Heather Mill v Cape Jervis Tavern T/A Pakjem

[2016] FWC 1955

[2016] FWC 1955

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Heather Mill
v
Cape Jervis Tavern T/A Pakjem
(U2016/4844)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 30 MARCH 2016

Application for relief from unfair dismissal - extension of time not granted.

[1] Ms Mill has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with Cape Jervis Tavern T/A Pakjem Pty Ltd (Cape Jervis Tavern). At a telephone conference convened on 30 March 2016 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion.

[2] Ms Mill’s application was lodged on 24 February 2016. In that application Ms Mill advised that she became aware of the termination of her employment on 31 January 2016 when that termination took effect. In her application, Ms Mill asserted that the application was lodged within time.

[3] On 2 March 2016 my Associate corresponded with both Ms Mill and Cape Jervis Tavern and advised that the extension of time issue would be considered through a telephone conference on 30 March 2016. Substantial information about the extension of time issue was provided to the parties. Ms Mill was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 21 March 2016.

[4] Additional information was received from Ms Mill on 24 March 2016 in which she advised that:

“The reason this form was not lodged earlier is due to the fact that I was not given correct information at the time. Also I have no car or computer to download forms and the fact I live in cape Jervis which has no public bus service to get around. I really have no idea how these procedures work. I am very isolated here and would appreciate some help in these matters. Kind regards Heather”

[5] Following a request for further clarification of her position, Ms Mill provided further advice on 25 March 2016, in the following terms:

“Yes this is my statement. Due to verbal harassment I suffered anxiety, panic attacks and depression. Was given wrong information regarding lodgment of unfair dismissal forms. Also Renee diamond phills girlfriend asked me to wait and let things cool down before making any rash decisions due to anxiety and depression. I do not drive and have limited access to computer and printer to download forms. Also I did not take delivery into account. Paper work sent on 16.2.16. I thought it would only take 3 days to be delivered. Mail is picked up every night at 6pm.
Kind regards Heather mil”

[6] The Employer’s Response to the application indicated that Cape Jervis Tavern opposed the extension of time and also asserted that it engaged five employees at the time of the termination of Ms Mill’s employment.

[7] Ms Mill participated in the telephone conference. Ms Legoe of The Australian Hotels Association SA represented Cape Jervis Tavern. I note that a sound file record of this telephone conference was kept.

[8] Section 394 of the FW Act 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.”

[9] I have concluded that the application was made some 3 days outside of the 21 day time limit and can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 1 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.” 2

[10] Ms Mill has identified four specific reasons why her application was lodged outside of the statutory time limit. Firstly, she advised that she suffered anxiety, panic attacks and depression. However she has not provided evidence to establish that she was unable to lodge the application in time. More significantly, her application was signed on 16 February 2016 which indicates that she was able to prepare the application within time. The information before me does not establish that her circumstances in this respect are exceptional. Secondly, Ms Mill advised that she had limited access to a computer to download the relevant forms and did not have a car. Again, this cannot be regarded as an exceptional circumstance as Ms Mill advised that she obtained the application on 15 February 2016 and prepared and signed it within time. Thirdly, Ms Mill advises that she was given incorrect advice about the remedies available to her by the WorkCover Corporation. I am unable to take this as any form of representative error and, again, the application was prepared within time. Finally, Ms Mill asserts that she posted the application on 16 February 2016 and thought that it would arrive in time. Whilst I have noted her advice that Cape Jervis only has a mailbox, absent more substantive evidence of an untoward delay in the mail service this cannot be regarded as an exceptional circumstance. I note that, to the extent that Ms Mill argues that she was unaware of time limit, this cannot represent an exceptional circumstance.

[11] Ms Mill became aware of the termination of her employment on the day upon which it took effect.

[12] I am not satisfied that, apart from the late lodgement of this application, Ms Mill took other action to dispute the termination of her employment.

[13] I do not think that an extension of time of this magnitude would prejudice the Cape Jervis Tavern but I have not founded my decision in this matter on that premise.

[14] In terms of the merits of the application, the information before me does not enable a definitive conclusion relative to the merits of the application. Consequently, I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

[15] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[16] Accordingly I have concluded that the material before me does not establish that Ms Mill’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application must be dismissed accordingly and an Order (PR578461) giving effect to this decision will be issued.

Appearances (by telephone):

H Mill on her own behalf.

S Legoe for the respondent.

Hearing (Conference) details:

2016.

Adelaide:

March 30.

 1   [2011] FWAFB 975 (16 February 2011)

 2   Ibid at [10]–[13]

Printed by authority of the Commonwealth Government Printer

<Price code C, PR578460>