Leanne Forbes v Tenison Woods College

[2015] FWC 8111

[2015] FWC 8111

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leanne Forbes
v
Tenison Woods College
(U2015/14150)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 27 NOVEMBER 2015

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

[1] Mrs Forbes 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 Catholic Church Endowment Society Inc T/A Tenison Woods College (Tenison Woods College). At a telephone conference convened on 26 November 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion.

[2] Mrs Forbes’ application was lodged on 10 November 2015. In that application Mrs Forbes advised that she resigned her employment on 21 July 2015 and the termination of her employment took effect on that same date. Mrs Forbes provided the following explanation for the late lodgement of her application:

“As a result of the circumstances which occured in my workplace I have suffered from an extreme and debilitating case of reactive depression, stress and anxiety. Its is only now that I have been able to face the situation and seek resolution. I have been unable to return to a workplace. I will attach supporting documents from my G.P verifying the above.” (sic) 1

[3] On 11 November 2015 my Associate corresponded with both Mrs Forbes and Tenison Woods College and advised that the extension of time issue would be considered through a telephone conference on 26 November 2015. Substantial information about the extension of time issue was provided to the parties. Mrs Forbes was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 19 November 2015.

[4] Additional information was received from Mrs Forbes, on 13 November 2015, in which she stated:

“I have attached supporting documents in regards to my late claim for Constructive Dismissal.

I have not returned to work due to Reactive stress and anxiety experienced since my departure from Tenison Woods College and I have not been physically or mentally able to take any action in regards to Unfair Dismissal due to my health. I have provided supporting documents from my GP to Centrelink supporting my claim and inability to return to work as well as a medical certificate.

I believe I had no other choice within my workplace and had to resign due to the extremely stressful office bullying I had experienced and the non existent follow up from management in regards to their assistance in helping to resolve the matters I had bought to their attention. I have provided documents previously outlining the series of events that occurred. I have suffered healthwise and also financially to a large extent, due to having no choice but to leave my workplace.”

[5] Mrs Forbes attached an unsigned Centrelink medical certificate dated 19 August 2015 which confirmed that she was unfit for work/study from 23 July 2015 to 23 October 2015 and a medical certificate dated 10 July 2015 which confirmed that she was unfit for work from that date to 31 July 2015.

[6] The Employer’s Response to the application indicated that Tenison Woods College opposed the extension of time and also objected to the application on the basis that it asserted that Mrs Forbes was not dismissed.

[7] Mrs Forbes participated in the telephone conference. Ms Webb, of counsel sought permission to represent Tenison Woods College. That request was not opposed and permission was granted pursuant to s.596(2) of the FW Act. The Tenison Woods College Principal, Mr Mezinec also participated in the conference. I note that a sound file record of this telephone conference was kept.

[8] 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.”

[9] In the conference, Mrs Forbes agreed that the termination of her employment took effect on 24 July 2015. I have concluded that the application was made some 88 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.”

[10] Mrs Forbes’ reason for the late lodgement of her application is that she was unable to lodge the application because of her health. I have accepted Mrs Forbes’ advice that she had, and meant to attach a further medical certificate which continued the assessment that she was unable to work or study until December 2015. The medical certificates provided to me confirm that she was unable to work or study. I am not persuaded that the certificates establish that Mrs Forbes was unable to lodge the application. The Centrelink certificate refers to planned and current treatment by a psychologist but medical evidence from a psychologist that establishes that Mrs Forbes was unable to lodge the application has not been provided to me. There is no medical advice that establishes a change in Mrs Forbes’ position such that she was then able to lodge this application on 10 November 2015. Further, the correspondence provided by Tenison Woods College confirms that Mrs Forbes wrote to the Director of Catholic Education on 21 July 2015, and on 21 October 2015. Those actions appear inconsistent with Mrs Forbes assertion that she was unable to lodge this application. Consequently, I am not satisfied that a medical basis which properly explains why Mrs Forbes could not lodge this application within time. The certificates do not represent evidence of an incapacity to lodge this application before 10 November 2015. Furthermore, Mrs Forbes advised that she accessed the Fair Work Commission website and telephone service in late October 2015 and was made aware of the unfair dismissal lodgement requirements. She signed the application on 2 November 2015 but then did not lodge it until 10 November 2015. If Mrs Forbes was well enough to complete the application, she has not established a sustainable explanation for the subsequent 8 day delay in its lodgement.

[11] Mrs Forbes initiated the termination of her employment when she wrote her resignation on 13 July 2015. As a consequence she had time, even before that employment termination took effect, to consider an application of this nature.

[12] I am not satisfied that, apart from the late lodgement of this application, Mrs Forbes took other action to dispute the termination of her employment. Whilst I accept that she sought legal advice, this occurred in late October or early November and does not explain the delay.

[13] Tenison Woods College did not argue that an extension of time of this magnitude would most likely prejudice it. However, notwithstanding that the delay is a very substantial one, I have not founded my decision in this matter on concerns with respect to prejudice to the employer.

[14] In terms of the merits of the application, I have considered Mrs Forbes’ assertions that she was forced to resign such that I should regard this resignation as a termination of employment at the initiative of the employer. Mrs Forbes confirmed that she resigned because she considered that her employer did not respond in a timely fashion to her complaints about other staff. I do not consider that the material before me supports this contention in any way. The correspondence evidences Mrs Forbes’ concerns about the behaviour of certain staff but additionally supports the Tenison Woods College position that senior staff endeavoured to support and assist Mrs Forbes and did not take any action which was, or could easily be construed as leaving her with no option other than to resign her employment. Indeed, the correspondence to Mrs Forbes confirms that Tenison Woods College took steps to assist Mrs Forbes through a mediation process which she did not undertake or participate in. Mrs Forbes had a range of other alternatives rather than resignation. She elected to resign but was not put in a position where that resignation was the only option open to her. There is nothing before me that supports Mrs Forbes contention that she was forced to resign. Accordingly, I have concluded that the application does not appear to have merit. This conclusion mitigates strongly against an extension of time and does not contribute to an exceptional circumstances finding or conclusion.

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

[16] Accordingly, I have concluded that the material before me does not establish that Mrs Forbes’circumstances can be regarded as exceptional so as to warrant an extension of time. The application must be dismissed accordingly and an Order (PR574341) giving effect to this decision will be issued.

Appearances (by telephone):

L Forbes on her own behalf.

Y Webb of counsel for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

November 26.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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