Kylie Campbell v Pioneer Credit Acquisition Services Pty Ltd
[2017] FWC 236
•12 JANUARY 2017
| [2017] FWC 236 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009 s.394 - Application for unfair dismissal remedy
v
Pioneer Credit Acquisition Services Pty Ltd
(U2016/13838)
COMMISSIONER PLATT | ADELAIDE, 12 JANUARY 2017 |
Application for relief from unfair dismissal - exceptional circumstances- extension of time.
[1] Ms Kylie Campbell has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Pioneer Credit Acquisition Services Pty Ltd (Pioneer Credit).
[2] Ms Campbell’s application was lodged on 18 November 2016 and advised her dismissal took effect on 20 October 2016 and that the lodgement was late as a result of her waiting to see if Pioneer Credit had paid her entitlements.
[3] On 28 November 2016 Pioneer Credit submitted a Form F3 Employer response which objected to the matter being heard on the basis that it was lodged out of time.
[4] On 5 December 2016, my associate corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 11 January 2017. 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 Campbell was directed to provide a statement concerning the extension of time and any documents to be relied upon by 2 January 2017. Pioneer Credit was invited to file any material in reply by 9 January 2017.
[5] No submission was received from Ms Campbell.
[6] In the period between 5 January 2017 and 9 January 2017 a number of emails were exchanged between Ms Campbell and my associate in relation to a request to change the date of the hearing.
[7] On 9 January 2016, Pioneer Credit provided a submission opposing the extension of time application.
[8] A hearing was conducted by way of teleconference on 11 January 2017. Ms Campbell represented herself and Mr Andrew Kennedy represented Pioneer Credit with Ms Penny Thomas. A sound file record of the telephone conference was kept.
[9] The position of Ms Campbell as contained in her application and supplemented by her oral submissions at the hearing is summarised as follows;
• On 20 October 2016 her employment was dismissed.
• Ms Campbell accepted that she swapped the price tag on an item with a lower one at a store near her place of work whilst wearing a company uniform, but contested the connection to her work.
• Ms Campbell contended that she was not paid her full entitlements and delayed making the application to see if Pioneer Credit would pay her correctly.
• The Commission had already agreed to extend the time by email.
[10] Pioneer Credit relied on its written submissions which are summarised as follows;
• Ms Campbell’s dismissal took effect on 20 October 2016.
• The last day to file the application on time was 10 November 2016.
• The application was filed on 18 November 2016.
• Pioneer Credit advised Ms Campbell in writing at the time of termination that her entitlements would be paid in the next pay cycle.
• Ms Campbell made a conscious election to ‘wait and see’, and this does not constitute an exceptional circumstance. (Moses v Tim Duross T/A Your Friend in the Trade 1)
• Ms Campbell took no other action to contest the dismissal save for making the application on 18 November 2016.
• Pioneer Credit has incurred significant cost in defending the application.
• As to the merit, Ms Campbell was dismissed for admitted misconduct which occurred outside the workplace, but was connected with work. At the time Ms Campbell was wearing a company uniform which was recorded on CCTV and Pioneer Credit was identified and approached concerning Ms Campbell’s behaviour.
• The Commission should not exercise its discretion to grant an extension of time.
Applicable Law
[11] Section 394 relevantly states:
“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.”
[12] Ms Campbell’s unfair dismissal application was made 8 days outside of the 21 day time limit and can only be pursued if this time limit is extended.
[13] I have considered the provisions of s.394(3) 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
[14] Ms Campbell’s application relies principally on her waiting to see if Pioneer Credit would pay her entitlement in full. Ms Campbell’s application effectively represents a claim for unpaid employment entitlements rather than an unfair dismissal application. In her application, Ms Campbell seeks payment of her notice entitlement. These factors may enable Ms Campbell to pursue an underpayment claim but they do not represent an acceptable reason for the delay in lodging the application.
[15] The applicant needs to provide a credible explanation for the entire period of the delay. 3
[16] Other than the late lodgement of this application, Ms Campbell took no other action to dispute the termination of her employment.
[17] In terms of the merits of the application, Ms Campbell, in her application, accepts the conduct occurred but disputes the connection with work. Based on the material before me the wearing of a company uniform would provide a sufficient connection with work and thus for the purposes of this application the merits weigh against the granting of an extension of time.
[18] Whilst Pioneer Credit submits the granting of an extension of time represents prejudice, I do not accept that submission.
[19] Considerations of fairness relative to other persons in similar positions, is not relevant in this matter.
[20] The final matter advanced at the hearing by Ms Campbell was that the Commission had already approved her application. This was a surprising contention as I am the only Member of the Commission to whom the conduct of the matter has been assigned. Ms Campbell advised she could establish this contention by providing an email. The email provided contained the exchange referred to above between my associate and Ms Campbell between 5 and 9 January 2017, which related to an application for an adjournment by Ms Campbell. There is no reference to any decision by the Commission concerning the application. On this basis there is no evidence before me that the Commission has at any time prior to the hearing granted Mr Campbell’s application to extend the time for lodgement of her unfair dismissal application.
Conclusion
[21] For the reasons I have set out above, I am not satisfied that Ms Campbell’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 will be dismissed. An Order4 reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
Ms Campbell
Mr Kennedy with Ms Thomas appeared on behalf of the Respondent.
Hearing (Conference) details:
2017.
Adelaide:
January 11.
1 [2013] FWC 632
2 [2011] FWAFB 975
3 Cheval Properties Pty Ltd t/as Penrith Hotel v Smithers (2010) 197 IR 403.
4 PR589322
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