Maret Peachey v Oya Financial Services P/L T/A Osborne Yuille

[2015] FWC 7974

[2015] FWC 7974

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maret Peachey
v
OYA Financial Services P/L T/A Osborne Yuille
(U2015/12281)

COMMISSIONER JOHNS SYDNEY, 20 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).
[2] The relationship between Ms Peachey and the respondent ended on 3 August 2015. Ms Peachey lodged her application at the Fair Work Commission on 14 October 2015. Her application was lodged 21 days outside the statutory time limit.
[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Ms Peachey. I wrote to her on 21 October 2015 outlining the matters I was required to consider by the Act and asked her to provide a statement addressing these matters within 14 days. Ms Peachey provided a comprehensive statement on 4 November 2015. I issued an Order refusing her application for an extension of time and dismissed her application on 13 November 2015. Ms Peachey requested reasons for the decision. These are those reasons.
[4] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(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.

[5] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the Full Bench 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.” [Endnotes not reproduced]

[6] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.394(3) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.
[7] I considered the various criteria to which my attention is directed by s.394 (3) of the Act.

Reason for the delay-s.394(3)(a)

[8] The reasons Ms Peachey provided for her delay in lodgement were :

a) ignorance of her right to lodge an application for unfair dismissal;
b) ignorance of the time limit for lodgement, and
c) delay occasioned by her attempt to resolve the matter with the respondent without proceeding to litigation.

[9] It has long been recognised that ignorance of the timeframe for lodgement is not exceptional circumstance. 1 Further, it can be observed that attempt to resolve matters directly between parties attempting to avoid litigation is something that is regularly, routinely, or normally encountered.
[10] This factor weighed against granting the applicant an extension of time.

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

[11] Ms Peachey became aware of the end of her relationship with the respondent on 3 August 2015. Her application for unfair dismissal remedy was lodged on 14 October 2015.
[12] This factor weighed against granting the applicant an extension of time.

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

[13] Ms Peachey disputed her dismissal by lodging this application.
[14] Noting the delay this factor weighed against granting the applicant an extension time.

Prejudice to the employer-s.394(3)(d)

[15] I was satisfied that there would be no greater prejudice to the respondent caused by Ms Peachey’s application being listed now than there would have been had it been lodged in time. Consequently, I treated prejudice to the respondent was a neutral consideration.

The merits of the application-s.394(3)(e)

[16] In the matter of Kornicki v Telstra-Network Technology Group 2the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 3

[17] Further, I noted that, for the purpose of determining whether to grant an extension of time to the applicant to file his application, I “should not embark on a detailed consideration of the substantive case” 4 and, as such, I did not.

If the applicant can establish that there was no valid reason for the cessation of her employment then she may be able to establish that the termination of her employment was harsh, unjust or unreasonable and, consequently, unfair. In this regard the applicant’s case is not without merit or lacking in any substance.

Because the applicant’s case is not without merit or lacking in any substance this factor weighed in favour of granting her a further period to make her application.

Fairness as between Peachey and other persons in a similar position-S.394(3)(f)

[18] There was no issue of fairness in relation to any other person in a similar position.
[19] Having considered all of the matters to which my attention is directed by the Act I was not satisfied, in the exercise of my discretion, that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application. Ms Peachey’s circumstances were not out of the ordinary course, unusual, special or uncommon.
[20] Her application for an extension of time was refused and her substantive application for unfair dismissal remedy was dismissed.

COMMISSIONER

 1 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [14].

 2   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 3   Ibid.

 4 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

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