Joy Lawrence v Calvary Home Care Services Ltd T/A Calvary Community Care

[2015] FWC 5257

[2015] FWC 5257

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joy Lawrence
v
Calvary Home Care Services Ltd T/A Calvary Community Care
(U2015/8946)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 13 AUGUST 2015

Application for relief from unfair dismissal - extension of time granted.

[1] Mrs Lawrence 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 Calvary Home Care Services Ltd T/A Calvary Community Care (Calvary). The matter was considered at a telephone conference on 3 August 2015. Additional submissions were received from Calvary on 11 August 2015 and from Mrs Lawrence on 12 August 2015. This decision sets out my conclusion in this matter.

[2] Mrs Lawrence’s application was lodged on 1 July 2015. In that application she advised that her employment was terminated with effect from 3 June 2015. Mrs Lawrence asked that the following information be taken into account with regard to the late lodgement of the application:

“Here are the reasons for the delay in my application.

1.4.01] Confusion in the paperwork between Fairwork Australia Ombudsman and Fairwork Australia Commission;

1.4.02] Difficulty in accessing relevant information via the website;

1.4.03] It has also taken time to collate all the relevant information for my submission;

1.4.04] I did challenge Ms Taylor on the day I was notified of my dismissal. I challenged her to call the police as I was determined I was not going to leave the premises and the police would have been forced to physically remove me!

Nothing of that nature took place. 1

[3] On 10 July 2015 my Associate corresponded with both Mrs Lawrence and Calvary and advised that the extension of time issue would be considered through a telephone conference on 3 August 2015. Substantial information about the extension of time issue was provided to the parties. Mrs Lawrence was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 27 July 2015.

[4] Mrs Lawrence’s representative, Mr Williams acknowledged receipt of this correspondence and provided various documentation which he asserted supported the extension of time sought. This information substantially duplicated the material filed with the application and did not detail any other basis for the extension of time.

[5] The Employer’s Response to the application confirmed the correct name of the business. I have utilised the discretion available to me to amend the application accordingly. That response confirmed that Calvary opposed any extension of time and asserted that the circumstances did not support such an outcome.

[6] Mrs Lawrence participated in the telephone conference but was represented by Mr Williams as her unpaid agent. Mr Rozenburgs, of counsel sought permission to represent Calvary. That permission was refused in that I was not satisfied that a grant of permission was appropriate pursuant to s.596(2) of the FW Act. Mr Somu, the proprietor of Calvary, General Manager Human Resources represented Calvary in this conference. I note that a sound file record of this telephone conference was kept and a copy of this was provided to the parties. Despite not complying with my directions, Mrs Lawrence was given and utilised the opportunity to provide further information in support of the extension of time at this conference. I also sought advice from Mr Williams as the conference disclosed the extent to which the delay related to his actions or inaction. I have also taken into account the additional submissions provided by Calvary. Additionally, I have received further correspondence from Mr Williams. To the extent that this represents a complaint about my conduct of that conference, I have referred it to the President of the Fair Work Commission and also confirm that Mrs Lawrence has appeal rights under the FW Act.

[7] 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.”

[8] I have concluded that the termination of Mrs Lawrence’s employment took effect on 3 June 2015. Accordingly, I am satisfied that the application was made 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.”

[9] Mrs Lawrence and her representative, Mr Williams, who is a Justice of the Peace, both provided advice at this conference. Mrs Lawrence’s reasons for the delay are, firstly, that she was initially unaware of the 21 day time limit but that she asked Mr Williams to pursue an application shortly after she was dismissed. Mrs Lawrence advised that she regularly met with Mr Williams about the matter. While Mrs Lawrence advised that she never knew about the 21 day time limit, this is inconsistent with her signature under paragraph 1.4 of the application where she recorded her reasons for the late lodgement of the application. I am unable to determine just what action she took to expedite lodgement of the application. Mr Williams’ advice was that it was some time before he became aware of the 21 day time limit. Mr Williams advised he was too busy with his Justice of the Peace duties, that he was waiting for an Employment Separation Certificate, and that he was busy collecting information to support the application. He was also confused about whether the application should have been made to the Fair Work Commission (the FWC) or to the Fair Work Ombudsman (the FWO). In this respect I am not satisfied that this confusion is, or was the fault, of either the FWC or the FWO. Mr Williams also appears to rely on difficulties in accessing relevant information on the FWC Website. In this respect I am again not satisfied that the FWC website information can be said to be responsible for the delay. Simply put, each of the reasons for the delay, reflect Mr Williams’ incompetence in addressing this matter. Mr Williams may be a diligent Justice of the Peace but he has clearly failed as Mrs Lawrence’s representative in terms of the lodgement of this application. None of the reasons for the delay relied on by Mr Williams can be regarded as acceptable reasons for the delay.

[10] I have concluded that, fundamentally, the reason for the delay in the lodgement of the application is representative error on the part of Mr Williams. The long standing approach 3 adopted by the FWC and its predecessors establishes that representative error may be an acceptable reason for a delay insofar as it may not be fair to visit the error of a representative on the applicant. However, that approach requires that primary consideration must be given to the behaviour of the applicant to establish that an applicant took all appropriate steps to action the application and did not contribute to the delay. Whilst I am satisfied that Mrs Lawrence has established that she did not contribute to the delay, I am not satisfied that her actions expedited the lodgement of the application. Accordingly, the reason for the delay in this matter marginally favours an extension of time on the basis that it represented an exceptional circumstance.

[11] Mrs Lawrence was aware of the termination of her employment on the day on which it took effect. Apart from this application, I am not satisfied that she took any other action to dispute the termination of her employment. This factor does not favour an extension of time.

[12] I do not consider that an extension of time of this magnitude would prejudice Calvary but this, of itself, does not provide a basis for an extension of time.

[13] In terms of the merits of the application the limited information before me clearly does not favour an extension of time. Mrs Lawrence agrees that she was instructed to meet with Calvary management but that she decided she would not do so. The material before me indicates that Mrs Lawrence was given clear instructions and the opportunity to be represented. There is nothing before me that indicates that the termination of Mrs Lawrence’s employment was unfair so as to warrant an extension of time. In considering the limited information about the merits which is available to me, I have noted that this may also be infected by representative error.

[14] Considerations of fairness relative to other persons in similar positions do not provide any substantial guidance relative to the request for an extension of time.

[15] On very fine balance, I have concluded that the material before me establishes that Mrs Lawrence’s circumstances should be regarded as exceptional so as to warrant an extension of time because of the representational errors associated with lodgement of the application. I consider it is appropriate that I bring to Mrs Lawrence’s attention that the FW Act provides the capacity for cost to be awarded in circumstances where the FWC determines a party’s actions are unreasonable, vexatious or without reasonable cause. 4 Given my significant reservations about the merits of Mrs Lawrence’s application, it may be appropriate that she obtains urgent independent advice in this respect rather than relying on Mr Williams. The application will be referred for conciliation in accordance with this decision and an Order (PR570057) giving effect to this decision will be issued.

Appearances (by telephone):

R Williams as agent for Ms Lawrence

R Somu for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

August 3

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

 3   see Clark v Ringwood Private Hospital (1997) 74 IR 413

 4 see ss.400A and 611 of the Fair Work Act 2009

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