Lisa McDonagh v Spotless Services Australia Ltd T/A Alliance Catering

[2015] FWC 3444

[2015] FWC 3444

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lisa McDonagh
v
Spotless Services Australia Ltd T/A Alliance Catering
(U2015/4800)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 21 MAY 2015

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

[1] Ms McDonagh 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 Spotless Services Australia Ltd T/A Alliance Catering (Alliance Catering). At a telephone conference convened on 21 May 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 McDonagh’s application was lodged on 14 April 2015. In that application Ms McDonagh advised her employment was terminated with effect from 18 March 2015. In her application, Ms McDonagh confirmed that the application was lodged outside of the 21 day time limit and asked that the following information be taken into account:

“- I was not aware that employers can dismiss verbally, as is the case, and therefore thought I had an extra week to submit (going from the date of my termination letter).

- My daughter was seeking advice with the Working Women’s Centre in Adelaide - did not get clarification from the officer untill 6th April, while she was in Melbourne.” 1 (sic)

[3] On 20 April 2015 my Associate corresponded with both Ms McDonagh and Alliance Catering and advised that the extension of time issue would be considered through a telephone conference on 21 May 2015. Substantial information about the extension of time issue was provided to the parties. Ms McDonagh was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 14 May 2015.

[4] Substantial additional information was received from Ms McDonagh. This information confirmed that she considered that the delay was due to her understanding that the termination of her employment needed to be confirmed in writing. Secondly, she advised that it took some time for her to access advice from the Working Women’s Centre in concert with her daughter. Finally, she advised that, four days after the termination of her employment a close friend died which caused her a great deal of distress.

[5] The Employer’s Response to the application advised that the correct name for the employer was Spotless Services Australia Ltd T/A Alliance Catering. I have utilised the discretion in s.586 of the FW Act to amend the application accordingly. The Employer’s Response indicated that Alliance Catering opposed any extension of time.

[6] Ms McDonagh participated in the telephone conference. Mr Addison, of counsel sought permission to represent Alliance Catering pursuant to s.596 (2). Whilst I permitted Mr Addison to remain present in the conference, I refused a grant of permission for him to represent Alliance Catering on the basis that I was not satisfied that the matter was of any such complexity that it warranted permission being granted, and that, further, it would be inappropriate to grant permission given Ms McDonagh’s circumstances. Mr Brindley from Alliance Catering 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 six 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] To the extent that Ms McDonagh’s reasons for the delay go to her expectation that she had to be given written notice of the termination of her employment before she could take action to dispute that termination, I am unable to accept that this is an acceptable reason for the delay. To the extent that Ms McDonagh argues that she was dependent on her daughter to assist her in arranging a meeting with the Working Women’s Centre, I am similarly unable to accept that this represents an exceptional circumstance. The information before me establishes that the Working Women’s Centre provided advice to Ms McDonagh or her daughter, on 4 April 2015, some ten days before the application was lodged. Finally, the death of Ms McDonagh’s close friend four days after the termination of her employment does not represent an acceptable reason for a six-day delay beyond the 21 day time period specified in the FW Act. Accordingly, I am not satisfied that any of the reasons for the late lodgement meet the requirements for an exceptional circumstance. It is clear from Ms McDonagh’s application that she was aware of the termination of her employment on the day it took effect. I am not satisfied that, apart from the late lodgement of this application, Ms McDonagh pursued other actions so as to challenge the termination of her employment. It is clear that she sought advice from the Working Women’s Centre, but I do not consider that she has established that the actions of the Working Women’s Centre contributed to the delay in this respect. I do not consider that an extension of time of this magnitude would prejudice the Respondent but this, of itself, does not provide a basis for an extension of time.

[10] In terms of the merits of the application, the information before me does not enable a definitive conclusion. Accordingly, I have regarded this factor as a neutral factor relative to the extension of time.

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

[12] Accordingly I have concluded that the material before me does not establish that Ms McDonagh’s 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 (PR567563) giving effect to this decision will be issued.

Appearances (by telephone):

L McDonagh on her own behalf.

M Brindley for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

May 21.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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