Marijka Wallam v Textile Traders

[2017] FWC 1456

[2017] FWC 1456

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marijka Wallam
v
Textile Traders
(U2016/15220)

COMMISSIONER PLATT ADELAIDE, 14 MARCH 2017

Application for relief from unfair dismissal – extension of time – application dismissed.

[1] Ms Wallam has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Textile Traders which took effect on 29 November 2016.

[2] This application was lodged on 21 December 2016.

[3] Ms Wallam’s application did not identify or provide an explanation for the failure to lodge the application within 21 days from the dismissal.

[4] Textile Traders filed a F3 Employer Response on 27 January 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time and the applicant was not dismissed.

[5] On 13 February 2017, my Associate corresponded with Ms Wallam and Textile Traders and advised that the extension of time issue would be considered at a telephone conference on 28 February 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Ms Wallam was directed to provide a statement concerning the extension of time and any documents to be relied upon by 20 February 2017. Textile Traders was invited to file any material in reply by 24 February 2017.

[6] On 20 February 2017 at 8:55am, my Associate sent a reminder via email to Ms Wallam that any submissions in relation to the extension of time issue were due that day. Ms Wallam failed to file any submissions.

[7] On 21 February 2017 at approximately 12:35pm, my Associate telephoned Ms Wallam and left a voice message requesting her to call my Chambers.

[8] On 22 February 2017 at 12:24pm, my Associate sent an email to Ms Wallam, reminding her that she bears the responsibility for demonstrating that an extension of time should be granted and that a failure to provide any material may result in the Commission determining the matter on the papers.

[9] On 27 February 2017 at 11:18am, Ms Wallam emailed my Chambers explaining that she did not have phone credit, internet or access to free WIFI and therefore was unaware that she had to file submissions. My Associate emailed a copy of the notice of listing, directions and two guides to her, followed by a telephone call. Ms Wallam confirmed that she had received the documents.

[10] On 24 February 2017, Textile Traders filed an Outline of Submissions.

[11] On 28 February 2017, Ms Wallam emailed my Chambers setting out her current personal situation, advising that she may not dial into the telephone conference and may no longer wish to pursue the application. My Associate responded to Ms Wallam and provided her with two options, both of which required her to attend the conference; the first was to request an adjournment, the second was to discontinue the matter.

[12] A hearing was conducted by way of telephone conference on 28 February 2017. A sound file record of the telephone conference was kept. Ms Wallam did not attend the hearing and Ms Millar of Australian Dismissal Services represented Textile Traders.

[13] At the telephone conference, Textile Traders relied on the submissions filed and contended that there were no exceptional circumstances on the basis that;

• Although Ms Wallam has not filed any submissions, statements or documents, it appears that her reason for the delay would be ignorance of the 21 day time limit which does not meet the test of exceptional circumstances.



• Ms Wallam resigned from her position on 29 November 2016 and as such it cannot be argued that she was unaware of the date on which her employment ceased.



• The resignation was accepted in writing by the Operations Manager on 29 November 2016 and Ms Wallam was paid two weeks in lieu of notice.



• There were discussions between Ms Wallam and the Operations Manager in relation to final pay, provision of a separation certificate and the offering of a statement of service. No efforts to retract the resignation were made by Ms Wallam.



• They would suffer prejudice in having to defend the claim if an extension were granted.



• Whilst not a small employer, Textile Traders does not employ dedicated human resources management specialists and as such would be required to allocate operational resources, time and cost in defending the claim.



• Whilst acknowledging that evidence of merit is not required at this stage, the application has been brought wholly without merit as there was no dismissal due to Ms Wallam’s voluntary resignation.



• There are no other persons who resigned and are comparable with Ms Wallam.

[14] 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.”

[15] Textile Traders have contended that the Unfair Dismissal application was lodged two days outside of the statutory 21 day time limit, however the facts reveal that the unfair dismissal application by Ms Wallam was made 1 day outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[16] At the conclusion of the conference of 28 February 2017, Ms Wallam, despite her non-attendance, was given a further opportunity to provide any submission in support of her application by 3 March 2017. The matter was listed for further hearing on 10 March 2017.

[17] On Friday 3 March 2017, Ms Wallam provided a submission summarised as follows;

● She was aware of the 21 day time limit but thought she was within it.

● The reason the application was made late was because she was stressed by the decision to resign, the treatment she suffered at work and as a result of her historical depression, PTSD and ADD.

● She was not thinking clearly and procrastinated whether to go ahead with the complaint.

● She was distracted and unfocussed and this exacerbated her ADD which affects her time management and perception.

[18] Ms Wallam attended the hearing on 10 March 2017 and reiterated her written submission. Ms Millar of Australian Dismissal Services, on behalf of Textile Traders, relied on her previous submission.

[19] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ 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.”

[20] The applicant was aware of the 21 day limit and contends that she was suffering from stress which arose in the past due to historical events and also because of the dismissal.

[21] Ms Wallam also submitted that she suffers from ADD which impacts on her time management and time perception. In support of this she filed a picture of a dexamphetamine bottle prescribed to Ms Marijka Wallam on 15 February 2017, an indistinguishable photo of what is alleged to be information about what she takes and who prescribes the medication and a link to a website which describes ADHD and time management.

[22] Ms Wallam contends that she procrastinated about the lodgement of the application and that she was distracted and unfocussed.

[23] Ms Wallam did nothing to pursue her claim until after the 21 day limit had expired.

[24] Stress as a result of a dismissal is not unusual and has been previously determined by the Commission not to constitute exceptional circumstances. 2

[25] Ms Wallam has provided insufficient evidence to establish that her medical condition prevented her from filing the application within time.

[26] Ms Wallam appears to have made a conscious decision to lodge the claim at the last minute.

[27] The applicant needs to provide a credible explanation for the entire period of the delay,³ but has not done so.

[28] I do not accept that the employer would be prejudiced by the lodgement being 1 day late and find that this is a neutral matter.

[29] As to the merits of the application, I am not able to form a definite conclusion whether the termination resulted from a resignation or was a constructive dismissal and, accordingly, I have regarded the merits of the application as a neutral factor.

[30] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[31] For the reasons I have set out above, I am not satisfied that Ms Wallam’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order 4 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Ms Wallam, the applicant.

Ms Millar of Australian Dismissal Services, on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

February 28, 10 March.

1 [2011] FWAFB 975

 2   See e.g. Rose v BMD Constructions Pty Ltd[2011] FWA 673; Simpson v Dongwha Timbers[2016] FWC 1818

3 Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

 4   PR590971

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<Price code C, PR590970>