Gail Macdonald v Presbyterian Church in WA Presbyterian Homes for the Aged T/A Braemar Presbyterian Care
[2015] FWC 1986
•23 MARCH 2015
| [2015] FWC 1986 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gail Macdonald
v
Presbyterian Church in WA Presbyterian Homes for the Aged T/A Braemar Presbyterian Care
(U2015/2599)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 23 MARCH 2015 |
Application for relief from unfair dismissal.
[1] Ms Gail Macdonald resigned her employment with Presbyterian Church in WA trading as Braemar Presbyterian Care with effect from 30 December 2014. She alleged she was constructively dismissed such that her dismissal was unfair. Braemar deny that it constructively dismissed Ms Macdonald.
[2] Ms Macdonald’s unfair dismissal application lodged on 27 January 2015 was not made within 21 days of the date of the dismissal.
[3] Ms Macdonald had filed an earlier unfair dismissal claim. 1 Braemar objected to that application because it said Ms Macdonald had not been dismissed and the application was not filed in accordance with section 394(2) of the Fair Work Act 2009 (the Act). On 27 January 2015, Ms Macdonald discontinued that application and filed this application.
[4] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 2 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]
(a) the reason for the delay;
[6] After tendering her resignation, but before her resignation took effect, Ms Macdonald attempted to negotiate, through her solicitors, with Braemar about the ending of her employment. That was not successful and on 22 December 2014 her solicitors told her of the 21 day time limit for lodging an unfair dismissal application. She was also told that due to the Christmas/New Year period, she needed to make the application as soon as possible to avoid unexpected delays. She therefore instructed her solicitors to make an application which they did on 24 December 2014. On 27 January 2015, Braemar filed its response to the application. In that response, Braemar objected to the application. As a consequence, Ms Macdonald’s solicitors contacted her and advised her that Braemar objected to the application because it was lodged prematurely. They advised her that she should immediately withdraw her application and lodge another application. They told her that she would need to apply for an extension of time. As a consequence she instructed them to withdraw her application and lodge another application which was done the same day.
[7] Ms Macdonald said she was not aware that the Act did not provide for an application to be made before the last day of her employment.
[8] Ms Macdonald relies upon representative error to support her application for an extension of time. It appears the representative error relied upon by Ms Macdonald was the error of her representatives in filing her earlier application prematurely. It was submitted that had Braemar filed its response to her application earlier, she would have been alerted to the issue before the 21 days time limit had expired. There is no doubt that Braemar did not lodge its response within seven days as required by the Fair Work Commission Rules 2013.
[9] However, there is a further representative error and that is the error in advising Ms Macdonald to discontinue her application. In Mihajlovic v Lifeline Macarthur, 3 the Full Bench made it clear that an application lodged after notice of dismissal had been given, but before the dismissal took effect, is not invalid. In the case of a premature application, the Commission has the discretion to waive the irregularity. It is surprising given the jurisprudence associated with extension of time applications that any legal practitioner would advise a client to discontinue an irregularly made application and take his or her chances in an extension of time hearing.
[10] Braemar submitted that Ms Macdonald’s ignorance about premature applications is not unusual. It accepts that representative error is a factor which may be considered when deciding to extend time.
[11] Braemar relied upon the decision of Deputy President McCarthy in Drake v Coles Supermarket Australia Pty Ltd 4where Deputy President McCarthy said that representative error should be considered when considering fairness between an applicant and other persons. He found in that case that it would be unfair to persons who are represented to have an advantage when compared to those that are unrepresented.
[12] I do not accept that Deputy President McCarthy’s conclusions at paragraph [13] in that case has any general application. Representative error is a factor to be considered.
[13] In this case, Ms Macdonald’s lawyers made two errors. They advised her to make a premature application and then they advised her to discontinue it and make a fresh application. When deciding if representational error weighs in favour of granting an extension of time, one looks to the conduct of the applicant, not the representative. Here, Ms Macdonald relied upon the advice of her lawyers not once but twice. On both occasions her representatives did not provide her with the professional advice she was entitled to expect. It is unusual for a legal representative to advise his/her client to discontinue an irregularly made application and take his/her chances with an extension of time application. This is not a case where Ms Macdonald sat on her hands while her legal representatives did not take steps to progress her claim. She acted on their advice promptly.
[14] I accept that the reason for the delay in lodging the application weighs in favour of granting an extension of time.
(b) whether the person first became aware of the dismissal after it had taken effect;
[15] Ms Macdonald was aware of the dismissal when it took effect. She had the full 21 days to lodge her application. This weighs against granting her an extension of time.
(c) any action taken by the person to dispute the dismissal;
[16] Ms Macdonald disputed her “dismissal” prior to it taking effect. Braemar submitted that the only action taken by Ms Macdonald was to lodge an unfair dismissal application. A copy of the letter sent disputing her dismissal was not before me. I understand the letter was sent on a without prejudice basis and that privilege has not been waived. In those circumstances, I am not prepared to have regard to the letter. However, it is clear that Ms Macdonald disputed her dismissal. She did more than lodge this application. She lodged an earlier application. This weighs in favour of granting an extension of time.
(d) prejudice to the employer (including prejudice caused by the delay);
[17] Braemar says it will be prejudiced because it will incur additional costs in defending the claim. It says that it will now need to respond to allegations not included in the original application. It further submits that it will suffer prejudice because it will have to defend an unfair dismissal application when Ms Macdonald resigned. It will also be prejudiced because it will have to respond to Ms Macdonald’s allegations about its motives.
[18] I accept that Braemar will be prejudiced as it will have to defend an unfair dismissal claim. Its position is no different to the position it would have been in had Ms Macdonald not discontinued her earlier application. However, this prejudice would be present in all matters where an extension of time is applied for. I do not accept that the nature of the case it has to face has changed in any material way. The application form lodged in unfair dismissal matters is not a form of pleading. I do not consider that the prejudice suffered by Braemar weighs against granting an extension of time.
(e) the merits of the application;
[19] Ms Macdonald submitted that it is not appropriate at this stage of the proceeding to make an assessment of the merits.
[20] Braemar submitted that Ms Macdonald’s claim lacked merit. There is no dispute that Ms Macdonald resigned her employment giving two weeks’ notice. Prior to resigning she had received legal advice. Braemar submitted that her action in giving two weeks’ notice in circumstances where she was only required to give one week’s notice does not support her contention that her employment was intolerable and that her trust and confidence in Braemar had been destroyed. Braemar submitted that Ms Macdonald had not made a complaint about what had occurred nor availed herself of the internal procedures. Braemar challenged the factual basis of Ms Macdonald’s claim.
[21] I accept the primary submission of Ms Macdonald that it is not appropriate at this stage of the proceeding to hear and determine the merits of the application. I accept that Ms Macdonald will carry the obligation to establish that she was forced to resign because of conduct or a course of conduct engaged in by Braemar.
[22] However, I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. However, as I am unable to conclude that Ms Macdonald’s claim has no prospects of success, this weighs in favour of granting an extension of time.
(f) fairness as between the person and other persons in a similar position.
[23] It was submitted that it would be unfair to grant Ms Macdonald an extension of time because she did not utilise internal complaints and dispute resolution procedures prior to resigning. I am unable to make any findings about what steps Ms Macdonald took to raise her concerns prior to her dismissal.
[24] Further, it was submitted that it would be unfair to grant Ms Macdonald an extension of time when an unrepresented applicant who made the same mistake as her representative would not be granted an extension of time. I do not accept that an unrepresented party who made the same error as Ms Macdonald’s solicitors would not be granted an extension of time.
[25] I do not accept that Ms Macdonald’s application was late because of a miscalculation of the timeframe. Ms Macdonald’s application was late because she received incorrect advice from her solicitors on two separate occasions.
[26] I do not consider that any issue of fairness between Ms Macdonald and other persons in a similar position is relevant and I find that this criterion is neutral.
Conclusion
[27] I find that there are exceptional circumstances which warrant Ms Macdonald being granted an extension of time. Most of the criterion discussed above weigh in favour of such a finding. Ms Macdonald should have not to pay for the mistakes made by her advisers. Having found that there are exceptional circumstances, I would exercise my discretion to grant Ms Macdonald an extension of time. An order to that effect will be issued with this decision. This application will now be referred to conciliation.
DEPUTY PRESIDENT
<Price code C, PR562310>
1 U2014/16699.
2 [2011] FWAFB 975.
3 [2014] FWCFB 1070
4 [2014] FWC 3514
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