Kim Davis v DHT Trading Pty Ltd T/A Dis n Dat
[2018] FWC 935
•12 FEBRUARY 2018
| [2018] FWC 935 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Kim Davis
v
DHT Trading Pty Ltd T/A Dis n Dat
(C2018/375)
| Commissioner Platt | ADELAIDE, 12 FEBRUARY 2018 |
Application to deal with contraventions involving dismissal – extension of time – application dismissed.
Ms Kim Davis has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that her employment was terminated by DHT Trading Pty Ltd T/A Dis n Dat (DHT) on 22 December 2017 in contravention of the general protections provisions of the Act.
This application was lodged on 23 January 2018.
Ms Davis’ application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:
“The reason I failed to lodge the application within the required time frame was because first of all I was unaware that there ‘was’ a time frame.
Secondly, due to the time of year, my first concern was getting the money that Judy owed me to get me through Christmas. This was debited to my account on the 27/12 which I assumed would ‘technically’ be the final date of employment because this was the date the money owing was resolved and paid.
The period since my dismissal until now, has been extremely stressful and just trying to get through the Christmas period financially, and now having to look for employment has been my priority rather than making my claim.
But you will see from your phone records that I have been in contact with the Fair Work ombudsman (sic) regarding this matter since approximately the 12th of December.”
DHT filed a form F8A Employer Response on 30 January 2018 which raised a jurisdictional objection on the basis that the application was lodged out of time and objected on the basis that Ms Davis executed a Deed of Settlement executed on 23 December 2017 which covered all disputes between them arising out of the employment and termination. This decision only deals with the extension of time issue.
On 1 February 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 12 February 2018. 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. Ms Davis and DHT were directed to provide an outline of argument by 8 February 2018.
Ms Davis provided a written submission which is summarised as follows:
· Ms Davis was verbally notified of the dismissal on 19 December 2017, the dismissal took effect on 22 December 2017.
· She was unaware that there was a 21 day time frame to lodge the application.
· She was completely shocked by the dismissal and was upset and stressed about not having a job to return to.
· She attended her GP the day after she was notified of her dismissal, her GP gave her a medical certificate as she was unwell and could not return to work.
· Due to the time of year, she was concerned about getting the money that she was owed from DHT.
· She is going to struggle to find new employment due to her qualifications.
· Her blood pressure and rheumatoid arthritis have taken a toll on her. She has booked in to see her rheumatologist on 23 February 2018 as her condition has worsened from the stress of the dismissal.
· In relation to the merits, she was asked by DHT to work on 23 and 24 December 2017. Ms Davis informed DHT that this would be at a higher rate of pay and that she would check online to find the rate. On 11 December 2017 she contacted the Fair Work Ombudsman who informed her of her entitlements and money that was owed. Ms Davis informed DHT of this on 19 December 2017 to which she was told that she was no longer required to work and that she would finish up on 22 December 2017.
DHT provided a written submission which is summarised as follows:
· Ms Davis was not dismissed. She voluntarily ceased working for DHT as of 20 December 2017.
· On 19 December 2017, Ms Davis approached DHT to discuss her pay and entitlements. DHT orally consented to paying Ms Davis her rightful entitlement and requested that she calculate the amount owed. DHT then discussed the issues regarding the performance of the company and explained that as the company is not performing well that it would like to reduce Ms Davis’ hours. Ms Davis then stated that she wants a separation certificate from DHT to enable her to apply for a new job with Centrelink.
· On 20 December 2017, Ms Davis returned to work and presented DHT with the calculation, DHT agreed to pay the amount subject to Ms Davis signing a settlement deed to finalise the matter. Ms Davis took the deed and returned an executed copy to DHT on 23 December 2017.
· This application has caused unfairness and disadvantage to DHT as it has incurred unnecessary legal costs in their attempt to settle the matter outside of the Court and Commission system, DHT has fulfilled its obligations under the deed, this application is an abuse of process as the parties have already settled the matter on 23 December 2017.
A hearing was conducted by way of telephone conference on 12 February 2018. A sound file record of the telephone conference was kept. Ms Davis represented herself and Ms Dorcia Chia of Vstar Lawyers and Consultants represented DHT. The respondent contact, Ms Jianqin Wang was supported by an Interpreter. Permission was granted pursuant to s.596(2) of the Act on the basis of efficiency and complexity.
Ms Davis’ reiterated her submissions and confirmed that her last day of employment was on 22 December 2017. Ms Davis accepted that she had signed a settlement agreement in the form submitted by DHT. Ms Davis said she was advised that the agreement would not prevent this application.
At the telephone conference, DHT reiterated the submissions filed and contended that there were no exceptional circumstances.
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 the date of dismissal was 22 December 2017. This general protections application by Ms Davis was made 11 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.”
Other than the lodgement of this application, Ms Davis took no action to contest the dismissal.
The reasons Ms Davis relies upon to support the existence of exceptional circumstances are that she was unaware of the time limit, being upset and stressed as a result of the dismissal, her focus on getting another job and suffering from blood pressure and rheumatoid arthritis. There was no evidence as to how the medical condition prevented the application being made.
Unfortunately the reasons for delay submitted cannot be properly characterised as ‘exceptional circumstances’.
Additionally it is not in dispute that on 22 December 2017 Ms Davis executed a Deed of Settlement which is expressed to settle all disputes arising from the employment and its termination. Clause 4 of the Deed of Settlement appears to act as a barrier to any claims, actions, suits or demands arising out of Ms Davis’ employment and its termination. Ms Davis states that she was advised by a non-lawyer that the Deed would not impact on an application such as this. Unfortunately that advice appears to be inconsistent with the comments Justice Besanko made in Australian Postal Corporation v Gorman and Fair Work Australia[2] which found that the existence of a settlement agreement could result in an application having no prospects of success.[3]
The applicant needs to provide a credible explanation for the entire period of the delay,[4] but has not done so.
There is no submission that the granting of an extension of time represents prejudice to DHT.
Consideration of fairness relative to other persons in similar positions is a neutral factor.
In terms of the merits of the application, the existence of the Deed of Settlement suggests that an application for any merit hearing to be dismissed pursuant to s.587(1)(c) of the Act, on the basis of ‘no prospects of success’ is very likely, such that I have regarded the merits as a factor which weighs against the extension of time issue.
Conclusion
For the reasons I have set out above, I am not satisfied that Ms Davis’ circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order[5] reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
Ms K.Davis the Applicant.
Ms D.Chia of Vstar Lawyers and Consultants on behalf of the Respondent.
Hearing (Conference) details:
2018.
Adelaide:
February 12.
<PR600355>
[1] [2011] FWAFB 975
[2] [2011] FCA 975
[3] [2011] FCA 975 at paragraph 24
[4] Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403
[5] PR600356
Printed by authority of the Commonwealth Government Printer
0
0
0