Kristie Pratt v Bendigo Stadium Ltd T/A Bendigo Stadium Ltd (BSL)

[2014] FWC 5437

[2014] FWC 5437

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kristie Pratt
v
Bendigo Stadium Ltd T/A Bendigo Stadium Ltd (BSL)
(U2014/7642)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 29 AUGUST 2014

Application for relief from unfair dismissal - jurisdiction - extension of time

[1] On 29 May 2014, Ms Kristie Pratt made an application for an unfair dismissal remedy with respect to her dismissal by the Bendigo Stadium Ltd T/A Bendigo Stadium Ltd (BSL) on 6 May 2014.

[2] On 7 July 2014, the employer objected to the extension of time application submitted by the applicant. The matter was listed for a directions hearing on 24 July 2014. Directions were subsequently issued by agreement requiring the parties to file and serve submissions on the extension of time application, and providing that the matter would be determined ‘on the basis of the materials lodged with the Fair Work Commission’, on the basis of written materials alone. I have taken account of all materials put to me.

[3] Section 394 provides:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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 applicant asks that I allow a further period for the application to be made on the basis that there are ‘exceptional circumstances’.

Exceptional Circumstances

[5] In Nulty v. Blue Star Group Pty Ltd 1a Full Bench of this tribunal considered the term ‘exceptional circumstances’ in extension of time applications:

‘[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.’

(a) Reason for the delay

[6] The sequence of events is that the applicant’s employment was terminated on 6 May 2014, she went on a scheduled holiday to Adelaide on 7 May 2014, returned to Bendigo on 16 May, the application dated 27 May was posted, and was received by the Commission on 29 May. The 21 day period in which an application may be made expired on 28 May.

[7] The applicant raises a number of issues to justify an extension of time and her conduct, including that:

• the application was out of time for one day;



• the application was posted from a rural area which takes longer than when posted in a city;



• she has a medical condition which impaired her performance;



• she was unaware of the 21 day time period;



• her holiday was already planned



• she was taken by surprise by the termination;



• she was unaware that the claim was made under federal law and that she did not have to be home to file it;



• she was not aware that it could be filed online.

[8] The applicant explained that she had a ‘short holiday in Adelaide already planned’ for 7 May which she took, and did not return to Bendigo until Friday 16 May. She said that she was ‘unaware’ that she could take unfair dismissal proceedings until family members mentioned this to her. When she returned to Bendigo on 16 May she went in to the Fair Work Office and ‘found out my rights in the given situation’. It appears that she posted her application rather than making it online. She submits that her medical condition impaired her abilities when filling out the application, and provided a medical certificate which described her condition as one of depression and anxiety, and said that she benefits from counselling, although she is no risk to herself or others at this stage. This suggests that she has less than usual abilities unless aided by others. She submits that she ‘struggled understanding how to fill out the Unfair Dismissal Application, as I have no strong support base here in Bendigo it made it hard for me to be able to obtain help.’  2

[9] She further submits that she was not aware that she would be terminated, and was ‘incredibly upset and did not think to pack her documentation to take to Adelaide’. She submits that she was not aware that this was federal law, and that she did not have to wait until she returned to Victoria to make her application. She only became aware that she could file a claim online when she returned to Bendigo and attended the Fair Work Ombudsman Office. She submits that further medical material ‘could be furnished on request’. She submits that the application is one day out of time, given s.6 of the Acts Interpretation Act 1901 3. The employer does not take issue with this, and I accept this submission of the applicant. Even if it is not correct, the application is only a very short period out of time.

[10] She further submits that she did not account for the time delay for mailing from a rural location to Melbourne City, and that this is a bona fide attempt to submit within time, as in Johnson v. Joy Manufacturing Co Ptd Ltd 4.

[11] The employer put brief submissions that Ms.Pratt had ‘ample time to submit an application’ 5. It submitted that her application could have been made ‘online and via phone for submissions locally and interstate’, and that being interstate is no satisfactory explanation for the delay. The applicant had provided no satisfactory explanation for the delay. It submits that she had support of family to fill out the forms, and there is no ‘correlation’ between the medical certificate ‘referencing learning difficulties or capabilities to complete forms’6.

[12] Various explanations were given for the very short delay including a medical condition which appears to have led to less than usual abilities, legitimate travel plans which were in existence at the time of termination, no expectation of a sudden termination so that it was a surprise, and posting by mail which ordinarily might reach the destination but for the rural location. Having regard to for example Johnson v. Joy Manufacturing Co Ptd Ltd 7these factors constitute a persuasive explanation in the circumstances. As the applicant submitted:

‘The applicant ... mailed it within the time frame allowed but did not account for the time delay for mailing from a rural location to Melbourne City - we submit this was a bona fide attempt to submit within time (as in Johnson v. Joy Manufacturing Co Ptd Ltd ...)’ 8

[13] The application is one day out of time. A recent Full Bench commented in Luciano Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations:

‘[21] The test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances. The longer the delay in making the application the more difficult it will generally be to get over that hurdle’ 9.

[14] Each case has to be considered on its specific merits, and the factors outlined above were not present in the recent matter in which a one day out of time application for extension of time was rejected in a quite proper exercise of discretion 10.

(b) Whether the person first became aware of the dismissal after it had taken effect

[15] The applicant states that she was aware of the dismissal at the ‘Performance Management Meeting’ when she was dismissed 11.

(c) any action taken to dispute the dismissal

[16] The applicant submits that ‘she had no opportunity to take any action’ including because she was not advised that she could bring a support person, and she was not given the opportunity to respond to the dismissal or provide any explanation as to the event that was ‘purportedly the reason for her dismissal’. While she could have taken some action I accept that the sudden nature of the dismissal was a surprise, leading to some consideration before she acted to dispute the dismissal. I will not repeat the observations about her medical condition set out above.

(d) prejudice to the employer

[17] No prejudice to the employer is claimed, and given the shortness of time, none appears to exist on the material before me.

(e) the merits of the application

[18] Both sides filed material on this. On the material before me this factor is neutral. Both sides have a case to be determined on the evidence and law.

(f) Fairness as between the person and other persons

[19] The shortness of time and the explanations for the delay provided above make this matter of a somewhat different nature to most applications.

Conclusion

[20] The conjunction of circumstances outlined above is unusual and in my view exceptional. I have decided to order an extension of time. An order is contained in PR554188.

DEPUTY PRESIDENT

<Price code C, PR554117>

 1   [2011] FWAFB 975

 2   Applicant ‘Explanation for Delay of Submission of Application’, 29 June 2014.

 3   Applicant Submissions, 31 July 2014, paragraphs 1-4

 4   Applicant email, 7 August 2014; [2010] FWA 1394

 5   Respondent Submission of 4 August 2014

 6   Respondent’s Submission 7 July 2014

 7   Applicant email, 7 August 2014; [2010] FWA 1394

 8   Applicant email 7 August 2014

 9   [2014] FWCFB 2288

 10   [2014] FWC 1744

 11   Applicant’s Submission, 31 July 2014, paragraph 4(b),(c)

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