Kulwant Kaur v Krispy Kreme Australia Pty Ltd T/A Krispy Kreme Australia Pty Ltd
[2018] FWC 1650
•21 MARCH 2018
| [2018] FWC 1650 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Kulwant Kaur
v
Krispy Kreme Australia Pty Ltd T/A Krispy Kreme Australia Pty Ltd
(C2018/776)
COMMISSIONER PLATT | ADELAIDE, 21 MARCH 2018 |
Application to deal with contraventions involving dismissal – extension of time – application dismissed.
Summary
[1] Ms Kaur has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that her employment was terminated by Krispy Kreme Australia Pty Ltd T/A Krispy Kreme Australia Pty Ltd (Krispy Kreme) on 13 January 2017 in contravention of the general protections provisions of the Act.
[2] This application was lodged on 15 February 2018.
[3] Ms Kaur’s application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:
“I left the job in mental stress and it was not intentional so I have been sick and seeing doctors so I am providing my medical certificates for delay evidence. Also I have been contacting employer about my job and ombudsman.”
[4] Krispy Kreme filed a form F8A Employer Response on 1 March 2018 which indicated that Ms Kaur resigned on 8 January 2017 and raised the jurisdictional objections that the application was lodged out of time, the application lacked merit and that Ms Kaur was not dismissed. This decision only deals with the extension of time issue.
[5] On 5 March 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 19 March 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 Kaur and Krispy Kreme were directed to provide an outline of argument by 12 March 2018.
Submissions
[6] Ms Kaur provided a written submission which is summarised as follows:
• On 13 January 2017, Ms Kaur was forced to resign due to mental illness.
• The dismissal took effect on 17 January 2017.
• On 16 January 2017, she believed she should not have left her job and therefore sent a message to Krispy Kreme in relation to her availability to which she was advised that she had been terminated.
• On 1 February 2017, she sent an email to Krispy Kreme in relation to the dismissal and re-employment.
• On 3 February 2017, Krispy Kreme advised Ms Kaur that there were no roles available.
• On 27 February 2017, Krispy Kreme sent Ms Kaur an email in relation to her unsuccessful job application.
• On 5 June 2017, Ms Kaur corresponded with the Fair Work Ombudsman in relation to the dismissal.
• On 6 June 2017, Ms Kaur emailed Krispy Kreme in relation to the dismissal. Ms Parks responded on the same day advising that there were no jobs available and asserted that Ms Kaur had resigned.
• On 7 June 2017, Ms Kaur emailed Ms Parks in relation to sick leave entitlements for a permanent employee. Ms Parks responded to the inquiry on the same day.
• On 27 June 2017, Ms Kaur and Ms Parks exchanged email correspondence in relation to the job applications for Liverpool and Mascot. The correspondence includes an offer of settlement in relation to Fair Work Commission proceedings before Commissioner Cambridge.
• On 29 June 2017, Ms Kaur communicated with the Fair Work Ombudsman in relation to her entitlements.
• On 22 October 2017, Dr Leones issued a medical certificate indicating that Ms Kaur is suffering from a mental illness which she has been treated for since 27 January 2017 and that she would be unfit to attend her court case until 21 December 2017.
• On 24 November 2017, a medical certificate is issued stating that in the opinion of Dr Leones, Ms Kaur is fit for a court hearing from 24 November 2017.
[7] Krispy Kreme provided a written submission which is summarised as follows:
• Ms Kaur voluntarily resigned on 8 January 2017. She was rostered to work on 8, 12, 13, 14 and 15 January 2017 but did not attend.
• The resignation was finalised and processed on 17 January 2018.
• On or around 1 February 2017, Ms Kaur asked to be reinstated.
• During 2017, Ms Kaur made several unsuccessful applications for employment with Krispy Kreme.
• On 9 June 2017, Ms Kaur made a s.372 general protections application not involving dismissal.
• On 23 June 2017, the Commission conducted a conference in relation to the s.372 general protections application not involving dismissal lodged by Ms Kaur.
• On 27 November 2017, Ms Kaur made a general protections application direct to the Federal Court.
• On 23 February 2018, Ms Kaur withdrew the Federal Court application.
• Ms Kaur has failed to seek legal advice in relation to the out of time application, despite being advised by Commissioner Cambridge and Smith J of the Federal Court to seek legal advice. Persons in a like situation would have sought legal advice.1
[8] A hearing was conducted by way of telephone conference on 19 March 2018. A sound file record of the telephone conference was kept. Ms Kaur represented herself and Ms Maeve Doyle of Nexus Lawyers represented Krispy Kreme. Permission was granted pursuant to s.596(2)(a) of the Act.
[9] Ms Kaur reiterated her written submission and advised that her illness had prevented her from lodging her application. Ms Kaur accepted that on 24 November 2017 her doctor had certified that she was fit to participate in a court hearing. Ms Kaur agreed that she had filed a Federal Court application on 27 November 2017. Ms Kaur was unable to satisfactorily explain why she could not have filed this application on or after 24 November 2017.
[10] At the hearing Ms Kaur advised that she had a medical certificate dated 21 February 2018. Ms Kaur was granted permission to supply that document after the hearing. The document is a Centrelink medical certificate, which states that Ms Kaur was suffering from a medical condition and would be unfit for work or study between 21 February 2018 and 21 May 2018. This period occurred after the claim was lodged.
[11] Ms Kaur also supplied a letter from Dr Sharmin Kazi, Psychiatry Registrar, dated 23 February 2018 written to support an application for a disability support pension which indicated that Mr Kaur was first diagnosed with a mental illness in 1995, she had suffered many relapses and that her condition would be unlikely to improve in the next two years. The letter indicated Ms Kaur would not be able to engage in employment which exceeded 15 hours per week for the next two years.
[12] At the telephone conference, Krispy Kreme relied on the submissions filed and contended that there were no exceptional circumstances on the basis that:
• Ms Kaur was able to participate in proceedings before Commissioner Cambridge on 23 June 2017 and lodged an application in the Federal Court on 27 November 2017 which would indicate her competence to lodge a claim.
• Ms Kaur was medically fit post 24 November 2017.
• Ms Kaur had not explained why she did not lodge her claim earlier.
• No exceptional circumstances existed.
[13] Krispy Kreme also provided a written submission in response to the additional medical information provided by Ms Kaur which contended that the information did not explain why the application was not made between 24 November 2017 and 15 February 2018.
Applicable Law
[14] 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.”
[15] 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 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.”
Consideration
[16] There is no dispute that Ms Kaur’s employment ceased on 17 January 2017. This general protections application by Ms Kaur was made 394 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
[17] Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
The reason for the delay
[18] Ms Kaur contends that initially she sought re-employment with Krispy Kreme in another role, that she sought assistance from the Fair Work Ombudsman and that her illness prevented her from making a claim.
[19] Ms Kaur submitted medical evidence which indicated that she was suffering from a mental illness from 21 January 2017 to (initially) 31 December 2017. On 24 November 2017, Ms Kaur’s doctor provided a certificate that she could participate in a court hearing. I accept that Ms Kaur’s medical condition prevented her from lodging a claim between 21 January 2017 and 24 November 2017, noting that the period of the delay does not include the period from the date of the dismissal to the end of the 21 day period.3
[20] There was no medical evidence before me which indicated that Ms Kaur was unfit to lodge a claim after 24 November 2017. The fact that Ms Kaur was able to lodge a Federal Court general protections application is compelling evidence that she would have been fit to lodge this application earlier than 15 February 2018.
[21] Ms Kaur has not adequately explained why it took her almost three months after she was found to be competent to participate in Court proceedings in late November 2017 to lodge this application. The failure to provide a credible explanation for this part of the delay tends to weigh against a finding of exceptional circumstances.4
Any action taken by the person to dispute the dismissal
[22] Ms Kaur approached the employer seeking to be re-employed in February and June 2017.
[23] In June 2017, Ms Kaur contacted the Fair Work Ombudsman in relation to her alleged dismissal.
[24] Ms Kaur participated in proceedings before Commissioner Cambridge on 23 June 2017 which appears to relate to a s.372 general protections application not involving dismissal. It appeared, however, that the subject matter discussed before Commissioner Cambridge related to the cessation of Ms Kaur’s employment.
[25] I am not aware of the nature of the Federal Court application other than the fact it related to a general protections claim.
[26] Other than the proceedings before Commissioner Cambridge which concluded with the issuing of s.375 advice on 23 June 2017 and the lodgement of this application, it does not appear that Ms Kaur disputed the basis upon which she stated her employment ceased.
Prejudice to the employer (including prejudice caused by the delay)
[27] The delay in this matter is considerable, and I accept it presents prejudice to Krispy Kreme.
The merits of the application
[28] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.
Fairness as between the person and other persons in a similar position
[29] Krispy Kreme contends that Ms Kaur’s failure to seek legal advice should weigh against her. Reliance for this proposition is taken from a decision of Commissioner Ryan in Pereira v Department of Human Services.5 That case involved an application made three decades after the employment ceased. Under the heading of fairness to others in a like position, Commissioner Ryan said:
“And given that there are some issues that relate to the health of the applicant over that period of time, fairness would have suggested that persons in a like position would have sought advice through professional services of some description or another in a period which would have enabled an application even if it was out of time to me made much earlier than 30 years after to event.”
[30] The decision was made extempore.
[31] I find it difficult to apply this broad concept contained in Commissioner Ryan’s decision to the facts before me. A person who is suffering from a mental illness, that medical evidence suggests adversely impacts on their competence to participate in court proceedings, would surely not be competent to instruct a representative. It is difficult to see how such a position would weigh against an applicant. In my view, the fact that Ms Kaur did not instruct a representative is not a matter which weighs against the finding that exceptional circumstances exist.
[32] Consideration of fairness relative to other persons in similar positions is therefore a neutral factor.
Conclusion
[33] For the reasons I have set out above, I am not satisfied that Ms Kaur’s 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 is dismissed. An Order6 reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
Ms K Kaur the Applicant.
Ms M Doyle of Nexus Lawyers on behalf of the Respondent.
Hearing (Conference) details:
2018.
Adelaide:
March 19.
<PR601337>
1 Pereira v Department of Human Services[2012] FWA 3782
2 [2011] FWAFB 975
3 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 587
4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901
5 [2012] FWA 3782
6 PR601338
Printed by authority of the Commonwealth Government Printer
0
5
0