Madison Fairfull v Hamilton Child Care Centre Inc

[2015] FWC 1035

[2015] FWC 1035

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Madison Fairfull
v
Hamilton Child Care Centre Inc
(U2014/15936)

DEPUTY PRESIDENT SAMS SYDNEY, 16 FEBRUARY 2015

Application for relief from unfair dismissal - application lodged ‘out of time’ - consideration of ‘exceptional circumstances’ - ‘exceptional circumstances’ not made out - application dismissed.

INTRODUCTION

[1] This decision arises from an application to the Fair Work Commission (the ‘Commission’) for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). Ms Madison Fairfull (the ‘applicant’) claims that she was notified of her termination of employment with Hamilton Child Care Centre Inc. on 19 November 2014. The applicant lodged her application on 12 December 2014. The Act mandates a 21 day time limit for initiating an application for an unfair dismissal. The application was therefore lodged 2 days outside of the statutory time limit set out in s 394(2)(a)) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for an Unfair Dismissal Remedy. On 7 January 2014, the Commission wrote to the applicant outlining the matters I am obliged to consider under s 394(3) of the Act and asking her to provide a statement on 20 January 2015, addressing those matters within 14 days. The applicant provided a six-page statement to which was annexed a bundle of correspondence. Having considered this material, I issued an Order refusing an extension of time and dismissed the application on 20 January 2015. What follows are my reasons for doing so.

STATUTORY PROVISIONS AND PRINCIPLES

[3] The relevant legislative framework, guiding the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘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.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, a Full Bench of the Commission said:

‘[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].’

[5] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing an unfair dismissal application. In other words, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application ‘out of time’; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia [2014] FWCFB 2288 succinctly described the Commission’s decision making process under s 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I turn now to each of the criteria set out under s 394(3) of the Act.

CONSIDERATION

Reasons for the delay (s 394(3)(a))

[6] The applicant was employed as a Diploma in Child Care Services Trainee under a traineeship with TAFE. In her written statement, the applicant explained that she had been called to a meeting with Management on 19 November 2014 and was notified that her employment with the respondent was to be terminated and she would be paid two weeks’ pay in lieu of notice. She had received no prior notice and understood she was to have a meeting with the respondent and a New South Wales State Training officer in relation to the progress of her studies at TAFE.

[7] The applicant referred to s 117(2)(a) of the Act, which sets out that an employer must not terminate an employee’s employment unless the time between giving the notice and the day of the termination is at least the period worked out under s 117(3). She believed that as she had received been paid two weeks’ pay in lieu of notice, the date on which her employment was terminated was effectively 3 December 2014, thereby bringing her unfair dismissal application within time.

[8] In the alternative, the applicant said that she had been so distressed at the time she was dismissed, that she was unable to drive her car. Ms Kylie Kirrage, a Director of the Centre, I had told her to wait outside until her mother collected her and she was not to re-enter the building. When she attempted to re-enter the building to collect some of her belongings, she found that the keypad security code had been changed and she could not enter.

[9] The applicant disclosed that she suffered from depression and anxiety and annexed a letter, dated 4 August 2014 (over three months before her dismissal) from her treating psychiatrist which set out that her condition could ‘affect her ability to concentrate and complete tasks.’ This letter was intended to be taken into consideration for the purposes of providing assistance to the applicant with her TAFE studies. She was also required to meet study deadlines on 5 November 2014. However, she subsequently discovered that the respondent had contacted TAFE to cancel her course. Despite this, she had completed her units of study on 5 December 2014.

[10] The applicant said that she had contacted the Law Society of New South Wales for a legal referral on 2 December 2014. She had made contact with each of the firms nominated by the Law Society. However, none of the firms offered employment law services. She then contacted a number of legal practitioners and had an appointment with Ms Nada Vujat of Emery Partners on 9 December 2014. Ms Vujat advised her on the documents she required in order to provide advice, which she did that day. She instructed Ms Vujat to delay the application while she waited for a reply to an offer she had made to the respondent for reinstatement. The offer was ultimately rejected on 11 December 2014. The application was filed the next day.

[11] At the outset, I should say that the applicant’s interpretation of the phrase ‘after the dismissal took effect’ and her reliance on s 117(2) of the Act is flawed. I would draw her attention to what was said by Wilcox CJ in Siagian v Sanel Pty Ltd (1994) 122 ALR 333 at p 355:

‘It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase “payment in lieu of notice”; it accords with common sense. An employer who wishes to terminate an employee’s services, and is prepared to pay out a period of notice without requiring the employee to work, will surely wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made; and there is the disadvantage that the employer will be burdened with employment related costs, such as workers’ compensation insurance, payroll tax, liability for leave payments etc. The employer also incurs the risk that some new burden will be imposed in respect of the employment during the period.’

[12] S 117(2) is expressed as follows:

‘117 Requirement for notice of termination or payment in lieu

...

Amount of notice or payment in lieu of notice
(2) The employer must not terminate the employee’s employment unless:

(a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or

(b) the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice. [my emphasis]’

[13] The Act draws a clear distinction between situations where notice is paid in lieu or when the notice period is worked, both of which are permissible outcomes. Setting aside the sensitivity (or lack thereof) of the respondent’s conduct immediately following the employee’s dismissal, its actions were consistent with an employer who intended the applicant’s termination to take effect immediately, with notice paid in lieu. Given these circumstances, I find that the date on which the termination took effect was 19 November 2014. In addition, I note that ignorance of the statutory time limit does not constitute an ‘exceptional circumstance’ within the meaning of s 394(3) of the Act; See: Nulty at para [14].

[14] Further, I am unable to conclude that the other reasons identified by the applicant constitute ‘exceptional circumstances’ within the meaning of s 394(3) of the Act. Legal assistance or representation is not required to file an unfair dismissal application for a remedy for an unfair dismissal and, indeed, parties frequently represent themselves in such matters before the Commission. The relevant application form, available from the Commission, is simple and straightforward and extensive guidance is provided on the Commission’s website as to the lodgement of such an application.

[15] It is regrettable that the applicant instructed her solicitor to delay the filing of her application on 10 December 2014. While settlement discussions are to be encouraged, they do not represent a bar to filing an unfair dismissal application, particularly when a late filing may be fatal to the application being accepted. I am not satisfied that this is an ‘exceptional circumstance’ within the meaning of s 394(3) of the Act.

[16] I note that the applicant did not provide contemporaneous evidence in relation to her depression and anxiety and that the letter provided (dated August 2014) was created for the purpose of her gaining assistance with her studies. It could not possibly justify and account for a delay in filing her unfair dismissal application over three months later. There was no relevant evidence of her alleged medical issues. In any event, I refer to the decision of the Full Bench in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, where at para [15], the majority (Watson VP and Smith DP) said:

‘[15] After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual.’

[17] In all the circumstances, the Commission cannot be satisfied that the applicant’s stated reason/s, either individually or cumulatively, for filing her application ‘out of time’, constitute ‘exceptional circumstances’, as contemplated by the statute.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[18] For the reasons set out above, I am satisfied that the applicant became aware of her dismissal on 19 November 2014. This is a neutral factor in this case.

Any action taken by the person to dispute her dismissal (s 394(3)(c))

[19] I note that the applicant sought a reversal of the respondent’s decision to dismiss her before taking action to file this application. I accept that this does constitute action to dispute her dismissal. However, as stated above, waiting for a response to an offer made to the respondent to settle the dispute, does not represent a bar to filing the application. This is a neutral factor in my consideration.

Prejudice to the employer (s 394(3)(d))
[20] The applicant put that the respondent could not be prejudiced by a delay of two days in filing her application. The respondent was aware shortly afterwards that she was unhappy with the decision and was seeking to be reinstated. Given the circumstances and the short delay in filing the application, this is a neutral factor in my consideration of whether to grant an extension of time.

Merits of the application (s 394(3)(e))

[21] A letter of termination dated 19 November 2014 was provided to the applicant on that day. It set out the reason for her termination was that she had failed to attend an in-service course relevant to her traineeship and that work she had submitted for a unit of her studies had been marked as ‘not competent’ for a second time. The result was that the applicant would be unable to re-sit the unit until 2015. The respondent believed that this was a breach of the applicant’s employment contract and a failure by her to meet relevant performance standards. The letter stated that the respondent had worked with the applicant, for over ten months, to assist her to attain the relevant standards. However, the decision had been made to terminate her trainee contract.

[22] The applicant stated that she had completed 7 of the 12 TAFE study units within one year of a two year course. She had failed one unit by reason of workplace injury. She claimed that she had been ‘well-placed’ to complete the final five units this year. She disputed that the respondent had not properly supported her, despite its claim to the contrary.

[23] It is appropriate to note that a consideration of the merits of an application at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis; See: Kyvelos v Champion Socks Pty Limited Print T2421, 10 November 2000. However, it seems clear that the applicant was dismissed for poor performance over a period of time, in that she had failed to comply with her TAFE obligations in relation to her traineeship. Given the increasingly stringent Government obligations and regulations which child care centres are required to observe, I am satisfied, on a prima facie basis, that this would be a valid reason for the applicant’s termination. For these reasons, I am comfortable in making a prima facie assessment that the applicant’s prospects of success are not particularly strong. This weighs against an extension of time being granted.

Fairness as between the person and other persons in a similar situation (s 394(3)(f))

[24] The applicant’s submissions under this criterion repeated her previous submissions as to the timing of the lodgement of her application, her disputing her termination with the assistance of a NSW State Training Officer and her attempts to secure legal representation. However, I do not consider that the applicant’s position in relation to another person in a similar position, is unfair. It appears her case is a conventional dismissal, based on performance issues. This weighs against an extension of time being granted.

CONCLUSION

[25] Having considered all of the matters which the Commission is required to take account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 20 January 2015.

DEPUTY PRESIDENT

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