set out above, I am not satisfied that Ms Doyle’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order 5 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr Urquhart on behalf of the Applicant.

Mr Moore on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

February 13.

 1   Both of these recordings were played to the parties during the hearing of this matter

2 [2011] FWAFB 975

 3   Ridgeway v R (1995) 184 CLR 19 at 74-75

 4   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

 5   PR590224

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