Jennifer Scholz v The Paraplegic & Quadriplegic Association of South Australia Inc T/A HomeCare+
[2017] FWC 4031
•1 AUGUST 2017
| [2017] FWC 4031 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jennifer Scholz
v
The Paraplegic & Quadriplegic Association of South Australia Inc T/A HomeCare+
(U2017/6564)
| COMMISSIONER PLATT | ADELAIDE, 1 AUGUST 2017 |
Application for an unfair dismissal remedy – extension of time – application dismissed.
Ms Jennifer Scholz has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with The Paraplegic and Quadriplegic Association of South Australia Inc T/A Homecare+ (Homecare) which her Form F2 Unfair Dismissal application advised took effect on 29 May 2017.
The application was lodged on 20 June 2017.
Ms Scholz’s application did not recognise that it was made beyond 21 days from the date of dismissal.
On 28 June 2017, Homecare lodged a Form F3 Employer Response which indicated that the dismissal occurred on 26 May 2017 but did not raise any jurisdictional objection.
On 12 July 2017, my Associate corresponded with Ms Scholz and Homecare and advised that the extension of time issue would be considered at a telephone conference on 1 August 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Ms Scholz was directed to provide a statement concerning the extension of time and any documents to be relied upon by 21 July 2017. Homecare was invited to file any material in reply by 28 July 2017.
Ms Scholz provided a written submission which is summarised as follows:
· After the dismissal, she was waiting to receive copies of documents including timesheet rosters in relation to the dismissal and audio/visual transcripts from the investigation.
· Ms Scholz submissions were not filed in the time frame provided by the Commission’s directions. This was explained by her being interstate with no internet access.
Homecare provided documentation which is relevantly summarised as follows:
· Ms Scholz was interviewed in relation to a misconduct matter on 25 May 2017.
· The interview concluded on 26 May 2017 during which time Ms Scholz was advised that her employment would be terminated immediately due to misconduct.
· The dismissal was confirmed in writing by letter dated 29 May 2017.
· No exceptional circumstances exist such as to extend the time for lodgement.
· No submissions were made as to prejudice to the employer or merits.
A hearing was conducted by way of telephone conference on 1 August 2017. A sound file record of the telephone conference was kept. Ms Scholz represented herself and Ms Elizabeth Frankish represented Homecare.
Ms Scholz confirmed that she was dismissed on 26 May 2017 and submitted the following reasons for the late application:
· She was waiting for material to be provided by Homecare.
· She was not sure if she was going to go through with lodging an unfair dismissal application.
· She received the separation certificate from Homecare on 8 June 2017.
· She commenced filling out the Form F2 Unfair Dismissal Application on 8 June and completed it on 11 June 2017.
· She posted the application in Port Lincoln, through regular post, on 11 June 2017.
Ms Frankish contended the facts did not disclose ‘exceptional circumstances’.
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.”
I find that Ms Scholz was dismissed on 26 May 2017 and was aware of that fact on the day.
This unfair dismissal application by Ms Scholz was made 4 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
I have considered the provisions of s.394(3) of the Act 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.”
I make the following findings.
Ms Scholz took no action to contest the dismissal other than the lodgement of her application.
It appears that Ms Scholz prevaricated after the dismissal and did not decide to make an application until 8 June 2017.
Unfortunately, Ms Scholz did not consider the delay in posting the application from Port Lincoln to Adelaide, delays arising from the normal postal service is not an exceptional circumstance.
The applicant needs to provide a credible explanation for the entire period of the delay,[2] but has not done so.
There is no submission that the granting of an extension of time represents prejudice to Homecare.
In terms of the merits of the application, there is insufficient evidence before me to make an assessment of the competing positions and, accordingly, I have regarded the merits as a neutral factor.
Consideration of fairness relative to other persons in similar positions is a neutral factor.
Conclusion
For the reasons I have set out above, I am not satisfied that Ms Scholz’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed.
An Order[3] reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
Ms J.Scholz, the Applicant.
Ms E.Frankish on behalf of the Respondent.
Hearing (Conference) details:
2017.
Adelaide:
1 August.
[1] [2011] FWAFB 975
[2] Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403
[3] PR595021
Printed by authority of the Commonwealth Government Printer
<Price code A, PR595020>
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