Larissa Cosgrove v Blockey School Bus Company

[2017] FWC 3160

[2017] FWC 3160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Larissa Cosgrove
v
Blockey School Bus Company
(U2017/2813)

COMMISSIONER PLATT ADELAIDE, 9 JUNE 2017

Application for an unfair dismissal remedy – extension of time – application dismissed.

[1] Ms Larissa Cosgrove 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 the Blockey School Bus Company (BSBC) which her Form F2 Unfair Dismissal Application advised took effect on 26 November 2015.

[2] This application was lodged on 15 March 2017.

[3] Ms Cosgrove’s application explained the failure to lodge the application within 21 days from the dismissal as follows:

“All employees where (sic) given a letter of dismissal (please find attached) then on the Friday of last week 3/3/2017 I found out by complete accident that the company was not sold and my job was still there as a school bus aide. The other employees I found out yesterday, where (sic) offered there (sic) jobs back, but not me, I asked why, the driver informed me that I was only a temporary on that bus run – which I don’t agree with – the owner swapped me over that that bus run – mid 2014. So I don’t understand why after 17 ½ years service I didn’t get my job back and the other lady June only T.B.C”

[4] On 12 April 2017, BSBC lodged a Form F3 Employer Response and raised a jurisdictional objection on the basis that the application was lodged out of time and was a case of genuine redundancy. This decision only deals with the extension of time issue.

[5] On 10 May 2017, my Associate corresponded with Ms Cosgrove and BSBC and advised that the extension of time issue would be considered at a telephone conference on 7 June 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 Cosgrove was directed to provide a statement concerning the extension of time and any documents to be relied upon by 24 May 2017. BSBC was invited to file any material in reply by 31 May 2017.

[6] By way of background, BSBC provides bus services on three routes in Perth. One route services the North West, the other two routes service the South East. Each of the three routes has a driver and a bus aide. These routes were serviced during school terms only.

[7] Prior to the dismissal, Ms Cosgrove worked as an aide on a bus driven by Ms Judy Blockey. This bus services the North West.

[8] Ms Cosgrove had a dispute with BSBC over Ms Judy Blockey’s capacity to drive as result of a medical incident. This included reporting the matter to the State Safety Authority.

[9] Ms Judy Blockey’s capacity was subsequently reviewed and she was certified as fit to drive a bus in July 2015 and, after taking some leave, she returned to work for the last 8 weeks of the 2015 school year.

[10] In this period, Ms Cosgrove was assigned to work on a route to the South East as a result of the poor relationship between her and Ms Judy Blockey.

[11] A hearing was conducted by way of telephone conference on 7 June 2017. A sound file record of the telephone conference was kept. Ms Cosgrove and Ms Andrea Blockey attended. Both parties were self-represented, and as a result the matter was conducted by way of a determinative conference.

[12] Ms Cosgrove’s evidence and written submission is summarised as follows:

● Ms Cosgrove was employed as a bus aide at the time of her dismissal.
● Ms Cosgrove provided a letter dated 26 November 2015 from BSBC which stated BSBC would ‘no longer be trading after 20 December 2015’ and ‘at present my contracts are under negotiation with proposed parties’ and ‘all three buses will have new owners and staff commencing Term 1 2016’.
● On or about 3 March 2017, Ms Cosgrove met a man called Paul who advised her that he was still working for BSBC. Ms Cosgrove did not know Paul’s surname. He advised Ms Cosgrove that the sale of the business had fallen through and he continued to work on one of the South East routes.
● Ms Cosgrove contacted Paul a week later, after the funeral of Ms Judy Blockey, and confirmed what he had told her.
● Ms Cosgrove lodged her claim on 15 March 2017.
● In effect, Ms Cosgrove states that the reason for her dismissal was false and that she only became aware of that on 3 March 2017 and lodged her application soon thereafter.
● Ms Cosgrove said the business did not sell as the purchaser could not raise the finance and that she now believes Ms Andrea Blockey did not want her back, and infers that was as a result of the interaction with Ms Judy Blockey.
● Ms Cosgrove states that she should have been re-employed.
● Ms Cosgrove submits that these circumstances are exceptional such that her extension of time application should be allowed.

[13] Ms Blockey’s evidence and submission is summarised as follows:

● Ms Cosgrove worked on the North West route for 16.5 years.
● The transfer to the South East route was on a temporary basis as a result of the poor relationship between Ms Judy Blockey and Ms Cosgrove.
● The North West route was agreed to be sold and in late 2015 completed.
● The South East route sale did not complete due to financial issues concerning the purchase and was still operated by BSBC.
● Ms Cosgrove was not re-employed as she predominantly worked on the North West route.
● In her Form F3 Employer Response Ms Blockey states that Ms Cosgrove was not re-employed as a result of her animosity towards Ms Judy Blockey and she was not a ‘team player’.
● Ms Judy Cosgrove is now deceased.

[14] 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.”

[15] This unfair dismissal application by Ms Cosgrove was made 476 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[16] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ 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.”

[17] I make the following findings.

[18] At the time of the dismissal the advice provided to Ms Cosgrove by BSBC was based on a genuine belief that the business sale would complete.

[19] The failure of the South East route sale to complete was not as a result of the conduct of BSBC.

[20] Whilst there is some conjecture as the reasons Ms Cosgrove was not re-employed, there is no contest over the reason for the dismissal.

[21] A failure to re-employ is not of itself an exceptional circumstance.

[22] The delay in this matter is extreme, and it is difficult to understand that Ms Cosgrove would not have been aware of the changed circumstances earlier.

[23] The granting of an extension of time represents significant prejudice to BSBC particularly in light of the death of Ms Judy Blockey who would be a key witness. This weighs against the grant of an extension of time.

[24] In terms of the merits of the application, it appears to me that at the time of the dismissal BSBC had a genuine and reasonable belief that the business would sell and that the employees would not be engaged in the following school year, consulted with the employee, and thus the employment terminated by way of genuine redundancy. I have regarded the merits as a factor that weighs against the granting of an extension of time.

[25] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[26] For the reasons I have set out above, I am not satisfied that Ms Cosgrove’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 Order 2 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Ms L.Cosgrove the Applicant.

Ms A.Blockey on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

7 June.

1 [2011] FWAFB 975

 2   PR593623

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