Megan Lenehan v South West Healthcare T/A South West Healthcare Warrnambool

[2016] FWC 57

[2016] FWC 57

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Megan Lenehan
v
South West Healthcare T/A South West Healthcare Warrnambool
(U2015/2593)

DEPUTY PRESIDENT KOVACIC CANBERRA, 5 JANUARY 2016

Application for relief from unfair dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application – application dismissed.

[1] Ms Megan Lenehan (the Applicant) made an application on 27 January 2015 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment on 14 December 2014 was harsh, unjust and unreasonable. On 2 March 2015, South West Healthcare T/A South West Healthcare Warrnambool (South West - the Respondent) objected to the application on the grounds that it had been made outside the 21 day timeframe specified in s.394(2) of the Act. The application was received by the Fair Work Commission (the Commission) 23 days outside the 21 day statutory timeframe.

[2] On 27 February 2015 a timetable outlining the requirements for the filing of an outline of argument and any evidentiary material to be relied on was sent to the parties. Amended directions were issued on 10 April 2015. The matter was listed for a hearing on 30 April 2015 but the parties agreed that the jurisdictional objection should be dealt with on the papers.

[3] Ms Lenehan provided a witness statement on her own behalf, supported by witness statements from Ms Merryl Freemantle, an Information Officer with the Australian Nursing and Midwifery Federation (ANMF); Ms Linda Elliott, an Industrial Relations Organiser with the ANMF; Mr Andrew Prendergast, an Industrial Officer with the ANMF; and Mr Peter Birch, an Industrial Relations Organiser with the ANMF. Ms Amy Hilton, South West’s Staff Health and Wellbeing Manager, and Ms Erin Weston, South West’s Remuneration Manager, provided witness statements on behalf of the Respondent.

[4] For the reasons outlined below I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, the application cannot proceed and is therefore dismissed.

Background

[5] Ms Lenehan commenced employment with South West in 1985 where she worked as a registered nurse and midwife. In or around 2009 Ms Lenehan injured her shoulder at work. The injury came on top of a number of other injuries/medical conditions which Ms Lenehan suffered/had. At the time of her injury, Ms Lenehan held the position of Associate Unit Manager (AUM) in the Maternity Unit.

[6] Following the injury, Ms Lenehan performed modified duties until about 2011. During this period, South West obtained medical evidence from a number of sources regarding Ms Lenehan’s capacity to continue to perform her role as AUM. That evidence suggested that Ms Lenehan’s injury together with her other medical conditions were likely to continue to limit her capacity to resume the full duties of her role as AUM.

[7] In 2011 Ms Lenehan successfully applied for the position of Clinical Educator, Maternity. The position was offered on a part-time fixed term contract basis. The position was offered on a fixed term basis as it was subject to annual funding approval. Among other things, the letter of offer stated as follows:

“As discussed at interview, this fixed term appointment is for the period from Monday, 31 October 2011 to Saturday, 30 June 2012 only, at which point you will revert to your substantive position of 48 hours per fortnight as Associate Unit Manager Maternity Unit.” (No emphasis added)

[8] On 27 June 2012 Ms Lenehan was offered the same position for the following financial year, though her hours of work had been reduced from 48 to 32 hours per fortnight. The letter of offer again included the above paragraph, the only difference being the dates referred to. Ms Lenehan accepted the offer on 12 July 2012.

[9] On 5 June 2013 and 7 July 2014, Ms Lenehan was offered an extension of her current employment contract, with the initial extension being until 28 June 2014 and the subsequent extension being until 14 December 2014. Significantly, both of the letters offering that contract extension did not include the abovementioned paragraph.

[10] South West submits that Ms Lenehan was advised at the time of the final contract extension that her contract would not be extended beyond 14 December 2014. Ms Lenehan disputed that this was the meaning of the letter of 7 July 2015 and at the time sought advice from the ANMF. While the ANMF subsequently held discussions with South West, it was unclear to the ANMF that Ms Lenehan had a substantive contract underpinning her fixed-term contract variations.

[11] Ms Lenehan submits that, consistent with the basis on which she was offered the part-time fixed term role, it was her expectation that the end of her final contract extension she would have returned to her substantive position as AUM. South West contends that it was always understood by both parties that Ms Lenehan would not, or would be very unlikely to, resume as AUM.

[12] At the conclusion of that contract on 14 December 2015, Ms Lenehan’s employment ceased.

[13] In the lead up to the cessation of her employment, Ms Lenehan again contacted the ANMF to discuss her situation. On 2 December 2014 the ANMF asked Ms Lenehan to provide it with copies of her contract variations. Ms Lenehan subsequently requested copies of the contract variations from South West and received them on or about 11 or 12 December 2014, i.e. just before she ceased work with South West.

[14] Ms Lenehan went to Melbourne for the weekend of 13 and 14 December 2014 where she suffered a serious injury to her right hand which involved damage to the hand’s nerves, tendons, bones and skin. As the ANMF had made no mention of any timeframe for pursuing her employer in relation to the dismissal Ms Lenehan concentrated on recovering from her injury. Her hand injury later developed an infection.

[15] On 28 December 2014 Ms Lenehan sent an email to the ANMF advising of her injury, stating that she had scanned copies of her contract variations ready to email to the ANMF and requesting clarification as to who she should email the documents. Ms Lenehan’s email was not read by the ANMF until 5 January 2015 after the Christmas/New Year close down. The ANMF responded that day stating that the documents should be forwarded to Mr Birch. On 13 January 2015 Ms Lenehan forwarded her email of 28 December 2014 to Mr Birch. Mr Birch responded asking whether there was supposed to be an email to that attachment. Ms Lenehan replied shortly thereafter stating that she had the contracts but was unable to send them until she could access a computer to download them and send, stating that she hoped to do so sometime during the week.

[16] Ms Lenehan eventually dropped the documents off at Mr Birch’s office in Warrnambool on 20 January 2015. The material was forwarded to Mr Birch in Melbourne by his office in Warrnambool the following day. On reading the material Mr Birch formed the view that the contract variations did not necessarily give South West the right to terminate Ms Lenehan’s employment and that the termination was probably a case of unfair dismissal. He forwarded the material to Mr Prendergast on 23 January 2015 after which it went through the ANMF’s internal processes before being referred to the ANMF’s solicitors. The matter was forwarded to the ANMF’s solicitors on 27 January 2015, with Ms Lenehan’s application lodged later that day.

[17] As noted above, Ms Lenehan lodged her unfair dismissal application on 27 January 2015, 23 days outside the 21 day statutory timeframe specified in s.394(2) of the Act.

The Applicant’s case

[18] Ms Lenehan disputes South West’s right to terminate her employment at the conclusion of her last contract extension. As previously mentioned, Ms Lenehan submits that, consistent with the basis on which she was offered the part-time fixed term role, it was her expectation that the end of her final contract extension she would have returned to her substantive position as AUM.

[19] As to the existence of exceptional circumstances, Ms Lenehan relies on representative error as the reason for the delay in lodging her application.

[20] In her witness statement, Ms Lenehan detailed the chronology of her contract variations, her contact with the ANMF in the lead up to the cessation of her employment and the chronology of events leading up to the lodging of her unfair dismissal application. That outline of events is consistent with the background outlined above.

[21] Key aspects of Ms Lenehan’s evidence were that:

• she contacted the ANMF information line on 2 December 2014 to seek advice when it was suggested that she obtain copies of the contracts and forward them to the ANMF;



• as she did not have copies of the documents, she asked South West to provide copies which she received around 11 or 12 December 2014;



• she dropped off copies of the contract variations to Mr Birch’s office in Warrnambool on 20 January 2015;



• having not subsequently heard from Mr Birch she rang him on 27 January 2015 to see what the ANMF’s view was about the contracts;



• during that conversation Mr Birch mentioned the 21 day time limit for pursuing an unfair dismissal claim;



• this was the first time she had heard of the 21 day time limit for lodging an unfair dismissal application; and



• had she known about the 21 day time limit she could have made arrangements, despite her hand injury, to have the relevant documents sent on to the ANMF for evaluation and advice shortly after injuring her hand.

[22] Ms Freemantle, Ms Elliott and Messrs Prendergast and Birch set out in their respective witness statements a chronology of their involvement with Ms Lenehan’s case. Again, those chronologies are consistent with the outline of events in the Background section above. I set out below some key aspects of their witness statements.

(i) Ms Freemantle deposed that:

• when Ms Lenehan contacted the ANMF’s information line on 2 December 2014 she thought that Ms Lenehan’s circumstances may involve a breach of clause 37 of the Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2012-2016 1 (the Agreement) which provides that fixed term employment may only be used for true fixed term arrangements;

on 10 December 2014 she called Ms Lenehan and left a message asking her to provide the copies of her contract variation to Ms Elliott (the Relieving Organiser for the Warrnambool area);

Ms Lenehan returned her call later that day;

also on that day Mr Prendergast emailed Ms Elliott asking her to get copies of the contract variations from Ms Lenehan and discuss them with him; and

in her discussions with Ms Lenehan she did not mention the 21 day statutory timeframe for lodging an unfair dismissal application.

(ii) Ms Elliott attested that:

• at no point had anyone mentioned to her that Ms Lenehan’s case was an unfair dismissal matter and that therefore there was an urgency about obtaining copies of the contract variations from Ms Lenehan given the 21 day statutory timeframe; and



• she did not hear from Ms Prendergast prior to Mr Birch’s return from leave on 15 December 2014.

(iii) Mr Prendergast stated that:

• on 10 December 2014 his preliminary view, subject to seeing Ms Lenehan’s actual contracts, was that Ms Lenehan had been employed on a number of fixed term contracts, with the current contract expiring that month;



• at that time he was also aware of Mr Birch’s view that there had developed a practice at South West of using short term contracts beyond the circumstances envisaged in clause 37 of the Agreement;



• on 15 December 2014 he emailed Mr Birch and asked to him to contact Ms Lenehan and obtain from her copies of the requested contracts so that the facts about her contractual situation could be established;



• when he returned from annual leave on 5 January 2015 he was advised that there had been no contact from Ms Lenehan;



• on 22 January 2015 he received an email from Mr Birch which had attached to it Ms Lenehan’s contracts, stated that Ms Lenehan had been very tardy in supplying the requested documentation and indicated that he would be obtaining further instructions from Ms Lenehan;



• on 23 January 2015 after reviewing the contracts he agreed that the matter should be referred for legal advice as to a possible unfair dismissal application and an application for an extension of time based on Ms Lenehan’s hand injury; and



• he understood the matter was referred to the ANMF’s solicitors on 27 January 2015 following final sign-off by the ANMF’s Assistant Secretary.

(iv) Mr Birch deposed that:

• he first recalled Ms Lenehan contacting him in late July 2014 regarding what her employment status would be when her contract variation concluded in December 2014;



• based on what Ms Lenehan told him he took the view that she was employed on a temporary contract and that at the completion of the contract there was little that she could do about the termination of her employment unless she found an alternative position;



• he heard nothing more from Ms Lenehan regarding the matter prior to commencing annual leave in late November 2014;



• while he could not recall speaking to Ms Lenehan after he returned from leave on 15 December 2014, he expects he would have done so;



• other than the email exchange he had with Ms Lenehan on 13 January 2015 (see paragraph [15] above) he did not hear from Ms Lenehan until 20 January 2014 when she indicated that she would drop off copies of her contract variations to his office in Warrnambool;



• he received copies of those documents in Melbourne the following day; and



• having examined the documents he considered the situation to be one of probable unfair dismissal.

The Respondent’s case

[23] South West opposed the request for an extension of time, submitting that none of Ms Lenehan’s circumstances, whether taken together or singularly, were enough to constitute exceptional circumstances. South West further submitted that there was nothing out of the ordinary, unusual, special or uncommon about Ms Lenehan’s situation, adding that not only was the delay in lodging her application significant but that there was no acceptable explanation for most, if not all, of the 23 day delay. South West also contended that the threshold for representative error had not been met and that Ms Lenehan’s conduct contributed significantly to the delay.

[24] Ms Hilton deposed that she continued to have a role in monitoring Ms Lenehan’s fitness for work and ongoing physical restrictions after Ms Lenehan was appointed to the Clinical Educator position. Ms Hilton further deposed that over the period 2011 to November 2013 she had many discussions with Ms Lenehan concerning her role as Clinical Educator and that in those discussions Ms Lenehan always stated that she knew that the Clinical Educator position was not a permanent ongoing role and that at the completion of the role there would not be a position available to her. Ms Hilton also disputed Ms Lenehan’s statement that she was not aware at the time she agreed to her final contract extension that her employment would cease all together on 14 December 2014.

[25] In her witness statement Ms Weston set out, among other things, her discussions with Ms Lenehan over the period July to December 2014. In particular, Ms Weston deposed that:

• she met with Ms Lenehan on 4 July 2014;



• Ms Lenehan was very upset and crying during that meeting as she understood her contract was set to conclude;



• she recalled discussing various matters with Ms Lenehan, including the fact that Ms Lenehan’s employment would come to an end in December 2014;



• there was no discussion at that meeting about South West being obliged to find employment for Ms Lenehan in another position;



• she encouraged Ms Lenehan to apply internally for positions which she considered she could undertake;



• in October 2014 Ms Lenehan sent her an email enquiring about a potential alternative position with South West (the position was still under consideration at that time); and



• on 5 December 2014 Ms Lenehan sent her an email seeking clarification regarding the payment of her entitlements on termination of her employment.

The Relevant Legislation

[26] Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

394(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

394(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).394(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 first person 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.”

Whether to allow a further period for the application to be made under s.394(2)

[27] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[28] Ms Lenehan submits that the delay was caused as a result of errors by her representative, the ANMF. In particular, Ms Lenehan submitted that the ANMF had failed to properly consider that the cessation of her employment may have been an unfair dismissal and as a result failed to advise her of the 21 day time limit for lodging an unfair dismissal application. Ms Lenehan also submitted that, despite the injury to her hand, had she been aware of the 21 day timeframe she would have made arrangements to send the documents requested by the ANMF to it shortly after her injury. Further, Ms Lenehan contended that the ANMF had failed to act promptly when on 20 January 2015 it received the documentation from her.

[29] South West submitted in respect of Ms Lenehan’s reliance on representative error as the reason for the delay that:

• the evidence before the Commission did not disclose the existence of representative error during the 21 day statutory timeframe or the subsequent 23 day period;



• even if there was representative error in respect of some or all of the delay, it was not a sufficient reason; and



• Ms Lenehan is not blameless as the delay was occasioned predominantly, or in large part, by her inaction.

[30] South West further submitted that:

• there was no evidence from Ms Lenehan that she gave any clear direction to the ANMF to act on her behalf in relation to an unfair dismissal application, or to lodge such an application on her behalf;



• Ms Lenehan did not respond to the ANMF’s request for further documentation until 20 January 2015 some six weeks after the ANMF had first asked for such information on 10 December 2014;



• there was no communication between Ms Lenehan and the ANMF from 5 to 20 January 2015;



• there was no evidence of Ms Lenehan checking on the progress of her application with the ANMF; and



• in circumstances where Ms Lenehan knew that her employment would end on 14 December 2014, her delay in responding to the ANMF’s requests for information is amplified.

[31] The material before the Commission indicates that:

• Ms Lenehan was first asked to provided copies of her contract variations by the ANMF on 2 December 2014;



• the request was reiterated on 10 December 2014;



• Ms Lenehan was received copies of those documents on or about 11 or 12 December 2014;



• Ms Lenehan injured her hand on 13 December 2014;



• on 5 January 2015 Ms Lenehan was advised by the ANMF to forward the copies of her contract variations to Mr Birch;

• Ms Lenehan did not provide the copies of the documents to the ANMF until 20 January 2015;



• only after reviewing those documents on 21 January 2015 did the ANMF form the view that Ms Lenehan’s situation was one of a probable unfair dismissal;



• other than contacting the ANMF on 27 January 2015 to see what the ANMF’s view was about the contracts, Ms Lenehan did not make any inquiries as to the status of her case;



• Ms Lenehan first became aware of the 21 day statutory timeframe for lodging an unfair dismissal application from Mr Birch on 27 January 2015;



• the ANMF did not refer the matter to its solicitors until 27 January 2015; and



• Ms Lenehan’s application was lodged later that day.

[32] The above summary indicates that much of the delay in lodging Ms Lenehan’s application stems from the time it took for her to provide the ANMF with copies of her contract variations. As noted above, while copies of these documents were first requested by the ANMF on 2 December 2014 they were only provided to it by Ms Lenehan on 20 January 2015 despite Ms Lenehan having received them on 11 or 12 December 2014. While Ms Lenehan’s hand injury undoubtedly contributed to some of that delay in providing the documents, other than a letter from her hand surgeon dated 16 December 2014 to presumably Ms Lenehan’s doctor advising him that he had operated on Ms Lenehan on that day, no medical evidence was provided indicating that Ms Lenehan was incapacitated for the entirety of this period. Against that background, I am not satisfied that Ms Lenehan has provided an explanation for the entirety of this period. As the Full Bench in Cheval Properties Pty Ltd (T/A Penrith Hotel Motel) v Smithers 2 concluded, a credible reason must be provided for the entire period of the delay.

[33] As to Ms Lenehan’s reliance on representative error, that issue of was considered by a Full Bench of the then Fair Work Australia in M N Robinson v Interstate Transport Pty Ltd (Robinson) 3 which observed as follows:

“[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.

[25] The approach in Clark’s Case was summarised in Davidson’s Case as follows:

“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”” (Citations not included, underlining added)

[34] As noted above much of the delay in lodging Ms Lenehan’s application stems from the time it took for her to provide the ANMF with copies of her contract variations. Against that background and drawing on the language in Robinson, it cannot be said that Ms Lenehan was blameless in the delay in lodging her application. It is also noteworthy that the ANMF did not form a view that Ms Lenehan’s termination was a probable case of unfair dismissal until 21 January 2015 once Mr Birch had reviewed the documents provided by Ms Lenehan. While this provides a basis for claiming representative error for the period 20 to 27 January 2015, it does not support a finding that representative error was the reason for the delay up until 20 January 2015. Indeed it appears that the ANMF’s preliminary views, based on the information provided by Ms Lenehan, were that either her contract had come to an end through the effluxion of time or, alternatively, South West’s use of fixed term contracts was potentially inconsistent with the terms of the Agreement.

[35] Finally, the material before the Commission indicates that at no stage prior to 27 January 2015 did Ms Lenehan contact the ANMF to follow up on the status of her case. Ms Lenehan’s evidence was that when she did so it was to see what the ANMF’s view was about the contracts. This does not suggest that Ms Lenehan had issued clear instructions to the ANMF to lodge an unfair dismissal application on her behalf. Again drawing on the language in Robinson, Ms Lenehan’s conduct in the lead up to her application being lodged with the Commission does not support a finding of representative error.

[36] The above analysis does not support a finding of the existence of exceptional circumstances.

(b) Whether the first person became aware of the dismissal after it had taken effect

[37] Ms Lenehan did not directly address this factor in her submissions. However, the fact that Ms Lenehan contacted the ANMF’s information line on 2 December 2014 to seek advice regarding the imminent cessation of her employment and contacted Ms Weston on 5 December 2014 to enquire about the payment of her entitlements on termination suggests that Ms Lenehan was aware of her dismissal before it took effect.

[38] South West submitted that Ms Lenehan was aware from in or around May or July 2014 that her employment would end on 14 December 2014. This, South West contended, meant that Ms Lenehan not only had the benefit of the 21 day statutory period but also the preceding months to obtain advice and act on the purported dismissal. This it submitted weighed against the granting of an extension of time.

[39] The circumstances in this case do not support a finding of exceptional circumstances.

(c) Any action taken by the person to dispute the dismissal

[40] Again Ms Lenehan did not directly address this factor in her submissions.

[41] South West submitted that at no stage did Ms Lenehan advise it that she intended to dispute her dismissal, adding that despite conversations about applying for other roles in the lead up to the cessation of her employment Ms Lenehan never indicated that she wished to return to or was physical capable of returning to the AUM role.

[42] In the circumstances I consider this factor to be a neutral consideration.

(d) Prejudice to the employer (including prejudice caused by the delay)

[43] Ms Lenehan submitted that South West was not prejudiced as a result of the late lodgement of her application.

[44] South West did not submit that it would be prejudiced were an extension of time granted, though it did submit that it would be severely prejudiced were an extension of time granted and Ms Lenehan ultimately reinstated as a result of a finding that she was unfairly dismissed.

[45] In the absence of any evidence of prejudice to South West, I consider this factor to be a neutral consideration.

(e) The merits of the application

[46] Ms Lenehan submitted that there was no valid reason for her dismissal and that as such her application has merit. In doing so, Ms Lenehan disputed South West’s contention that as its letter of offer of 23 July 2014 makes no mention of Ms Lenehan reverting to the AUM role at the end of the contract that she should have had no expectation of returning to that role, pointing out that as the letter referred to “an extension of your current employment contract” regard must be had to the origin of the contractual provision that was being extended.

[47] In her reply submission, Ms Lenehan agreed with South West that the issues in this case are highly contested and that as a result this factor should be regarded as a neutral consideration.

[48] South West submitted that Ms Lenehan’s application was “devoid of merit.” South West also submitted that in circumstances where the issue of merit is highly contested, this factor should be regarded as a neutral consideration.

[49] Based on the material before the Commission it is clear that a number of key issues are disputed. Therefore in the absence of a substantive hearing of the evidence, I am unable to form a view as to the merits of the application. Accordingly, I consider this factor to be a neutral consideration.

(f) Fairness as between the person and other persons in a similar position

[50] Ms Lenehan did not address this factor in her submissions.

[51] South West contended that this factor should be regarded a neutral consideration.

[52] Against that background, I consider this factor to be a neutral consideration.

Conclusion

[53] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 4 (Nulty) in the following way:

“[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.”

[54] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I find that there are no exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy. Accordingly, the application cannot proceed and is therefore dismissed. An order to that effect will be issued with this decision.

 1   AE895073

 2 (2010) 197 IR 403 at paragraph 20

 3 (2011) 211 IR 347

 4 (2011) 203 IR 1

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