Maxine Harrower v SIDs & Kids NSW and Victoria or SIDs & Kids (Australia) Limited T/A SIDs & Kids

[2016] FWC 1075

[2016] FWC 1075

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maxine Harrower
v
SIDS & Kids NSW and Victoria or SIDS & Kids (Australia) Limited T/A SIDS & Kids
(U2015/16989)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 19 FEBRUARY 2016

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 Harrower and the respondent ended on 30 October 2015. Ms Harrower lodged her application at the Fair Work Commission on 17 December 2015. Ms Harrower’s application was lodged 26 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Ms Harrower. I wrote to Ms Harrower on 23 December 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 Howard did not provide a statement but instead relied on the extensive material provided in her application. I issued an Order refusing her application for an extension of time and dismissed her application on 10 February 2016.

[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 s394 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 s394 (3) 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 Harrower provided for her delay in lodgement are set out below.

1. “The applicant is based in the Sydney area but was advised of her termination on 30 October whilst in Melbourne.
2. The applicant had herself paid for and enrolled on leadership values course in Melbourne at a cost of $2000.00, which commenced on the evening of 30 October 2015 and did not finish until Tuesday 3 November 2015. This course was also based in Melbourne and the applicant had booked it knowing that she would be in Melbourne at this time for the professional development day above mentioned.

3. The applicant during her time at SIDS and Kids had been in close talks with a couple in Melbourne who wished to renovate a farm stay and donate the premises to SIDS & Kids as a retreat for families who had lost babies or children. The applicant had spent considerable time with the couple, was their main point of contact at SIDS and Kids and had formed a close bond with them. She had agreed that as soon as the leadership values course had finished she would attend the Farm stay as a volunteer and would assist them in the renovation and set up of the farm stay.

4. On 3 November 2015 following the conclusion of the leadership values course the applicant travelled to the farm stay and assisted in renovation. This included painting, gardening, purchasing supplies and preparations for the opening ceremony The applicant remained at the farm until 9 November 2015.

5. On 9 November 2015 the applicant returned to Sydney in order to obtain items she was personally donating to the farm stay, with the intention of returning to the farm stay on 1 December 2015 in order to assist again in the opening of the farm stay.

6. The applicant was only permitted access to the Sydney Office in order to obtain her belonging on 18^th November

7. The official date for opening the farm stay was 6 December 2015 and was attended by the applicant. The applicant left the following day and drove back to Sydney, arriving late on 7 December 2015.

8. The applicant made an appointment with ourselves for legal advice on 8 December 2015 and provided with instructions to lodge an application and also apply for an extension of time.

9. At all times during her volunteering at the farm stay following her dismissal the applicant was aware that the farm stay was being donated to SIDS & Kids but continued to volunteer in any event. The applicant instructs that this was borne from a passion for the organisation and also there was a part of her that felt that perhaps matters could still be resolved and she could be reinstated.

10. The applicant having had multiple losses herself holds the organisation very close to her heart as such she was completely distraught at the dismissal and how it was conducted.

11. The applicant instructs that since the dismissal she has been an “emotional wreck”, and spends the majority of her day crying when she thinks how she has been treated. As such the applicant failed to take action for her unfair dismissal until now.

12. The applicant as she is herself a counsellor felt that she should have the requisite knowledge be able to cope on her own. She has since sought medical and counselling for support for the stress she has been put under.”

[9] While sympathetic to these circumstances I was not persuaded that Ms Harrower’s difficulties were out of the ordinary, unusual or uncommon.

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

[10] Ms Harrower became aware of the end of her relationship with the respondent on 30 October 2015.

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

[11] Ms Harrower disputed her dismissal by lodging this application.

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

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

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

[13] Merit was a neutral issue in my consideration of this application.

fairness as between Ms Harrower and other persons in a similar position-S.394(3)(f)

[14] There was no issue of fairness in relation to any other person in a similar position.

[15] Having considered all of the matters to which my attention is directed by the Act I was not satisfied 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 Harrower’s circumstances were not out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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