Leanna Perris v Quad Services

[2016] FWC 2174

[2016] FWC 2174

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leanna Perris
v
Quad Services
(U2016/5158)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 15 APRIL 2016

Application for relief from unfair dismissal - extension of time not granted.

[1] Ms Perris has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with Quad Services Pty Ltd (Quad). The application has been the subject of telephone conferences convened on 31 March 2016 and 7 April 2016. At the 7 April 2016 conference I advised that I would determine a position on the basis of all of the material before me, including advice signed by a medical practitioner to confirm the location, duration and reasons for Ms Perris’ asserted hospitalisation in February 2016 if that advice was provided to me within seven days. This decision set out my conclusion with respect to an extension of time for Ms Perris’ application.

[2] Ms Perris’s application was lodged on 7 March 2016. Ms Perris signed the application on 4 March 2016. In that application Ms Perris confirmed that the termination of her employment took effect on 4 February 2016 and that she was advised of her dismissal on that same day. Ms Perris provided the following explanation for the late lodgement of his application:

“I was in hospital having surgery, and have been recovering, the medication I was on affected me and my recovery was slow and painful. As such I have only just started to be reasonably able bodied.” 1

[3] On 8 March 2016 my Associate corresponded with both Ms Perris and Quad and advised that the extension of time issue would be considered through a telephone conference on 30 March 2016. Substantial information about the extension of time issue was provided to the parties. Ms Perris was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 24 March 2016.

[4] No additional information was received from Ms Perris despite a reminder to this effect sent on 24 March 2016.

[5] The Employer’s Response to the application indicated that Quad opposed the extension of time. In this response, Quad advised that Ms Perris had been absent from work for non-annual leave reasons for in excess of 141 days. It advised that she returned to work on 15 December 2015 but was absent again from 16 December 2015. On 18 January 2016 Quad assert that Ms Perris advised that she would be undergoing surgery on 9 February 2016 and would be off work for an indefinite period. Quad asserted that Ms Perris’ attendance record established that she was unable to fulfil her employment contract. Quad asserted that Ms Perris received various warnings during her employment and that her final absence was “due to family reasons”. Quad assert that advice of the termination of Ms Perris’ employment was sent to her by email and was also delivered to her home.

[6] Mr Kalmar participated in the telephone conferences to represent Ms Perris. He advised that Ms Perris was unwell and unable to participate. No medical advice to confirm this has been provided to me. Quad was represented by Ms Naidoo. I note that a sound file record of these telephone conferences was kept.

[7] At the first conference, Mr Kalmar advised that he had responded to the directions of 8 March 2016. Mr Kalmar was unable to explain why this response had not been received by either the Fair Work Commission or by Quad. He requested the opportunity to provide this material for further consideration. As a consequence, the application was listed for a further conference on 7 April 2016. I requested a copy of the initial response to be provided by close of business 1 April 2016. On 1 April 2016 Mr Kalmar advised that he had been unable to find a copy of that initial response. However he advised that, at the time of the termination of her employment, Ms Perris was in hospital having surgery which required hundreds of stitches following an accident at her home. In the second conference, Mr Kalmar advised that Ms Perris remained unwell and could not participate. He advised that she was admitted to hospital on 3 February 2016, had an extensive operation involving hundreds of stitches on 4 February 2016 and did not come out of hospital until 27 February 2016. He advised that she had not been able to instruct him to lodge the application until 4 March 2016 because she remained on strong medication. Mr Kalmar advised that Ms Perris had not become aware of the termination of her employment until some two weeks after that took effect. In terms of the merits of the application, Mr Kalmar advised that the employer had been properly notified of her absence and was aware of the reasons for it. Further, that, at the time of the termination of her employment, Ms Perris was on unpaid sick leave.

[8] The Quad position at this second conference was that, on 28 January 2016, Ms Perris sent a text message to the Quad Site Manager in which she advised that she would not be back at work until the following Thursday, that she was going to Port Pirie, her family needed her and she had a funeral to attend the following week. Quad advised that it had an earlier text message, sent on 18 January 2016 in which Ms Perris advised that she needed a hysterectomy and that this had been arranged and booked for 9 February 2016. Further, Quad advised that Facebook messages indicated that Ms Perris had confirmed to her friends that she was undergoing surgery on 9 February 2016. Quad advised that it had dismissed Ms Perris because of her extensive absenteeism, which included 18 days absence in January 2016 and 46 days, over the previous year, excluding approximately 100 days which was due to illness.

[9] In reply, Mr Kalmar asserted that Ms Perris had attended hospital in Port Pirie.

[10] Neither party provided evidence to support the assertions made in this matter. As a consequence, I required Mr Kalmar to provide to me within seven days, advice signed by Ms Perris’ doctor which confirmed the location, duration and reasons for her hospitalisation in February 2016. Quad was given further time to respond to that information should they wish to do so. Both parties were advised that, absent the provision of information consistent with this direction, I would reach a conclusion on the material then available to me.

[11] On 12 April 2016 Mr Kalmar provided a photograph of a hospital discharge register for Ms Perris which recorded that she entered hospital on 3 February 2016 and was discharged on 11 February 2016. This form referred to a hysterectomy. No medical information substantiating Mr Kalmar’s assertions that Ms Perris was hospitalised and unaware of the termination of her employment until 27 February 2016.

[12] Quad provided further information on 14 April 2016 which enclosed various text messages and Facebook postings confirming its understanding of the reason for Ms Perris’ final absence. This included a text message she sent on 28 January 2016 which stated: “Hi Sieg I won't be back till Thursday had some stuff go down and my family needs me right now. And then we have the funeral next week. Sorry.”

[13] 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.”

[14] I have concluded that the application was made some 11 days outside of the 21 day time limit and can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 2 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.”

[15] Ms Perris’ reasons for the late lodgement of her application go to her assertion that, after the termination of her employment, she was undergoing surgery, on medication and was unable to progress the application. Medical advice to confirm her position over the entirety of the period in question has not been provided to me despite the opportunities extended to Mr Kalmar. On the information before me, Ms Perris left hospital on 11, or, at the latest 12 February 2016 and there is no evidence that confirms why it was that she was unable to sign her application until 4 March 2016 and then lodge it on 7 March 2016. I am not satisfied that Ms Perris’ explanation of the delay discloses an exceptional circumstance.

[16] The application confirmed that Ms Perris was aware of the termination of her employment on the day on which it took effect. Mr Kalmar’s subsequent assertion that she only became aware of her dismissal two weeks later because of her medical condition has not been established to me.

[17] I am not satisfied that, apart from the late lodgement of this application, Ms Perris took other action to dispute the termination of her employment.

[18] There is no argument that an extension of time of this magnitude would prejudice the Respondent but I have not founded my decision in this matter on that premise.

[19] In terms of the merits of the application, the information before me does not enable a conclusion so I have regarded this as a neutral issue with respect to the extension of time. It is appropriate that I note, however, that there is nothing in the merits which have been disclosed to me which positively confirms an exceptional circumstance.

[20] Considerations of fairness relative to other persons in similar positions do not generally support an extension of time.

[21] Accordingly, I have concluded that the material before me does not establish that Ms Perris’ circumstances can be regarded as exceptional so as to warrant an extension of time. The application must be dismissed accordingly and an Order (PR578786) giving effect to this decision will be issued.

Appearances (by telephone):

J Kalmar on behalf of Ms Perris.

R Naidoo for the respondent.

Hearing (Conference) details:

2016.

Adelaide:

31 March

7 April.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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