Giles v Mandurah Aquatic and Recreation Centre

[2015] FWC 1881

[2015] FWC 1881

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marie Giles
v
Mandurah Aquatic and Recreation Centre
(U2015/3093)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 MARCH 2015

Application for relief from unfair dismissal.

[1] Ms Marie Giles alleged that the termination of her employment by Mandurah Aquatic and Recreation Centre on 22 January 2015 was unfair.

[2] Her unfair dismissal application lodged on 16 February 2015 was not made within 21 days of the date of the dismissal.

[3] 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.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 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;

[5] Ms Giles advised that she did not lodge her application because her dismissal was an extremely emotional time for her. She had worked for the Centre for ten years and she found the investigation difficult. She was not able to seek advice from her colleagues as she was told not to contact anyone. Ms Giles advised that she did not have any medical reports or certificates to support her contention that her emotional state prevented her from lodging her application. She said she was unsure of what options were available to her.

[6] On one of the documents provided to the Commission by Ms Giles is a note that says rang Fair Work 30/1/2015. It further states “they will ring back -you only have a certain amount of time to lodge a complaint.”

[7] Ms Claire Milford, a HR consultant for the Centre, gave evidence that Ms Giles was aware of the Fair Work Commission on 28 January 2015 as Ms Giles told her that this was an option she was considering.

[8] It is not unusual for employees to be distressed when their employment is terminated. Nor is it unusual for employees to be unaware of their options. Ms Giles’ reasons for the delay do not weigh in favour of granting an extension of time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[9] Ms Giles was aware of the dismissal when it took effect. She had the full 21 days to lodge her application. This weighs against the granting of an extension of time.

(c) any action taken by the person to dispute the dismissal;

[10] Ms Giles contacted Ms Milford on 28 January 2015 and advised her that she was considering getting legal advice and contacting the Commission. Ms Milford gave evidence that she agreed with Ms Giles that these options were available to her. Ms Milford told Ms Giles she could write to the CEO but Ms Giles did not do so. While Ms Giles took steps to make inquiries about what she could do she took no steps to dispute her dismissal until she lodged her application. This weighs against the granting of an extension of time.

(d) prejudice to the employer (including prejudice caused by the delay);

[11] It was not submitted that there was any prejudice to the Centre. It was submitted that the lack of prejudice does not warrant a finding of exceptional circumstances. I agree but I consider it is a factor that weighs in favour of such a finding.

(e) the merits of the application;

[12] 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 Giles’ 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.

[13] It was submitted that an examination of recent cases discloses that employees who have filed their applications late by 1-5 days who relied upon their adverse reaction to being dismissed to explain the delay but who did not provide any medical evidence to support a finding that they were incapable of making an application, have not been granted an extension of time and it would be unfair to treat Ms Giles differently. I am not able to find on the material put before me that Ms Giles is in a similar position to the applicants in the cases cited. I consider this criterion to be neutral.

Conclusion

[14] I am not satisfied there are exceptional circumstances warranting the granting of an extension of time. There is nothing unusual about Ms Giles’ reasons for the delay in lodging her application and the criteria that weigh in favour of extending time do not sufficiently outweigh the lack of a reasonable explanation for the delay. Accordingly, Ms Giles’ application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

M. Giles on her own behalf.

D. Samarin for the Respondent.

Hearing details:

2015.

Melbourne and Perth, by telephone:

18 March.

 1   [2011] FWAFB 975

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