Helen Hamlet v Scott Corporation t/as Chemtrans

[2015] FWC 739

[2015] FWC 739

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Helen Hamlet
v
Scott Corporation t/as Chemtrans
(U2014/15446)

DEPUTY PRESIDENT SAMS SYDNEY, 5 FEBRUARY 2015

Application for relief from unfair dismissal - summary dismissal for serious misconduct - application for a remedy for unfair dismissal lodged ‘out of time’ - consideration of ‘exceptional circumstances’ - ‘exceptional circumstances’ not made out - admitted conduct - merits of application negligible - application dismissed.

INTRODUCTION

[1] This decision arises from an application for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). Ms Helen Hamlet (the ‘applicant’) was dismissed from her employment with Scott Corporation t/as Chemtrans on 3 November 2014 for alleged serious misconduct. She lodged her application for an unfair dismissal remedy on 26 November 2014. The Act mandates a 21 day time limit for initiating an application for a remedy from unfair dismissal.Her application was therefore lodged 2 days outside the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application lodged by the applicant and the Form F3 Employer’s Response filed on 28 November 2014. I have also had regard to a letter forwarded by the applicant to the Commission dated 27 November 2014. On 2 December 2014, the Commission wrote to the applicant outlining the matters I am required to consider under s 394(3) of the Act and asking her to provide a statement addressing those matters within 14 days. The applicant provided a statement of one page on 12 December 2014. Having considered this material, I issued an Order refusing an extension of time and dismissed the application on 20 January 2015. These are my reasons for doing so.

STATUTORY PROVISIONS AND PRINCIPLES

[3] The relevant legislative framework, guiding the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘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.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, a Full Bench of the Commission 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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].

[5] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing of an unfair dismissal application. In other words, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application ‘out of time’; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia [2014] FWCFB 2288 succinctly described the Commission’s decision making process under s 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I turn now to each of the criteria set out under s 394(3) of the Act.

CONSIDERATION

Reason for the delay (s 394(3)(a))

[6] The letter forwarded to the Commission by the applicant, dated 27 November 2014, was as follows:

‘I contacted the Fair Work Commission several times in the 21 day period and was given a series of conflicting information. I eventually decided to make an application any in an effort to rrectify [sic] the wrong. I posted the letter 2 days prior to the closing date and it failed to arrive in due time. I do not own or have regular access to the internet or a computer and was unable to send the application by any other means.

I have not been reliably informed about any of my rights with regard to being stood down without pay or any of the other actions taken against me. I would ask a chance be permitted me to redress the wrong,Please.’

[7] In further written submissions, the applicant set out the sequence of events leading up to her dismissal as follows. She had initially contacted the Fair Work Ombudsman (FWO) in relation to the respondent’s decision to stand her down and claimed she was advised that she could challenge the decision, because it was illegal to stand her down, without pay. She said she was also advised that she could lodge an unfair dismissal application, if she was later sacked. She was unclear as to what was happening and believed that she may return to work. When she returned to work on 3 November 2014, she received a letter of termination, which was expressed as follows:

‘We regret to inform you that your employment contract with Chemtrans is terminated immediately.

On 3rd October 2014 you told your manager Bernadette Karslake and another employee Jenny Jensen that you had been speeding in a company owned vehicle. You further stated, words to the effect, that you may have been caught speeding by a speed camera and that at the time you were driving at a speed of 130klm per hour in a 100klm zone.

The Golden Rules policy which covers speeding in a combination (B-Double) states that a driver who speeds at or above 115klm per hour in a 100klm zone will have their employment contract immediately terminated.

As a professional truck driver in charge of a company Ute we expect you to drive safely at all times. Driving at speeds at or above 30klm per hour of the permissible speed limit is reckless behaviour which constitutes serious misconduct.

The fact that we have yet to receive notification that a driving offence was committed does not in any way detract from the fact that by your own admission you did grossly exceed the minimum speed limit. Your behaviour whilst in charge of a company owned vehicle placed you and other road users at an unacceptable risk.

Importantly but less so than the safety and wellbeing of others, you potentially put at risk the excellent road safety record of Chemtrans.

Please return any company property you may have in your possession today prior to leaving the site.’

[8] The applicant complained that she had been given conflicting advice in that when she contacted the FWO later that day, FWO had referred her to the Commission. Someone at the Commission then referred her back to the FWO. She then contacted ‘multiple’ lawyers, but was unable to pay them. Legal Aid was also unable to help. She was again referred to the FWO and then to the Commission.

[9] At some later time, the applicant rang the Commission and was told that she could file an unfair dismissal application, but could not contest the 30 day stand down period, as she was no longer employed. She then attempted to complete the Form F2 application, but was unable to complete it without legal advice. As she was unclear as to the reason for her termination, she phoned Mr Hearne, the respondent’s General Manager, Corporate Services. She completed the Form F2 on 22 November 2014 and posted it, as she had no access to email. It should have arrived on 25 November 2014. She borrowed money and contacted a lawyer in Rockhampton for an appointment on 28 November 2014.

[10] The applicant stated: ‘I wish to say this is a most confusing process without legal knowledge. This legal knowledge is beyond my current financial means after nearly 2 months without work.’ She added that she had been unsuccessful in gaining further employment in the industry and that her future capacity to gain employment was seriously prejudiced because of her dismissal. She was now employed in another industry.

[11] Even on the applicant’s own materials, I am unable to conclude that the reasons cited by her constitute ‘exceptional circumstances’ within the meaning of s 394(3) of the Act. Legal assistance or representation is not required to file an application for a remedy for unfair dismissal and, indeed, parties frequently represent themselves in such matters before the Commission. Moreover, the applicant’s Form F2 application was completed by her in full, seemingly without difficulty or legal advice. I note that the relevant form provided by the Commission is simple and straightforward and extensive guidance is provided on the Commission’s website as to the lodgement of such an application.

[12] Moreover, on the applicant’s own evidence, she expected that the application posted to the Commission would arrive on 25 November 2014 - still two days outside of the statutory time limit set out in s 394(2) of the Act. Tempting the vagaries of Australia Post’s delivery service is hopeful at best, and reckless at worst. Moreover, while the applicant said that she had no access to internet and email, I observe that it is also possible to lodge an application for an unfair dismissal remedy, over the phone in accordance with Rule 9 of the Fair Work Commission Rules 2013.

[13] In addition, I note that given the clearly stated reason for termination set out in the letter of termination - a reason which she apparently admitted - it is disingenuous for the applicant to suggest that she needed time to contact the respondent to clarify the reason for her dismissal.

[14] In all the circumstances, the Commission cannot be satisfied that the applicant’s stated reason/s for filing her application ‘out of time’ constitute ‘exceptional circumstances’, as contemplated by the statute.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[15] In her Form F2, the applicant identified 3 November 2014 as the date on which she became aware of her dismissal, effective that same day. This was corroborated in the respondent’s Form F3 Employer’s Response and the written reasons for the delay. I find that the applicant first became aware of her dismissal on 3 November 2014.

Any action taken by the person to dispute her dismissal (s 394(3)(c)

[16] The applicant contacted the FWO shortly after she was stood down. On her own evidence, she was made aware, at this time, that she may have grounds to dispute her unpaid stand down and that she would be able to file an unfair dismissal application, if she was dismissed. Given these circumstances, it appears likely that the applicant was pursuing two separate and distinct applications. It is possible that this was why the FWO referred the applicant to the Commission and vice versa, although this is not entirely clear. However, I find that the first concrete action taken by the applicant in relation to her dismissal was the filing of this application; albeit that it apparently took some time for her to complete it.

Prejudice to the employer (s 394(3)(d)

[17] The applicant did not specifically address this criterion. Given the short delay and the circumstances of the case, prejudice to the employer is a neutral factor in my consideration of this matter.

Merits of the application (s 394(3)(e))
[18] The applicant did not specifically address the criteria set out in s 387 of the Act, although in her application, she said that she should be ‘presumed innocent until proven guilty’. Prior to her dismissal, she had made no formal statements, had attended no performance management interviews and had not been subject to any warnings or counselling. She complained that the process related to her stand down was improper. She had been fatigued and had a medical certificate setting out that she was suffering from fatigue, effective 3-11 November 2014 (The file in this matter does not appear to include any medical certificate).

[19] The applicant noted that the respondent’s Golden Rules policy referred to driving in a B-Double combination vehicle, rather than the utility vehicle she had been driving at the time of the incident. No speeding fine had yet been received. In the Form F3 Employer’s Response, the respondent put that the applicant’s admitted behaviour of driving at 130km/h, justified instant dismissal. Nevertheless, her Manager may have erred in standing her down, rather than summarily dismissing her.

[20] At this point, I remind the applicant that the presumption of ‘innocent until proven guilty’ is a criminal presumption, not a civil one under the Fair Work Act 2009. In any event, there can hardly be a presumption of innocence when the offender admits their guilt.

[21] It is appropriate to note that a consideration of the merits of an application at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis. It is clear that the applicant was dismissed for serious misconduct. Accordingly, her submissions as to performance management, warnings and counsellings are not relevant. The applicant has not denied the conduct (driving at 130km/hour in a company vehicle) and appears to suggest that the Golden Rules Policy, which refers to speed limits in large, combination vehicles, is not relevant. In my view, it is not the type of vehicle which is a relevant factor, but the fact that she had admitted speeding in a company vehicle. To suggest otherwise is a ‘red herring’. In any event, given the serious safety issues, the unlawful nature of that conduct and the possible damage to the respondent’s reputation, it seems apparent to me that this conduct, if proven, would constitute serious misconduct. The fact that a fine has not been issued is not determinative. Given these circumstances, I am able to make a prima facie assessment that the applicant’s prospects of success are negligible.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))

[22] The applicant did not respond to this criterion. For the reasons I have given above, I do not consider that the applicant’s position in relation to another person in a similar position is unfair. It appears to be a conventional summary dismissal on the grounds of serious misconduct. One might reasonably expect that other persons in a similar position would also find themselves out of a job.

CONCLUSION

[23] Having considered all of the matters which the Commission is required to take account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 20 January 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code G, PR560573>