Karen Riley v Outside School Hours Care UT Pty Ltd T/A Outside School Care NT
[2017] FWC 5255
•11 OCTOBER 2017
| [2017] FWC 5255 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Karen Riley
v
Outside School Hours Care UT Pty Ltd T/A Outside School Care NT
(C2017/4470)
| Commissioner Platt | ADELAIDE, 11 OCTOBER 2017 |
Application to deal with contraventions involving dismissal – extension of time – application granted.
Mrs Karen Riley has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that her employment was terminated by Outside School Care UT Pty Ltd T/A Outside School Care NT (OSCNT) on 18 July 2017 in contravention of the general protections provisions of the Act.
The application was lodged on 12 August 2017.
OSCNT filed a F8A Employer Response on 12 September 2017 but did not identify the application as being lodged out of time.
On 7 September 2017, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 25 September 2017, an adjournment request was made by Mrs Riley and this date was amended to 10 October 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. Mrs Riley and OSCNT were directed to provide an outline of argument by 15 September 2017.
Mrs Riley provided a written submission summarised as follows:
· Mrs Riley emailed the application to [email protected] on 7 August 2017 at 6.49pm, 20 days after the date of dismissal. A screen shot of the email was provided.
· On 10 August 2017, Mrs Riley telephoned the Darwin Registry to arrange payment as she had not yet heard from the Commission. It was at this stage that she was advised that her application had not been received.
· On 10 August 2017 at 11.33am she resent the application to [email protected] and also attempted to email it to a Registry Officer’s email address at 11.56am. She telephoned the Darwin Registry and was advised that neither of the emails had been received.
· The application was made within time, the error with the transmission of the email rests with the Commission.
OSCNT filed a written submission summarised as follows:
· Mrs Riley did not take any steps to dispute the dismissal with OSCNT.
· The lateness of the application has caused OSCNT a disadvantage. Mrs Riley’s failure to respond promptly resulted in OSCNT considering the matter as closed, it would have sought earlier witness statements from staff members who worked with Mrs Riley.
A hearing was conducted by way of telephone conference on 10 October 2017. A sound file record of the telephone conference was kept. Mr Scott Riley represented Mrs Riley and Mr Terry White represented OSCNT.
The parties were advised that on 11 August 2017 at 9.35am, the Commission’s IT Support Team advised Commission staff that external emails sent to Commission email addresses were not being received into the mail system. This issue was identified as commencing from late evening on 10 August 2017.
On 7 September 2017, I requested the Commission’s IT team to conduct an investigation into emails received from Mrs Riley’s email address on 7 August 2017.
On 13 September 2017, the results of the investigation were forwarded to the parties. The results show that the Commission did not receive any emails from Mrs Riley on 7 August 2017. The first email sent from a Registry Officer to Mrs Riley was on 10 August 2017.
Mrs Riley’s representative reiterated the material contained in the submissions and provided a consolidated timeline of the events, the relevant portion being:
“1. 7th August (Sunday) - Original Application sent to Fair Work Commission at 6.49pm which was within the 21 day period.
2. 10th August (Thursday) - Telephoned FWC Darwin regarding payment. I was told by [a Registry Officer] that my application had not been received.
3. 10th August at 12.03am - Resent original application on to FWC.
4. 10th August at 12.26am - Resent original application to [a Registry Officer].
5. 10th August - telephoned [a Registry Officer] to see if the emails had been received but they had not. At that time [the Registry Officer] told me that the FWC were having trouble receiving emails and that the backlog would not be cleared for a few days if at all.
6. 12th August – resent original email to FWC at 10.35am
7. 12th August – resent original email to [a Registry Officer] at 10.34am
8. 12th August at 10.35am – I received an automatically generated email advising
“Your message entitled: F8 application has been accepted for delivery to the recipient's mailbox.”
9. 14th August at 9.09am - [a Registry Officer] emailed me on to advise application had finally been received.
10. 14th August at 1.50pm - Email from [a Registry Officer] requesting I try to send the original email so the correct original time stamp was on it.
11. 14th August at 7.29pm - I resent the original email to [a Registry Officer].
12. 14th August at 3.03pm - I received an email advising
“your documentation received electronically by the Fair Work Commission on 12th August 2017 is taken to have been lodged in accordance with FWC Rules 2013”.
13. 15th August - I paid the lodgement fee and received an email advising that my payment had been processed and I was allocated a reference number.
14. 15th August at 10.59am – Email from Fair Work Commission advising payment processed and number allocated for my application being C2017/4470.
OSCNT relied on the submissions filed and contended that there were no exceptional circumstances on the basis that:
· The application was not lodged within the 21 day period.
· OSCNT had suffered prejudice as it first became aware of the proceedings on 6 September 2017 and two potential witnesses had left the business in late August and early September 2017.
Section 366 of the Act relevantly states:
“Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
I find that Mrs Riley’s application was received by the Commission on 12 August 2017.
This general protections application by Mrs Riley 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.366(2) 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 accept that Mrs Riley attempted to lodge her application by email on 7 August 2017, which if received would have been within time.
I find that Mrs Riley sought to progress the application that she believed she had lodged by contacting the Darwin Registry by telephone on 10 August 2017 to pay the lodgement fee. Mrs Riley was then informed the application had not been received and attempted to re-send the application email on at least two occasions. These emails were not received, possibly due to an outage in the Commission email system.
The Commission’s electronic system records the following correspondence in relation to this matter:
· Two telephone records on 11 August 2017 at 15.27pm and 15.28pm from a Commission Registry Officer to a Commission IT team member.
· An instant message conversation between the Registry Officer and the IT team member on 11 August 2017 from 15.29pm-16:13pm where the Registry Officer is advised that no emails had been received from Mrs Riley’s email address.
· A file note entry on 14 August 2017 recording that the applicant had called the Darwin Registry on Wednesday 9 August, Thursday 10 August and Friday 11 August 2017 to confirm whether the application had been received.
I note that the properties of the F8 Application Word Document that Mrs Riley contends was attached to the original email sent on 7 August 2017 revealed that the application document was last modified on 7 August 2017 at 7.40pm and was created on 23 July 2017 at 5.45pm.
I accept the actions of Mrs Riley between 7 and 14 August 2017 constitutes action taken to dispute the dismissal, and that once Mrs Riley became aware that her email application had not been received by the Commission she actively focussed on ensuring the application was received and the required lodgement fee paid.
The occurrence of a Commission email outage during this period compounded the issue.
The applicant needs to provide a credible explanation for the entire period of the delay,[2] and has done so.
Whilst the delay in this matter is relatively short, OSCNT contend that it first became aware of the matter on 6 September 2017 and by that time two potential witnesses had left the business, thus causing prejudice. It became apparent during the hearing that Mr White was not aware of an email communication from the Commission sent to Ms White advising receipt of Mrs Riley’s application on 15 August 2017. Mr White did not dispute the letter had been received.
I find that prejudice is a neutral factor.
Consideration of fairness relative to other persons in similar positions is also a neutral factor.
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.
Conclusion
For the reasons I have set out above, I am satisfied that Mrs Riley’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and the application will accordingly be referred for conciliation. An Order[3] reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
Mr S.Riley on behalf of the Applicant.
Mr T.White on behalf of the Respondent.
Hearing (Conference) details:
2017.
Adelaide:
October 10.
[1] [2011] FWAFB 975
[2] Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403
[3] PR596718
Printed by authority of the Commonwealth Government Printer
<Price code C, PR596717>
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