Kerry Spence v Northwest Properties Ltd

[2016] FWC 5045

[2016] FWC 5045

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kerry Spence
v
Northwest Properties Ltd
(U2016/6946)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 26 JULY 2016

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

[1] Ms Spence 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 Northwest Properties Ltd (Administrator Appointed) (Northwest Properties). I note that whilst the application was made relative to Northwest Properties, that company was in administration prior to the termination of Ms Spence’s employment. In a telephone conference convened on 26 July 2016 I advised the parties that I had concluded that Ms Spence’s application was lodged outside of the statutory time limit and that I was not satisfied that this time limit should be extended. These reasons for decision set out the reasons for my conclusion.

[2] Ms Spence’s application was lodged on 16 May 2016. In that application she confirmed that the termination of her employment took effect on 22 April 2016 and that she was advised of this on that same day. Ms Spence asked that the Commission take the following information into account in considering an extension of time:

“My final work day was Friday 22nd April (Monday was a public holiday) my final pay was received on the Wednesday 27th April, I was only paid the days I had worked. I then was lodging employment applications and registering with job agencies.

In the past 2 weeks I had been trying to make contact with “fairwork” for advice I had been on hold for very long periods. I requested a call back which resulted in a text message advising to call the numbers I had previously called. I called the following day only to be on hold for 20 mins advised once again to leave a message which I did. Finally I was able to speak to someone today who direct me to the Fairwork commission who in turn direct me to the FWC website and to download the “Bench Mark” booklet 209 pages. I was disconnected, called back and was directed to this information. I was also advised to call the Employment Law Centre 9227 0111, which I did only to be advised by an automated voice there was no-one there to assist me.” 1 (sic)

[3] Northwest Properties objected to the application on the basis that it asserted that it was a small business and the termination of Ms Spence’s employment was consistent with the Small Business Fair Dismissal Code. Further, that the termination of Ms Spence’s employment was a case of genuine redundancy so that it could not be unfair. Thirdly Northwest Properties advised that, as it was in administration, Ms Spence would need to have the consent of the Administrator or the permission of the Court in order to pursue her claim.

[4] The application was referred to me on 7 July 2016. On 12 July 2016 I convened a directions conference and advised the parties that I would initially consider the extension of time issue. Ms Spence was directed to provide material in support of her position relative to both the lodgement time and any extension of that time by 19 July 2016.

[5] Ms Spence did not comply with that direction. After being contacted by my Associate, she provided limited information which was primarily directed to the merits of her application.

[6] Notwithstanding this, Ms Spence participated in the telephone conference on 26 July 2016. Ms Ponton, of Ferrier Hodson also participated in the conference as the Northwest Properties Administrator. A sound file record of the conference was kept.

[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] There is no dispute that Northwest Properties advised Ms Spence on 22 April 2016 that the termination of her employment took effect on that day. Consequently, the application was made some 3 days outside of the 21 day time limit and 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 Ltd² 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] Ms Spence identified three reasons for the delay. Firstly she advised that she was unaware of the 21 day time limit until she finally obtained information from the Fair Work Commission. A lack of awareness of this time limit cannot be regarded as an exceptional circumstance.

[10] Secondly, Ms Spence advised that after receiving her pay from Northwest Properties on 27 April 2016, she commenced looking for other jobs. She advised that, commencing in early May 2016, she consistently tried to contact the FWC but was unable to make telephone contact until shortly before 16 May 2016. She advised that she was variously left on hold or told that she had telephoned the wrong number and that she had tried to telephone the FWC many times. In this respect, it may be that Ms Spence had some difficulties accessing the FWC but I am not satisfied that this represents an exceptional circumstance or that it adequately explains the delay in lodging the application. The information provided to me by Ms Spence seems to suggest that she tried to telephone the FWC every few days and that she did not explore other information resources to obtain information.

[11] Thirdly, Ms Spence confirmed that there were some days when she did not seek to pursue the matter as she was distressed over the termination of her employment. I do not consider this to represent an exceptional circumstance.

[12] Having taken the entirety of the time since 22 April 2016 into account, I am not satisfied that Ms Spence has established a credible reason for the delay or that her reasons for the delay can be regarded as meeting the exceptional circumstance requirements necessary for an extension of time.

[13] In terms of s.394(3)(b), Ms Spence was aware that the termination of her employment took effect on 22 April 2016, on that day.

[14] Ms Spence agrees that, apart from the late lodgement of this application, she did not take any other action to dispute the termination of her employment.

[15] I doubt that an extension of time of this magnitude would prejudice Northwest Properties but I have not founded my decision in this matter on that premise.

[16] In terms of the merits of the application, the information before me does not enable a definite conclusion. Consequently, I have regarded the merits of the application as a neutral factor relative to the extension of time.

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

[18] I have concluded that the material before me does not establish that Ms Spence’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 (PR583335) giving effect to this decision will be issued.

Appearances (by telephone):

K Spence on her own behalf.

H Ponton for the respondent.

Hearing (Conference) details:

2016.

Adelaide:

July 2016.

 1   Form F2, para 1.4

2 [2011] FWAFB 975

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<Price code C, PR583334>