Lisa Gibbs v Lone Tree Pastoral Company Pty Ltd T/A Blockbuster Video

[2015] FWC 425

[2015] FWC 425

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lisa Gibbs
v
Lone Tree Pastoral Company Pty Ltd T/A Blockbuster Video
(U2014/16728)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 16 JANUARY 2015

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

[1] Ms Gibbs 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 the Lone Tree Pastoral Company Pty Ltd T/A Blockbuster Gawler (Blockbuster). At a telephone conference convened on 16 January 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] Ms Gibbs’ application was lodged on 30 December 2014. In that application Ms Gibbs advised her employment was terminated on 2 December 2014. Ms Gibbs advised that she considered her application was lodged within time.

[3] On 5 January 2015 my Associate corresponded with both Ms Gibbs and Blockbuster and advised that the extension of time issue would be considered through a telephone conference on 16 January 2015. Substantial information about the extension of time issue was provided to the parties. Ms Gibbs was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time.

[4] Additional information was received from Ms Gibbs on 9 January 2015 in the form of a statement witnessed by a Justice of the Peace. This stated:

“This letter/Email is in regards to my claim for unfair dismissal forms being received late although I had posted by the due date, I have gone in to the post office where the documents were posted and spoken to the person in charge, she has informed me that although the documents were posted on time, due to the extremely high workload put on all postal workers over the Christmas period, they would have been sorted by the post office until the 24th of December at the earliest and due to postal workers not working on the 25th 26th 27th or 28th and that they would have been directed to your mailing address on the 29th and therefor received on the 30th, their contact number is XXXX XXXX and they have asked that they be contacted if there are any queries.

I was genuinely unaware of the serious time delay mentioned above and would have gladly brought it in person as to ensure the documents safe and timely delivery, I feel very strongly about my claim and would not willingly do anything that may jeopardise the outcome, or make things difficult for those dealing with my lodgement, I will post a copy of these to the Respondent but I cannot ensure its receipt before close of business tomorrow as it will be posted as there is not contact address for the Respondent.” 1 (sic)

[5] The Blockbuster Video Employer Response (Form F3) set out its objection to any extension of time for the application and asserted that it was a small business such that the Small Business Fair Dismissal Code had application. Blockbuster asserted that the termination of Ms Gibbs’ employment was consistent with the requirements of that code and occurred after she had been given warnings and in response to its conclusion that she had allocated herself unauthorised discounts for products.

[6] Ms Gibbs participated in the telephone conference. Mr Graham and Mr Vockin from Blockbuster also participated in this conference. My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[7] 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.”

[8] On the information before me I am satisfied that the application was made some seven (7) days outside of the 21 day time limit and hence, 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.”

[9] Ms Gibbs’ advised that she had understood from the enquiries she made with the Fair Work Commission a few days after her dismissal that she had to post the application within 21 days rather than ensure that it was received within 21 days. Notwithstanding this, her reason for the delay was that she was limited in her capacity to post the application because she lived at Lewiston and did not have a car. She asserted that she posted the application on 23 December 2014 in time for it to arrive within the required 21 days but that her subsequent enquiries with her local post office indicated that it may not have been processed and/or delivered until seven days later. Ms Gibbs has not provided evidence which satisfactorily establishes to me the date upon which she did in fact post her application. Whilst Ms Gibbs assured me that it was posted on 23 December 2014 I am unable to reconcile that advice with a date stamp on the envelope which appears to indicate 28 December 2014 but certainly does not specify 23 December 2014. More importantly, I am not satisfied that a delay of this nature is attributable to Australia Post.

[10] Absent evidence about delays directly attributable to Australia Post I am not satisfied that Ms Gibbs has established an acceptable explanation for the delay or that her circumstances are exceptional. It is clear from Ms Gibbs’ application that she was aware of the termination of her employment on the day on which this termination took effect. I am not satisfied that Ms Gibbs took any other action to dispute the termination of her employment other than the late lodgement of this application. I do not consider that an extension of time of this magnitude would prejudice Blockbuster but this, of itself, does not provide a basis for an extension of time.

[11] I have noted the Blockbuster advice that it is a small business and hence the Small Business Fair Dismissal Code has application. If the application of that code is established and Blockbuster provided evidence which supports its contentions with respect to previous concerns about Ms Gibbs’ behaviour and the reasons for her dismissal, I would expect Ms Gibbs’ application to be unsuccessful. However, information which allows any definitive conclusion in this respect is not before me and I have consequently regarded the merits of the application as a neutral factor relative to the extension of time issue.

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

[13] Accordingly I have concluded that the material before me does not establish that Ms Gibbs’ circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR560159) giving effect to this decision will be issued.

Appearances (by telephone):

L Gibbs on her own behalf.

P Graham and J Vockin appearing for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

January 16.

<Price code C, PR560158>

 1   Applicant Statement, received 9 January 2015

 2   [2011] FWAFB 975

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