Judy Waterman v Australian Home Ideas Pty Ltd T/A Home Ideas Centre

[2016] FWC 3640

[2016] FWC 3640

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Judy Waterman
v
Australian Home Ideas Pty Ltd T/A Home Ideas Centre
(U2016/6214)

COMMISSIONER PLATT ADELAIDE, 3 JUNE 2016

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

[1] Ms Waterman 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 Australian Home Ideas Pty Ltd T/A Home Ideas Centre (Home Ideas Centre) on 24 March 2016.

[1] Ms Waterman’s application was lodged on 15 April 2016, one day outside the 21 day time limit allowed for lodging an application. Ms Waterman did not recognise that it was made out of time and did not make a submission seeking an extension of time.

[2] On 24 April 2016, my Associate corresponded with both Ms Waterman and Home Ideas Centre and advised that the extension of time issue would be considered at a telephone conference on 25 May 2016. Substantial information about the extension of time issue was provided to the parties. Ms Waterman was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 11 May 2016. Home Ideas Centre was required to submit a Form F3 (Employer Response) and invited to make any submission relative to the extension of time issue by 18 May 2016.

[3] Both the Ms Waterman and Home Ideas Centre provided statements and detailed submissions.

[4] Ms Waterman appeared at the telephone conference and was represented by her partner Mr Trevor Williams. Home Ideas Centre was represented by Mr Blake and Ms Raimondo (of counsel) by consent. Permission to appear was granted under s.596 of the Act. A sound file record of the conference was kept.

[5] The portions of the Ms Waterman’s submissions relevant to the extension of time considerations are summarised as follows:

• Ms Waterman was advised by letter on 21 March 2016 that her role was to be made redundant and that alternative employment may be available.



• On 24 March 2016 Home Ideas Centre terminated Ms Waterman’s employment by letter. Ms Waterman became aware of the termination of her employment on 25 March 2015.



• Mr Williams resides with Ms Waterman and stated that they discussed the issues in respect of this matter daily or as required.



• On 30 March 2016 Mr Williams, on Ms Waterman’s behalf, contacted Home Ideas Centre by email in respect of the calculation of Ms Waterman’s entitlements. Mr Blake, on behalf of Home Ideas Centre, advised Mr Williams that he would review the matter and respond the following week.



• On 7 April 2016 Mr Williams again contacted Home Ideas Centre by email to follow up on the prior correspondence. Mr Blake responded and advised that Home Ideas Centre had reviewed the matter, adjusted the payments and had forwarded confirmation of this by mail to Ms Waterman.



• On 11 April 2016 Mr Williams emailed Mr Blake and confirmed receipt of the additional funds. Mr Williams then raised issues regarding the termination of Ms Waterman’s employment, namely, if the redundancy was genuine and if consultation had occurred.



• On 12 April 2016 Ms Waterman signed an Unfair Dismissal Application. Mr Williams posted the application by standard letter that day.



• Mr Williams states the delay was his responsibility.



• Mr Williams advised that he did not submit the application by email as it was his work account and he did not want to send an attachment using his work email address.

[6] The respondent’s position can be summarised as follows:

• The employment of Ms Waterman was terminated on 24 March 2016 and was a genuine redundancy within the meaning of s.389 of the Act.



• Mr Williams could have sent the application by email or express post but chose not to do so.



• Ms Waterman failed to provide an adequate explanation for the delay.



• Ms Waterman failed to demonstrate exceptional circumstances, within the meaning of s.394(3) of the Act, and the application should be rejected.

[7] Section 394 of the Act relevantly states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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] On the information before me, I am satisfied that the application was made 1 day 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 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.”

[9] Mr Williams submits that the reason for the delay was his choice to submit the application by regular post. Mr Williams was aware of the recent changes to the postal system and delivery times. Mr Williams stated that he did not submit the application by email as he did not want to use his employers’ email facilities and include an attachment. I note that all of Ms Waterman’s email correspondence between the parties was sent from Mr Williams’ work account. I also note that Mr Williams sent two attachments to my chambers on 23 May 2016 using his work account in complying with the directions issued on 26 May 2016. Mr Williams was the General Manager for his employer. I do not accept that the application could not have been sent by email. Mr Williams was aware of the time limit. It appears to me that Mr Williams chose to send the application by standard post in the knowledge (or reckless indifference) to the date it would be received by the Fair Work Commission. Ms Waterman and Mr Williams were in regular contact and I do not accept this as a case of representational error.

[10] Ms Waterman became aware of the termination of her employment, at the latest, one day after it took effect. Having raised the underpayment of her entitlements, her email of 7 April 2016 stated that she wanted to ‘finalise any dealings with Home Ideas Centre and move on….’ Apart from this application, she did not contest the basis of her dismissal until 11 April 2016 when she emailed Mr Blake.

[11] Having considered the material before me, I am not satisfied that Ms Waterman has established that the reason for the delay in this matter represented an exceptional circumstance.

[12] As to the merits of the application, the information before me is contested and does not enable me to form a definite conclusion. I have regarded the merits of the application as a neutral factor.

[13] Considerations of fairness relative to other persons in similar positions is not a relevant consideration in this matter.

[14] I have concluded that the material before me does not establish that Ms Waterman’s 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 (PR581234) giving effect to this decision will be issued.

COMMISSIONER

Appearances:

J Waterman and T Williams for the Applicant.

C Raimondo, counselrepresenting the Respondent.

Hearing details:

2016.

Adelaide:

May 25.

 1   [2011] FWAFB 975

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