Jaki Peris v Indigenous Land Corporation

[2015] FWC 3752

[2015] FWC 3752

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jaki Peris
v
Indigenous Land Corporation
(U2015/7144)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 4 JUNE 2015

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

[1] Through her representative Mr Hegarty, Ms Peris 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 the Indigenous Land Corporation.

[2] Ms Peris’ application was lodged on 24 April 2015. That application advised that Ms Peris’ employment was terminated with effect from 24 February 2015. The application sought that an extension of time on the basis of the following advice:

“1. The Applicant believed she had a right to fair treatment from her employer including a right to be protected from unfair treatment when she was not working well due to a death in the family. She believed her rights were protected and made an application to the Commission under a General Protections Application Involving Dismissal. This application was presented to the Fair Work Commission on 16 March 2015 within the relevant period for filing such application. The matter came before the Commission on 16 April 2015. On that occasion the Applicant became aware she could not be reinstated and further that there would be significant difficulties (and costs) in pursuing a General Protections claim. It became apparent to her that an unfair dismissal claim was the preferred approach and therefore discontinued the Protections claim to file for Unfair Dismissal.
2. The earlier claim was not late and made it clear to the employer aware the applicant was contesting the dismissal.
3. At all times the applicant was suffering stress due to underlying issues, the death of her brother-in-law, the process leading to her dismissal and the dismissal itself which hampered her ability to make appropriate decisions.
4. The applicant suffered a miscarriage on 17 January 2015 and underwent two operations related to the miscarriage on 21 and 25 January 2015 further compounding her stress.
5. The employer is well aware of the circumstances surrounding the dismissal and the fact of her claim and no prejudice to the employer arises in presenting the claim for unfair dismissal.
6. The process adopted by the employer was confusing involving allegations which were never properly advised to the applicant and changed over time.
7. The investigation failed to properly address and/or fully investigate relevant issues such as the applicant’s mental health. The process exacerbated her stressed condition which led to the alleged behaviour in the first place.
8. The Applicant’s situation fulfils the definition of exceptional circumstances - Cheyne Leanne Nulty v Blue Star Group P/L [2011] FWCFB 975 - refer paragraph 13.” 1

[3] On 1 May 2015 my Associate corresponded with both Ms Peris and the Indigenous Land Corporation and advised that the extension of time issue would be considered through a telephone conference on 3 June 2015. Substantial information about the extension of time issue was provided to the parties. Ms Peris was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 27 May 2015.

[4] Substantial information was received from Ms Peris. Whilst I have taken all of this information into account, I have briefly summarised it in the following terms.

[5] Ms Peris made a stress-related workers compensation claim in late 2014. She advised that the conduct of the Indigenous Land Corporation in this respect further affected her mental health and contributed to a miscarriage which she suffered on 17 January 2015. She required further medical treatment on 25 January 2015. She advised that the loss of another family member in June 2014 continued to affect her over this time. On 30 January 2015 Ms Peris was advised that the Indigenous Land Corporation had concluded that she had breached the code of conduct and was recommending the termination of her employment. She advised that, until she received this advice, she was not aware that her behaviour could result in termination of employment. She was unable to contact her union delegate at that time. Ms Peris received further advice dated 10 February 2015 which confirmed that the Indigenous Land Corporation considered her conduct to represent a breach of the code of conduct. She advised that she was not afforded the opportunity to be part of this review but that she was aware that she could submit a letter for the Chief Executive Officer’s consideration. As she could not contact her union representative she engaged a lawyer who acted on her behalf to seek a review of the investigation process. On 25 or 26 February 2015 Ms Peris was advised of the termination of her employment effective from 24 February 2015. She was paid two weeks salary in lieu of notice. Ms Peris disputes the basis for the termination of her employment and the process followed by the Indigenous Land Corporation.

[6] Ms Peris advised that:

“I made an application to the Fair Work Commission within the 21 day time frame with a diminished cognative capacity under a General Protections Application. After three months of the process that was highly confusing and changed and changed again and I was diagnosed medical condition and personal loss I could barely function nor comprehend what was taking place.

After significant treatment and interventions, I have a much improved cognitive function and attended the Commission hearing 16 March 2015. Due to what was explained to me around the pursuing the General Protections claim (particularly the timely and costly legal argument for both parties) and that the ILC would not consider reinstatement as an option, which I had requested and was not made aware prior to the hearing that the ILC were refusing this outright, I discontinued the application.” 2

[7] She asserts that this application addresses different matters to those canvassed within the general protections claim. She has provided a substantial quantity of information in support of the merits of her application.

[8] The Employer’s Response to the application indicated that the Indigenous Land Corporation opposed the extension of time. The Indigenous Land Corporation advised that:

“The Applicant has not established exceptional circumstances for not lodging her application on time. She made, with the benefit of legal representation, a decision to commence a general protections matter. She decided to discontinue that application at the conference stage and then waited a further 8 days before filing an unfair dismissal claim. There is no reasonable explanation for delay and certainly none that could amount to an exceptional circumstance.

The Respondent has suffered prejudice by the costs, lost productivity and inconvenience in responding to the general protections claim and will suffer further prejudice if it needs to respond to a second application dealing with essentially the same issues.

The proposed substantive application lacks merit and fairness between parties in a similar position dictates that the ordinary time limit should be complied with, especially where there are no exceptional circumstances and that the Applicant had the benefit of legal representation throughout.” 3

[9] Ms Peris participated in the telephone conference but was represented by Mr Hegarty. A grant of permission to this effect was made pursuant to s.596(2)(a) and (c) of the FW Act. Mr Prince as the Australian Government Solicitor represented the Indigenous Land Corporation, again, pursuant to a grant of permission made under s. 596 (2) (a) and (c). Mr Lindholm, Ms Round, Mr Petty and Mr Nguyen of the Indigenous Land Corporation also participated in the conference. My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[10] 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.”

[11] On the information before me I am satisfied that the application was made some 38 days outside of the 21 day time limit and hence, 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 4 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.”

[12] Ms Peris’ reasons for the delay detail her stress around the time of the termination of her employment and the time up to her participation in a conciliation conference relative to her s.365 application. Notwithstanding this, and the 1 May 2015 direction for the provision of a copy of any document upon which she relied, no medically based evidence to this effect was provided to me. Ms Peris was represented by Mr Hegarty in both the general protections application, which was the subject of a conference on 16 April 2015 at which the application was discontinued, and in these proceedings. In the conference before me, Mr Hegarty advised that, to the extent that the delay was due to the lodgement of the earlier general protections application, he was prepared to accept that representative error was a contributing factor. I have taken it that Mr Hegarty is asserting that he could have misconstrued the instruction to lodge the earlier application pursuant to the general protections of the FW Act. Having considered the earlier general protections application, I have accepted that representative error may have been a contributing factor. However, the absence of medical evidence to substantiate that Ms Peris was unable to make appropriate decisions or issue proper instructions to Mr Hegarty relative to the earlier application, means that, on the information before me, I am not persuaded that the earlier application was an instance of clear representative error which ought not be visited upon Ms Peris. Consequently, to the extent that Ms Peris now seeks to pursue this application, I have concluded that she is now seeking another forum in which to ventilate her concerns. I have even greater concern over the period between 16 April 2015, when the initial general protections application was discontinued and the lodgement of this application on 24 April 2015. Ms Peris has agreed that, in the course of the conference on 16 April 2015, she was aware of the requirement to lodge an unfair dismissal application within 21 days from the date the termination of her employment took effect. Ms Peris advised that she requested Mr Hegarty to lodge this application on 17 April 2015. Mr Hegarty advised that it then took until 24 April 2015 for him to lodge the application. In the context of clear knowledge of the 21 day time limit, this is a long time. Ms Peris was not able to detail to me actions which she took to pursue the matter over this period. Ms Peris does not rely on her diminished capacity to act over this time. Accordingly, I do not consider that an acceptable reason for the delay between 16 April and 24 April 2015 has been established to me. As a result, I am not satisfied that the reasons for the late lodgement of this application meet the requirements for an exceptional circumstance.

[13] It is clear from Ms Peris’ application that she was informed of the termination of her employment by letter, but that she may have received this letter two days after the termination of her employment took effect. I have taken this into account in considering the extension of time issue.

[14] It is clear that, apart from the late lodgement of this application, Ms Peris pursued her general protections application so as to challenge the termination of her employment.

[15] Given that the Indigenous Land Corporation has already responded to the earlier general protections application, I consider that an extension of time of this magnitude is most likely to prejudice the Respondent, but I have not relied upon this as a basis for refusing an extension of time.

[16] In terms of the merits of the application, the information before me does not enable a definite conclusion. I have noted that Ms Peris asserts that she has a prima facie case on the merits. However, I am not persuaded that the merits of this application are such that they compel an exceptional circumstances finding given my reservations about the reasons for the delay. Notwithstanding this, because information which enables a more comprehensive assessment of the merits of the application is not available to me, I have regarded the merits of the application as a neutral factor relative to the extension of time.

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

[18] Accordingly I have concluded that the material before me does not establish that Ms Peris’ circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR567996) giving effect to this decision will be issued.

Appearances (by telephone):

M Hegarty, as agent, for the applicant.

R Prince, of counsel for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

June 3.

 1   Form F2, para 1.4

 2   Statement of Ms Peris, paras 24 & 25

 3   Form F3, para 2.2

 4   [2011] FWAFB 975

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