Kim Ivonetz v Barrier Reef Hotel t/as LHG Pty Ltd Spirit Hotels

[2015] FWC 1649

[2015] FWC 1649

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Kim Ivonetz
v
Barrier Reef Hotel t/as LHG Pty Ltd Spirit Hotels
(U2014/15539)

DEPUTY PRESIDENT SAMS SYDNEY, 16 MARCH 2015

Application for relief from unfair dismissal - application made ‘out of time’ - serious misconduct - several breaches of ‘Code of Conduct’ - miscalculation of 21 day time period - delay owing to procuring additional information - no ‘exceptional circumstances’ - application dismissed.

[1] This decision arises from an application to the Fair Work Commission (the ‘Commission’) for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). Ms Kim Ivonetz (the ‘applicant’) was dismissed by Barrier Reef Hotel t/as LHG Pty Ltd Spirit Hotels (the ‘respondent’) on 6 November 2014, for alleged serious misconduct involving numerous breaches of the respondent’s Code of Conduct. The applicant lodged her unfair dismissal application on 28 November 2014. The Act mandates a 21 day time limit for initiating an application for an unfair dismissal remedy. The application was therefore lodged one day outside of the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for an Unfair Dismissal Remedy and the Form F3 Employer’s Response. The Commission has also considered the various documents attached to those Forms. On 9 December 2014, the Commission wrote to the applicant outlining the matters I am obliged to consider under s 394(3) of the Act, and asking her to provide a statement addressing those matters within 14 days. In response, the applicant provided a one page written statement on 16 December 2014. Having considered this material, I issued an order refusing an extension of time and dismissed the application on 9 February 2015. What follows are my reasons for doing so.

STATUTORY PROVISIONS AND PRINCIPLES

[3] The relevant legislative framework, governing the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘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.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, a Full Bench of the Commission 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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].’

[5] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing an unfair dismissal application. In other words, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application out of time; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia [2014] FWCFB 2288 succinctly described the Commission’s decision making process under s 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I turn now to each of the criteria set out under s 394(3) of the Act.

CONSIDERATION

Reasons for the delay (s 394(3)(a))

[6] In her written statement, the applicant explained that she had delayed filing her unfair dismissal application for several reasons. She set out her reasons as follows:

‘1. I was waiting on a pay slip of the final payout figures so i could ensure all the facts were available in reference to my long service leave. As i receive my pay monthly on the 15th of each month. The pay slip was received on 27nov 14

2. Researched the implications of an accusation of credit betting through Office of Liquor and Gaming and how this could effect my on going career .

3. i did not include the day of dismissal when calculating the time frame for submission. The application appears to have been received on day 22 not as i had calculated day 21.

I ask that this information be looked upon favourably and the application be allowed to proceed.’

[7] I am not satisfied that any of the reasons given by the applicant for the delay in lodging her unfair dismissal application, constitutes an ‘exceptional circumstance’, within the meaning of the Act. I will examine each of these reasons in turn.

[8] Waiting for her final pay slip does not constitute an ‘exceptional circumstance’. The applicant stated that she waited for her pay slip in order to ensure ‘all facts were available’ in relation to her long service leave entitlements. The 21 day time period for filing an unfair dismissal application does not commence from the time in which a dismissed employee has obtained information relating to their employment entitlements. I am perplexed as to why it would have been necessary to wait to receive confirmation of her long service leave entitlements, if she truly believed she had been unfairly dismissed. The fairness of her dismissal is not contingent upon her long service leave. It is a separate and distinct issue going to an employee’s statutory entitlements.

[9] Furthermore, and in a similar vein, I do not understand how the applicant’s research into ‘credit betting’ could be construed as an ‘exceptional circumstance’. Her knowledge of the implications of being accused of ‘credit betting’ does not affect the fairness of her dismissal and therefore, it does not alter the time she had in which to lodge her application. It is apparent from the applicant’s evidence that she delayed lodging her unfair dismissal application, because she did not entirely understand the ramifications of her dismissal for her future employment prospects. In any event, her research into ‘credit betting’ did not prevent her from filing an unfair dismissal application.

[10] The applicant’s reason relating to her miscalculation of the relevant 21 day time period, is clearly not an ‘exceptional circumstance’ within the meaning of the Act. In any event, if she had miscalculated the 21 days by not including the day of dismissal, the application would be two days late, not one. The applicant’s letter to the Commission illustrates that she was aware of the 21 day time period in which she had to file her application. It is curious that an applicant, who genuinely believes they have been unfairly dismissed, would delay filing their application until the very last minute.

[11] I am not satisfied that any of the above reasons, either singularly or cumulatively, are ‘exceptional’, within the meaning of the Act.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[12] The applicant acknowledged that she was aware of her dismissal on 6 November 2014 and that her dismissal took effect immediately from that date. This is a neutral factor in this case.

Any action taken by the person to dispute the dismissal (s 394(3)(c))

[13] The applicant did not specifically address this criterion. However, the applicant did not identify any alternative action taken by her to dispute her dismissal before lodging her application on 28 November 2014. An assessment of this criterion weighs against the grant of an extension of time.

Prejudice to the employer (s 394(3)(d))

[14] Given that the application was lodged one day outside of the statutory time limit, I do not consider that there is any significant prejudice to the employer, save for the usual prejudice of costs and time expended in defending the claim. This is a neutral factor in this case.

The merits of the application (s 394(3)(e))

[15] It is important for applicants to understand that a consideration of the merits of an application, at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis. In Kornicki v Telstra Network Technology Group P3168, a Full Bench of the Australian Industrial Relations Commission said:

‘The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.’

[16] The applicant accepted that she was dismissed for serious misconduct. Unsurprisingly, she denies any serious misconduct. The materials attached her unfair dismissal application disclosed that the applicant was dismissed for numerous reasons, including engaging in prohibited ‘credit betting’, misusing Company resources and allowing non-employees to operate within the business (her daughter and her partner). The applicant complained that the respondent had not provided her with adequate staff numbers and that she had been a manager for nearly ten years with an unblemished employment record. She believed her dismissal was due to her impending long service leave. I extract the applicant’s submissions in this respect below:

‘1/ Licensing Breaches:

Credit Betting I believe this to be grossly inappropriate interpretation of the context of credit betting. My signed acknowledgement of Coles Hotel Group What Is Credit Betting states see attached (1).

However this did not occur in this instance because the customer presented me with winning tickets and placed new bets at the same time. It is impossible for this to be considered Credit Betting as I did not offer a loan or credit to the customer as the winning tickets proceeds paid for the new bets.

I have been in the hospitality industry and Hotel Management for 25 years it’s my lively hood [sic] and the potential outcomes of being accused of credit betting are as follows.

1/ Loss of Career
2/ Loss of income
3/ Cancellation of all licences
4/ Conviction recorded

3b Employment

I was left to run a Hotel on my own which left me in a position to ensure BY LAW (Office Of Liquor And Gaming) that two people must be present to empty end of week Gaming Machines. Coles did not provide the staff for me to perform this duty.

3c Company Resources

As a Manager of nearly 10 years for Coles some element of common sense should provale [sic].

These issues are all accounted for and all comes back to having to run a hotel on my own there has never been a loss or theft in my 10 years with Coles and I’m Audited every Month for Safety and every 6 to 12 months on hotel operations. I was just audited recently and also given a pay rise and a $5000 bonus for meeting budget targets. The irony of this circumstance is for Coles to try and justify the unfair dismissal with inconsequential matters when my 10 years long service due in February 2015.

I believe Coles has no right to withhold my long service leave payout.’

[17] The evidence of the respondent demonstrated that it had imposed a formal disciplinary process upon the applicant and had formally warned her in September 2013 after she had earlier breached the respondent’s Code of Conduct. There is nothing to suggest that the respondent’s internal disciplinary procedures were biased or unfair or that the applicant was denied procedural fairness. The applicant was dismissed for serious misconduct relating to numerous breaches of the respondent’s Code of Conduct. She does not appear to deny breaching the respondent’s Code of Conduct, but rather attempted to either mitigate or explain away her actions. In any event, the reasons provided for the delay in filing her application, suggest to me that rather than the application being initiated on merit, it was lodged primarily due to her concerns she would lose her long service leave entitlements and her realisation of the impact her dismissal would have on her future employment prospects. In my view, a prima facie assessment of the material filed, suggests that the applicant’s prospects of success are negligible.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))
[18] The applicant did not address this criterion. The evidence suggests that there were no other persons in a similar position to that of the applicant. The applicant’s dismissal was a conventional summary dismissal for misconduct, based on allegations of a breach of the employer’s Code of Conduct. This factor is a neutral consideration in this case.

CONCLUSION

[19] Having considered all of the matters which the Commission is required to take into account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant the Commission granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. In my opinion, the circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 9 February 2015.

DEPUTY PRESIDENT

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