Joanne Watts v Neami Limited

[2015] FWC 8689

[2015] FWC 8689

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joanne Watts
v
Neami Limited
(U2015/16343)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 17 DECEMBER 2015

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

[1] Ms Watts 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, what she described as “Neami National”. At a telephone conference convened on 17 December 2015 I confirmed that the employer was Neami Limited (Neami) and utilised the discretion in s.586 to amend the application accordingly. In this conference 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 Watts’ application was lodged on 27 November 2015. In that application Ms Watts advised her employment was terminated with effect from 19 October 2015. In her application, Ms Watts provided the following explanation for the delay in lodging the application:

“I commenced annual leave 19/10/15 – last day at work 18/10. I returned from holidays 6/11/15 which is the date that I received the notification in writing.” 1

[3] On 2 December 2015 my Associate corresponded with both Ms Watts and Neami and advised that the extension of time issue would be considered through a telephone conference on 17 December 2015. Substantial information about the extension of time issue was provided to the parties. Ms Watts was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 10 December 2015.

[4] Despite a further request to this effect, and a telephone discussion with my Associate, on 16 December 2015, no further information was received from Ms Watts.

[5] It is also appropriate that I note that, in her application Ms Watts advised that Mr Siow, of counsel was her representative. On 2 December 2015 Mr Siow confirmed that he had not been engaged to act for Ms Watts.

[6] The Employer’s Response to the application advised that the termination of Ms Watts’ employment took effect on 20 October 2015 and attached the termination of employment advice which confirmed this. This Employer’s Response also confirmed that Neami opposed the extension of time and detailed the steps that had been taken to advise Ms Watts of the termination of her employment on and around 20 October 2015. Neami asserted that, as Ms Watts had taken steps to inquire about when she would receive her termination pay and an Employment Separation Certificate in late October and early November it was clear that she was aware of the termination of her employment more than 21 days before she lodged this application. Neami asserted that the termination of Ms Watts’ employment followed an extensive performance management process which had been applied in a fair and reasonable manner.

[7] Ms Watts participated in the telephone conference. Ms Robinson sought permission to represent Neami. That permission was refused on the basis that I was not satisfied that the requirements of s.596(2) were met in this matter. Ms Eden, Ms Ginn and Mr Oliver appeared for Neami. 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. I also note that, in the course of the conference I expressed some reservations about Ms Watts’ credibility in that she had provided inconsistent advice to my Associate on 16 December 2015 to that which she had provided at the conference.

[8] 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.”

[9] On the information before me I have concluded that the termination of Ms Watts’ employment took effect on 20 October 2015. Accordingly, I am satisfied that the application was made some seven 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 2 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.”

[10] Ms Watts agrees that she become aware of the termination of her employment on 20 October 2015. She advised that she became aware of the termination of her employment through a telephone message to that effect. She then sought advice from the Fair Work Commission about whether she could be advised about her dismissal by telephone. She advised that she was “down and upset” and that the combination of these factors led to the delay in the lodgement of this application. I am not satisfied that a reasonable explanation for the delay has been provided in these circumstances or that there is anything exceptional associated with the reason for this delay.

[11] Ms Watts became aware of the termination of her employment soon after it had taken effect.

[12] I do not consider that the delay in this matter represents a significant prejudice to the employer. However, this cannot then form the basis for an extension of time.

[13] In terms of the merits of the application, the information before me does not indicate anything of the nature of an exceptional circumstance, nor disclose deficiencies in the performance management process adopted by Neami. I note that, even if I had regarded the merits of the application as a neutral factor, no basis to support an exceptional circumstance finding has been made out.

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

[15] Accordingly, I have concluded that the material before me does not establish that Ms Watts’ 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 (PR575100) giving effect to this decision will be issued.

Appearances (by telephone):

J Watts on her own behalf

S Eden for the respondent

Hearing (Conference) details:

2015.

Adelaide:

December 17.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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