Jeanette Alterator v Crawford & Company (Australia) Pty Ltd T/A Crawford Contractor Connection

[2014] FWC 8519

[2014] FWC 8519

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeanette Alterator
v
Crawford & Company (Australia) Pty Ltd T/A Crawford Contractor Connection
(U2014/12069)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 28 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Ms Alterator and the respondent ended on 24 July 2014. Ms Alterator lodged her application at the Fair Work Commission on 27 August 2014. Ms Alterator’s application was lodged 12 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Ms Alterator. The application contained an explanation for delay which is set out below:

“I currently care for my elderly mother and uncle and the loss of my employment together with the short notice provided and the way it was handles has affected me emotionally. The recent dismissal occurred during a difficult personal time where I was and still am recovering from a recent operation and have also just been diagnosed with polymyalgia rheumatica.

Whilst also looking for new employment, it is only now that I am in a position to properly act and address this issue.”

[4] I wrote to Ms Alterator on 11 September 2014 outlining the matters I was required to consider by the Act and asked Ms Alterator to provide a statement addressing these matters within 14 days. Ms Alterator provided a statement on 21 September 2014. It is set out below:

“At the of my redundancy, I had intended to dispute that decision and not make an application to the Fair Work Commission.

My redundancy coincided however with me falling ill. I had returned to work only a few weeks prior from having a serious facial operation which became infected of which I was still recovering.

Additionally, within one day of being made redundant my health had rapidly deteriorated. I found myself extremely exhausted all day and had chronic body pain almost to the point of being immobile. After having these symptoms for a week I forced myself to seek medical attention. My doctor diagnosed me with a condition called Polymyalgia Rheumatica and started me on a series of medication.

Please find attached material provided by my doctor, including a medical certificate advising I was unable to cope with every day activities between 24 July and 28 August 2014 and a basic summary of the illness diagnosed.

This all occurred while making an effort to seek new employment and juggle caring for my elderly mother who I am responsible for.

Collectively, the above reasons meant I was incapacitated and unable to lodge an application disputing my dismissal in time. Once I had started treatment and my health had sufficiently improved I immediately made my application.”

[5] This statement attached two medical certificates from her Doctor. One certificate, dated 16 August 2014, advised that Ms Alterator was suffering from Post Traumatic Stress Disorder from her work redundancy and was unable to cope with the activities of daily living from 24 July 2014 to 18 August 2014. The other certificate was dated 10 June 2014 and advised that Miss Alterator was unable to attend to her usual duties/occupation from 2 June 2014 to Friday, 13 June 2014.

[6] On 3 October 2014 I advised the respondent that I was inclined to grant the application on the basis of the statement and material supplied and asked them to provide a response within 10 days.

[7] The respondent's answer is set out below:

“The Requirements under section 394(3)

(a) The reason for the delay

14. The Applicant has provided some documentation to the Commission in the form of medical certificates. The medical certificate that appears to be the most relevant to the determination of this Application is a Certificate dated 16 August, 2014.

15. The Respondent draws to the Commission’s attention that the Certificate dated 16 August, 2014 provided by the Applicant is signed on 16 August but it then states that the Applicant could not cope with activities of daily living from 24 July until 28 August. In effect, the statement by the medical practitioner is a “back-dated diagnosis”.

16. In the circumstances, the Respondent submits that the Commission should place no weight (or less weight) on a back-dated medical certificate.

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

17. The Applicant was aware of the dismissal on 24 July, 2014 being the day that the termination of employment took effect.

(c) Any action taken by the person to dispute the dismissal

18. No action was taken by the Applicant to dispute the dismissal until the Application was filed in the Commission on 27 August, 2014

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

19. The prejudice to the Respondent is that it has undertaken a bonafide redundancy process. Accepting the application out of time means that the Respondent is put to the burden of time and expense in circumstances when 4 positions were made redundant.

20. If the Application is accepted out of time, the Respondent proposes to advance its case that the termination of the Applicant’s employment was a case of genuine redundancy under S.389 of the Act.

(e) Merits of the Application

21. The Respondent submits that the Application has no merit because the termination was a case of genuine redundancy within the meaning of section 389 of the Act.

22. The Respondent relies on the facts outlined above between paragraphs 3 – 11 inclusive.

23. The Respondent contends that the dismissal of the Applicant cannot be unfair if the dismissal was a case of genuine redundancy.

24. The Respondent submits that the termination of the Applicant’s employment was not harsh, unjust or unreasonable.

(f) Fairness as between the person and other persons in a similar position

25. The Respondent submits that the Applicant was one of four employees of the Respondent whose employment was terminated for reasons of genuine redundancy arising from a bonafide restructuring decision."

[8] I wrote to the applicant on 22 October 2014. I advised her that the medical certificates provided to me certified her unfit for her usual duties and occupations. They did not certify that she was unfit to lodge an application for unfair dismissal. I pointed out that applications of this kind could be lodged by telephone or online. I asked her to seek further medical evidence as to whether she had any medical incapacity to lodge her application within time. Ms Alterator responded as follows:

“As an office worker, my usual duties involve the making of calls and drafting emails, among other activities.

The fact of the matter is that I was bedridden and asleep most of the day over the relevant time period. Importantly, the times when I was awake I was not in the mental state to attend to may affairs, carry on a phone conversation or write an email. Dealing with my medical condition was my primary focus.  As per my material, it has only been through prescribed medication and a significant (sic) amount of rest that I have been able to regain my health to the degree to which I could lodge a claim.

It would be difficult for a doctor to certify a person was unable to perform a specific task, such as making a phone call, without it drawing him or her into having to certify they could or could not do a multitude of other specific tasks as well, especially when it was apparent to my doctor I was completely unable to work, which encompasses much more than simply those actions you raised.

I submit that my doctor has already provided sufficient medical evidence, given he has specifically certified I was "unable to cope with the activities of daily living". This clealy (sic) incorporates the making of phone calls and emails. Therefore, it is unreasonable to request he provide additional certification in the manner you describe.”

[9] I issued an Order refusing Ms Alterator’s application for an extension of time and dismissed her application on 12 November 2014.

[10] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(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] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 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]

[12] For exceptional circumstances to arise as contemplated by s394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[13] I considered the various criteria to which my attention is directed by s.394 (3) of the Act.

reason for the delay-s.394(3)(a)

[14] I have already outlined the reasons provided by Ms Alterator for the delay in lodgement of this application. I was not persuaded that Ms Alterator's difficulties were out of the ordinary, unusual or uncommon.

whether the person first became aware of the dismissal after it taken effect-s.394(3)(b)

[15] Ms Alterator became aware of the end of her relationship with the respondent on 24 July 2014.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[16] Ms Alterator disputed her dismissal by lodging this application.

prejudice to the employer-s.394(3)(d)

[17] I was satisfied that there would be no greater prejudice to the respondent caused by Ms Alterator's application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[18] Merit was a neutral issue in my consideration of this application.

fairness as between Ms Alterator and other persons in a similar position-S.394(3)(f)

[19] There was no issue of fairness in relation to any other person in a similar position.

[20] Having considered all of the matters to which my attention is directed by the Act I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application. Ms Alterator's circumstances were not out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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