Kiraly Pugliese v Lindisfarne Nominees (WA) Pty Ltd T/A Lindisfarne Medical Group

[2017] FWC 2839

[2017] FWC 2839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kiraly Pugliese
v
Lindisfarne Nominees (WA) Pty Ltd T/A Lindisfarne Medical Group
(C2017/2448)

COMMISSIONER RYAN MELBOURNE, 2 JUNE 2017

Application to deal with contraventions involving dismissal - extension of time.

[1] On 8 May 2017 the Applicant filed in the Fair Work Commission (the Commission) a Form F8 – General protections application involving dismissal. The Applicant was dismissed from her employment with the Respondent on 11 January 2017. The application in this matter was filed in the Commission outside the 21 day time limit specified by s.366(1)(a). The Applicant has sought that the Commission grant her an extension of time in which to file her application. The Respondent opposes an extension of time being granted to the Applicant and refused to participate in conciliation until this jurisdictional objection had been determined.

[2] The matter was listed for hearing by telephone on 31 May 2017 to consider the extension of time issue and the Applicant and the Respondent were directed to file material in relation to the extension of time issue by 26 May 2017. The telephone hearing did not proceed as both the Applicant and the Respondent, who are self-represented, indicated their desire that the matter be determined on the papers.

Relevant Provisions of Act

[3] The Commission may allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.366(2) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time.

[4] Section 366(2) deals with extensions of time and provides as follows:

“(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.”

[5] It is appropriate to observe that s.366(2) sets out an exhaustive list of the matters that must be taken into account. The language of s.366(2) (and its unfair dismissal counterpart, s.394(3)) does not require or even permit the Commission to take into account “any other matters that the FWC considers relevant” which is a requirement in both s.387(h) and s.392(2)(g), nor does the language of s.366(2) (and its unfair dismissal counterpart, s.394(3)) require or even permit the Commission to “take into account all the circumstances of the case” which is a requirement in s.392(2).

Relevant Authority

[6] The relevant authority for considering whether exceptional circumstances exist is Nulty v Blue Star Group P/L 1 which 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] HCA 39; (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] HCA 45; (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) [1999] UKHL 4; [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.

[7] In the present matter s.366(2)(e) is not a relevant criteria as there are no other employees of the Respondent who are in a like position to the Applicant. However each of the other criterion in s.366(2) are relevant and must be taken into account. It is important to note that the criterion must only be taken into account for the sole purpose of determining whether exceptional circumstances are present. Only then would the Commission be permitted to exercise discretion to grant an extension of time. I approach the term “exceptional circumstances” having regard to the decision in Nulty v Blue Star Group.

The reason for the delay and Any action taken by the person to dispute the dismissal

[8] In the circumstances of the present matter it is appropriate to consider the criteria in s.366(2)(a) and (b) together.

[9] The Applicant was recruited by a recruitment company, ChoiceOne, to fill the position of Practice Nurse at Lindisfarne Medical Group, the trading name of the Respondent. The Applicant was at all times employed by the Respondent. However, the Respondent also used the recruitment company, ChoiceOne to dismiss the Applicant from her employment with the Respondent.

[10] After being dismissed the Applicant sought advice from LegalAid WA which advised her that as Lindisfarne was a Trust that it would be appropriate to commence an action before the Western Australian Industrial Relations Commission (WAIRC). The Applicant filed a Notice of claim of harsh, oppressive or unfair dismissal with the WAIRC on 3 February 2017, well within the 28 day time limit specified by the Industrial Relations Act 1979 (WA). In her application to the WAIRC the Applicant identified that she was employed by a trust and identified the employer as Lindisfarne Medical Group. In the proceedings before the WAIRC the Applicant represented herself and the Respondent was represented by Ms L Reed, the Respondent’s Practice Manager. Chief Commissioner Scott of the WAIRC issued a decision on 27 April 2017 in which the application before the WAIRC was dismissed on the basis that the Respondent was a constitutional corporation. 2 The reasons for decision of the Chief Commissioner relevantly contain the following:

“2. The applicant originally named the respondent as being ‘Dr Terry Pitsikis and Lucy Reed Lindisfarne Medical Group’ as her former employer.

3. However, information was provided that makes it clear that Lindisfarne Medical Group is a trading name and not the entity that employed the applicant. This is the case even though the job description provided to the applicant contained only that trading name. I formed the opinion that it was appropriate, in accordance with s 27(1)(l) and (m) to order that the name of the respondent be amended to ‘Lindisfarne Nominees (WA) Pty Ltd as trustee for Lindisfarne Trust trading as Lindisfarne Medical Group’ ([2017] WAIRC 00217).”

[11] Once the decision of the WAIRC was issued the Applicant then sought advice from the Employment Law Centre WA (ELCWA) who advised the Applicant that she should apply to the Fair Work Commission. The Applicant filed the application in the present matter on 8 May 2017, 11 days after the WAIRC issued its decision.

[12] I consider it reasonable for the Applicant to have awaited the determination of the jurisdictional issue by the WAIRC before seeking further advice about the filing of her current application in the Fair Work Commission. It does appear that the Applicant commenced her proceedings in the WAIRC on a reasonable basis, namely that she understood her employer to be the Lindisfarne Trust trading as Lindisfarne Medical Group Practice. As is clear from the decision of the Chief Commissioner of the WAIRC the proper identification of the legal nature of the Respondent was resolved on the basis of the material put to the WAIRC by the Respondent.

[13] I am satisfied that the Applicant has provided an acceptable reason for the delay in filing her application on 8 May 2017 and I am satisfied that the Applicant took reasonable action to dispute her dismissal before filing the application in the present matter.

[14] Each of these two criterion weighs strongly in favour of a finding that exceptional circumstances exist in the present matter.

Prejudice to the employer (including prejudice caused by the delay)

[15] The Respondent claims that it would suffer prejudice if the application to extend time is granted. It submitted that it had already been put to the cost and inconvenience of defending the WAIRC application.

[16] I am satisfied that there would be some prejudice to the Respondent if an extension of time was granted. This criterion weighs against a finding of exceptional circumstances.

The merits of the application

[17] As is often the case neither the Applicant nor the Respondent have addressed the merits of the Applicant’s case in any detailed manner and it is not appropriate for the Commission to embark on a detailed consideration of the substantive case. 3 In the present matter this criteria neither weighs in favour of or against a finding as to the existence of exceptional circumstances.

Conclusion

[18] Having taken into account each of the criterion in s.366(2) which are relevant the Commission is satisfied that there are any exceptional circumstances in the present matter which would enable the Commission to consider exercising its discretion to grant an extension of time to the Applicant to file her application on 8 May 2017. The Commission considers that it should exercise its discretion to grant an extension of time to the Applicant and the Commission allows the Applicant to file her application on 8 May 2017.

[19] As the Application in this matter has been filed within the further time allowed by the Commission the application will now be dealt with pursuant to s.368, by holding a conference of the parties.

[20] An order extending time in this matter will issue together with this decision.

COMMISSIONER

 1   [2011] FWAFB 975.

 2   [2017] WAIRC 236.

 3   Kyvelos v Champion Socks Pty Ltd Print T2421 [14].

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