Julie Rethmann v Crawford & Company (Australia) Pty Ltd T/A Crawford Contractor Connection

[2014] FWC 8534

[2014] FWC 8534

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julie Rethmann
v
Crawford & Company (Australia) Pty Ltd T/A Crawford Contractor Connection
(U2014/12191)

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 Rethmann or and the respondent ended on 24 July 2014. Ms Rethmann lodged her application at the Fair Work Commission on 27 August 2014. Ms Rethmann’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 Rethmann in that application she said:

“Due to the date of my dismissal taking effect on the date I was advised (24 July 2014) this was very distressing and subsequently I became very ill and was unable to leave my bed for 2 weeks.

I then tried with my fellow co-workers also made redundant various avenues to obtain advice regarding this matter and we were finally advised by Legal Aid on Monday 25 August 2014 there was a case to present for Unfair Dismissal.”

[4] I wrote to Ms Rethmann on 11 September 2014 outlining the matters I was required to consider by the Act and asked her to provide a statement addressing these matters within 14 days. Ms Rethmann provided a statement on 24 September 14. Ms Rethmann’s response is set out below.

● “The reason for the delay is due to having been highly stressed and depressed over the sudden loss of employment. Subsequently this illness kept me bed bound for the first two weeks.

● Dismissal took effect o (sic) the same day as the notice of dismissal was advised, 24 July 2014.

● Not being aware one could actually dispute dismissals directly with one’s employer, together with my affected fellow co-workers, numerous calls were made to obtain advice and to seek assistance. Finally on 25 August 2015 (sic), confirmation was received with instructions on what action was to be taken to dispute the dismissal and this was acted upon immediately.

● Prejudice to the employer inclusive of delay - none foreseen.

● Merits of the application:

Each affected staff was verbally told that the redundancy was based on the individual’s performance, which a score card was used to determine which staff would be dismissed. Performance for the affected individuals was deemed not to be acceptable for them to be retained, however a sheet with other unsuited positions (not qualified for) was mentioned and kept to one side. The score card was not produced, nor was anyone able to discuss further this performance matter/issue with me.

I believe there may exist a conflict of interest, whereby the COO and the Acting HR Manager are one in the same.

I voiced my disappointment my performance was deemed unacceptable and pointed out that there had been no counselling/performance management, nor any deficiencies identified to enable rectification/improvement.

I believe the dismissal to be unfair due to the fact that it is a position which becomes redundant and not the individual person.

● Fairness between persons in a similar position - would seem equal and reasonable.”

[5] I wrote to Ms Richman in the following terms on 3 October 2014:

“You do not indicate in your correspondence of 24 September 2014 who it was that you sought advice from, and who it was who finally confirmed that you could file an application in the Fair Work Commission.

There is no medical evidence of your being stressed and depressed during the period following the termination of your employment. Did you consult a doctor? If so, whom?  Do you have any evidence of this consultation?  Do you have any certificates as to any incapacity to lodge an application?

Please respond within 10 days.”

[6] Ms Rethmann provided a medical certificate dated 20 October 2014. The certificate stated that Ms Rethmann had consulted Dr Arif on 6 August 2014 for stress arising from redundancy and, in his opinion, her mood was quite low.

[7] Ms Rethmann submitted that she did not obtain a certificate following her dismissal because she was no longer employed and there was no one to supply it to.

[8] The respondent's opposition to the extension of time was provided on 5 November 2014 and is set out below.

“The Requirements under section 394(3)

(a) The reason for the delay

14. In a letter addressed to Senior Deputy President Drake dated 24 September, 2014 (‘the Letter”), the Applicant states:

“The reason for the delay is due to having been highly stressed and depressed over the sudden loss of employment. Subsequently this illness kept me bed bound for the first two weeks.

Dismissal took effect on the same day as the notice of dismissal was advised, 24 July 2014.

Not being aware one could actually dispute dismissals directly with one’s employer, together with my affected fellow co-workers, numerous calls were made to obtain advice and to seek assistance. Finally on 25 August 2015 [sic], confirmation was received with instructions on what action was to be taken to dispute the dismissal and this was acted upon immediately”.

15. The Applicant has attached to the Letter, a letter from Dr Muhammad Arif dated 20 October, 2014. The letter from Dr Arif states:

“This is to certify that I have examined the above patient on 6 August 2014. She consulted me regarding stress due to redundancy. In my opinion her mood was quite low at the time of consultation on 6 August, 2014”.

16. The Respondent submits that the medical evidence provided to the Commission by the Applicant does not justify an extension of time being granted. The letter from Dr Arif does not explain the Applicant’s delay in lodging the Application. Furthermore, it took the Applicant a further 19 days after she consulted Dr Arif to file the Application.

(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."

[9] I dismissed Ms Rethmann’s application on 14 November 2014 1.

[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] The reasons Ms Rethmann provided for her delay in lodgement were ignorance of the law, difficulty in obtaining advice and a low mood and stress arising from the circumstances of the termination of employment. I was not persuaded that Ms Rethmann'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 Rethmann 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 Rethmann 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 Redmond'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 Rethmann 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 Rethmann's circumstances were not out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

 1   PR 557773

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