Lorraine White v Broken Hill Musicians Club Ltd

[2014] FWC 6823

[2014] FWC 6823

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lorraine White
v
Broken Hill Musicians Club Ltd
(U2014/7214)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 30 SEPTEMBER 2014

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

[1] On 13 May 2014 Ms White lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which she sought relief in relation to the termination of her employment with the Broken Hill Musicians Club Ltd (the Musicians Club).

[2] In that application, Ms White advised that her dismissal took effect on either 22 or 28 April 2014. She attached to her application a letter of dismissal dated 2 July 2014. Ms White advised that the Fair Work Commission (FWC) should take into account the following information in considering whether to accept her application out of time.

“Verbally I was notified on 10 April 2014 but my final payslip was for the period ending 22 April 2014. Additionally, I was on holidays at the time that termination of employment was notified to me verbally and I was not due to return to work until 28 April 2014.” 1

[3] The application was referred to me for consideration on 26 August 2014. On 2 September 2014 my Associate advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 18 September 2014. Ms White was required to provide a witness statement and a copy of any document relied upon, by 11 September 2014.

[4] The Employer’s Response (Form F3) to the application asserted that Ms White's termination of employment took effect on the day that she was notified of it, being 10 April 2014. The Musicians Club asserted that the termination of Ms White's employment was a case of genuine redundancy in that she was dismissed as a result of the club's restructuring of operations in an attempt to achieve economic viability and survival. The Musicians Club also lodged an Objection to the Application (Form F4) on the basis that it was lodged outside of the 21 day time limit. Both the Employer's Response and the F4 were signed by a Mr Brennan in the capacity of Administrator.

[5] Ms White provided a witness statement, a copy of the written termination of employment advice dated 10 April 2014 and two Employment Separation Certificates. Her witness statement addressed the lodgement time issue in the following terms:

“On Thursday afternoon 10 April 2014, at approximately 3:30pm, whilst I was on annual leave with my daughter Crystal Lea White while at Wentworth, NSW I received a missed call on my mobile and read a text message, concerning a voicemail that had been converted to text from Robert Brennan, the Club Administrator, asking me to return his call. I returned Mr Brennan’s call at around between 8 - 9pm and was advised that my employment has been terminated effective immediately. I was not given any reasons for my termination and at the time due to being in shock did not respond or contest this determination.

After the phone call I became quite distressed and broke the news to my daughter. I was in shock and disbelief and felt that my loyalty and service to the Club for the period of 18 years meant nothing. Panic started to set in when I realized I had not prior education qualifications and the hospitality industry had catered for all my working experience, not to mention the fact that being only five years away from retirement age, that my age will heavily impact on my ability to find employment.

Whilst on leave I was also dependent on receiving paid annual leave until the end of my leave period which was not until the 28 April 2014. I was unaware that from the date of my dismissal, access to my annual leave pay would cease.

This raised severe financial stress because the wage that I depended upon to assist in paying off my Mortgage, as well as everyday household expenses and utility bills would cease. I did not receive any Notice or pay in lieu of Notice nor did I receive any lump sum payments for Redundancy.

I did not return back to my home in Broken Hill until Monday 12 May 2014 and was not aware of the statutory time period of 21 days to file an Application for Unfair Dismissal, nor was I aware of my legal rights until I engaged the legal services of my Solicitor Mrs Kerry Keady on Tuesday 13 May 2014. My Application was filed electronically on Tuesday afternoon.

After my return to Broken Hill, I was contacted by the Club in approximately late May 2014 to collect some documents, this consisted of a separation certificate and some of my employee records including my RSA/RCG Certificates, First Aid Certificate and certificate II in Security Operations. When I asked for access to my pay records including leave and hours worked, Employee Collective Agreement, Super contributions and my personal file of my wage slips which I had previously stored in a separate manila folder in a filing cabinet in the Club Secretary’s office, I was advised that they could not locate any of the records above.

On the 21 May 2014 I received for the first time a copy of letter concerning Notice of Termination of my employment from the Club dated 10 April 2014. I note that the letter was addressed to my previous residential address at 31 Wright Street, Broken Hill of which I have not lived at for a period of 15 years. I have on previous occasions notified the Club of my current address at 244 Cummins Street, Broken Hill with the belief that all my records would be updated.” 2

[6] The extension of time issue was considered through a telephone conference on 18 September 2014. A sound file record of this conference was kept. Ms White participated in this conference but was represented by Ms Keady, of counsel pursuant to a grant of permission under s.596(2) of the FW Act. The Musicians Club was represented by Mr Langton of the Registered Clubs Association of NSW and by Mr Brennan who confirmed that he was the Club Administrator and that the Musicians Club was operating under a Deed Of Company Arrangement. In the course of this conference Ms White indicated uncertainty in recalling what she had done after being advised of the termination of her employment. As a consequence, I provided her with an opportunity to provide further advice in this regard. In addition, I provided the Musicians Club with an opportunity to provide further advice about precisely when it considered that the termination of Ms White’s employment took effect and the relevance of a decision 3 relied upon by Ms Keady. As a consequence, the matter was the subject of a further conference on 25 September 2014 to enable consideration of this additional material.

[7] I have taken all of the information before me into account in considering the extension of time issue.

[8] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[9] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[10] I have concluded that the termination of Ms White's employment took effect on 10 April 2014 which was the date on which Mr Brennan advised her of that dismissal. Ms White’s statement of 11 September 2014 confirms this.

[11] Mr Brennan’s advice is to the effect that he provided verbal advice of the termination of Ms White’s employment to her by telephone on 10 April 2014 when she returned an earlier call which he made to her. Mr Brennan’s advice is that Ms White accepted that termination advice.

[12] To the extent that Ms White asserts that this advice of termination of employment could not be given to her whilst she was on a period of annual leave, I am unable to agree. There is no provision of the FW Act that prohibits employment termination during a period of annual leave. The decision in CEPU, AMWU, AWU v Silcar Pty Ltd 4 addresses the question of whether an employee can be serving a period of notice at the same time as they are on annual leave. That is not the issue in question here. Ms White may well have entitlements to the payment of outstanding annual leave, payments in lieu of notice and recognition of other employment entitlements. Those issues are outside the FWC jurisdiction in this matter. Simply put, I am satisfied that, on 10 April 2014, Ms White was told of the termination of her employment with effect from that day.

[13] Accordingly, in terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. That application was lodged some 12 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Ms White's circumstances can be regarded as exceptional for the purposes of this subsection.

[14] In Nulty v Blue Star Group Pty Ltd 5 a Full Bench of the FWC addressed this concept of exceptional circumstances in the following terms:

“[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] I have adopted this approach.

[16] Information provided by Ms White discloses a number of reasons for the delay. Ms White asserts that when these reasons are individually or collectively taken into account, her circumstances should be regarded as exceptional.

[17] Firstly, she advises at the outset that she was unaware of any time limit. Having considered all of the material Ms White has provided, I have concluded that this lack of awareness was a significant factor in the late lodgement. That ignorance of the time limit cannot be regarded as either an acceptable reason for the delay, or as an exceptional circumstance.

[18] Ms White advised that she was away from Broken Hill, on annual leave at the time of the termination of her employment. She initially advised that she did not return until 12 May 2014. In her supplementary statement she advised that she returned to Broken Hill earlier and now believed that to be in late April 2014. 6 Ms White subsequently arranged to see Ms Keady on 13 May 2014 and her application was filed electronically that afternoon. I have noted that she was on annual leave at the time of the termination of her employment and that period of annual leave was expected to operate until 28 April 2014. The termination of her employment during that period of annual leave could give rise to an exceptional circumstance if, for instance, she was away and unable to communicate or access information. That is not the circumstance here as she returned to Broken Hill within the 21 day time limit. Indeed, on 29 April 2014 she advised her doctor that she was going to contact a lawyer.7 At that point she was still within the 21 day time limit. I do not consider that a period of actual or planned annual leave, of itself, represents an exceptional circumstance.

[19] Ms White advised that the written confirmation of the termination of her employment was erroneously sent to a property which she owned but had not lived in for some time. She advised that she had informed The Musicians Club of her current address on a number of occasions. Notwithstanding this late receipt of the written confirmation of the termination of her employment, Ms White was clearly aware of her dismissal from 10 April 2014.

[20] Ms White advised 8 that, prior to the termination of her employment she was of the view that, because The Musicians Club had gone into administration she could not take an unfair dismissal action against it. Whilst this may be the case, I am unable to easily reconcile it with Ms White’s subsequent actions in seeing her lawyer.

[21] Ms White referred to her distress at being told of the termination of her employment and at the subsequent disruption of her annual leave payments. In her supplementary statement she stated:

“After receiving the verbal notice of termination of my employment, on 10 April 2014, I was extremely stressed and upset and some of my recollections were confused and inaccurate. The following clarifications arise out of my making further enquiries about dates and events.” 9

[22] The medical evidence before me is to the effect that, on 29 April 2014 she requested paperwork for a disability support pension and was upset and stressed by the loss of her job. Ms White was not on antidepressant medication. I am unable to conclude that Ms White’s medical condition has been established to me as an exceptional circumstance.

[23] Having considered each of these factors. I am not satisfied that, even taken collectively, they represent a combination of reasons for the delay so as to create an exceptional circumstance. Ms White was aware of the termination of her employment on 10 April 2014. The medical evidence does not establish that she was unable to pursue possible remedies. Considerations of Ms White’s lack of knowledge of the 21 day time limit, or doubts about her capacity to pursue an application of this nature do not represent exceptional circumstances. In reaching this conclusion I have noted that the written termination of employment advice was sent to the wrong address and that Ms White was expected to be on annual leave until 28 April 2014. The inclusion of these considerations does not tip the balance to favour an exceptional circumstance.

[24] In terms of s.394(3)(b), none of the matters referenced by Ms White detracts from the extent to which she was clearly aware of the termination of her employment on 10 April 2014.

[25] Again, from the information before me, I have concluded it is clear that, apart from the late lodgement of this application, Ms White did not take any other action to challenge the termination of her employment.

[26] I am not satisfied that the granting of an extension of time would prejudice the respondent in this matter, but this, of itself does not form a basis for an extension of time.

[27] In terms of the merits of the application, the information before me indicates clearly that Ms White was made redundant as a consequence of the financial difficulties facing The Musicians Club. That information does not establish that the mandatory requirements of s.389 of the FW Act were met such that the termination of Ms White's employment can be regarded as a genuine redundancy. Consequently, I have regarded the merits of the application as a neutral factor in considering the extension of time issue. I have already mentioned that Ms White may have a legitimate claim for the payment of entitlements but that is a matter outside of the jurisdiction of the FWC.

[28] Considerations of fairness relative to persons in similar circumstances to Ms White do not support an extension of time.

Conclusion

[29] For the reasons I have set out above, Ms White's circumstances do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). An Order (PR556011) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

K Keady counsel for the applicant.

C Langton agent for the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

September 18 and 25.

 1   Form F2, para 1.4

 2   Statement of Applicant dated 11 September 2014, paras 4 - 9

 3   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU),The Australian Workers Union v Silcar Pty Ltd, [2013] FWC 856

 4   [2013] FWC 856

 5   [2011] FWAFB 975

 6   Applicant’s Statement dated 24 September 2014, para 8

 7   Applicant’s Statement dated 24 September 2014, para 9

 8   Applicant’s Statement dated 24 September 2014, paras 6 and 7

 9   Applicant’s Statement dated 24 September 2014, para 3

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