Melanie Harriss v The War Veterans Home Myrtle Bank Incorporated T/A RSL Care SA

[2015] FWC 4687

[2015] FWC 4687

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melanie Harriss
v
The War Veterans Home Myrtle Bank Incorporated T/A RSL Care SA
(U2015/8320)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 10 JULY 2015

Application for relief from unfair dismissal - extension of time not granted.

[1] Miss Harriss has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with The War Veterans’ Home Myrtle Bank Incorporated T/A RSL Care SA (the War Veterans’Home). At a telephone conference convened on 9 July 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion

[2] Miss Harriss’ application was lodged on 10 June 2015. In that application Miss Harriss advised her employment was terminated with effect from the first week in October in 2013. In her application, Miss Harriss provided the following explanation for the delay in lodging the application:

“Delay was due to shock of termination of employment for unreasonable statements due to family members and staff not liking me.
I believe I was in disbelief at the time and because it has happened again at another Aged Care Facility with the same reasons, I find it unfair as this may and I believe has ruined my nursing career.” 1

[3] On 18 June 2015 my Associate corresponded with both Miss Harriss and the War Veterans Home and advised that the extension of time issue would be considered through a telephone conference on 9 July 2015. Substantial information about the extension of time issue was provided to the parties. Miss Harriss was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 2 July 2015.

[4] Additional information was received from Miss Harriss. This information largely went to the merits of her application but addressed the late lodgement of the application in the following terms:

“The reason I have forwarded a notice out of the 21 days and it is late is because I was recently immediately terminated from employment at another Aged Care Facility with only two weeks of employment stating similar reasons. I find this to be odd and unfair treatment that this would happen again within a 26mth ratio with the Aged Care Nursing industry.

Due to only being employed, overall a total of 6 ½mths during a period of 26mths due to foolish allegations about my work performance at War Veterans Home, this has caused considerable financial hardship upon me and my family.
Resulting upon these unfortunate employment terminations, my two sons have had to move elsewhere to live because I could not financially support them due to applying to numerous Aged Care Facilities throughout the Adelaide metropolitan region and unfortunately being unsuccessful with all applications since the termination of employment at War Veterans Home.” 2

[5] It is also appropriate that I note that, at the same time as Miss Harriss lodged this application, she also lodged another unfair dismissal application which has been dismissed on the basis that she had not completed the requisite minimum employment period. 3

[6] The Employer’s Response to the application confirmed the full name of the employer. I have utilised the discretion in s.586 of the FW Act to amend the application accordingly. That Employer’s Response indicated that the War Veterans’ Home opposed the extension of time on jurisdictional grounds. The War Veterans’ Home asserted that the application was lodged outside of the 21 day time limit and opposed any extension of that time limit. Further, the War Veterans’ Home asserted that Miss Harriss’ employment did not meet the requirements of the minimum employment period in that she commenced employment on 29 April 2013 and was dismissed on 15 October 2013. The War Veterans’ Home also provided additional material going to the merits of the application.

[7] Miss Harriss participated in the telephone conference. Ms Romeo appeared for the War Veterans’ Home. My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[8] 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.”

[9] On the information before me I am satisfied that the application was made approximately one year and eight months outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 4 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.”

[10] Miss Harriss’ reasons for the delay referred to her shock and disbelief associated with the termination of her employment. In the conference, Miss Harriss confirmed that her more recent dismissal from another aged care facility prompted her to pursue this matter in that, while she disagreed with the termination of her employment with the War Veterans’ Home, she did not take action to dispute that because she preferred to obtain alternative employment. It was only when she was more recently dismissed by another employer, for similar reasons, that she then considered an application of this nature to be necessary. These reasons for the very long delay in the lodgement of this application do not meet the requirements for an exceptional circumstance. The FW Act establishes a 21 day time limit for an unfair dismissal application to be lodged. Ms Harriss should have acted within that time if she believed her dismissal to be unfair. I am satisfied that Miss Harriss was aware of the termination of her employment on the day it took effect. That information is confirmed in the Employer’s Response and was not disputed by Miss Harriss in the conference. Miss Harriss agrees that she did not pursue other actions so as to challenge the termination of her employment. I consider that an extension of time of this substantial magnitude would most likely prejudice the War Veterans’ Home.

[11] In terms of the merits of the application, the information before me establishes that Miss Harriss commenced employment with the War Veterans’ Home on 29 April 2013 and was dismissed on 15 October 2013. The War Veterans’ Home advised that it employed 180 employees at the time of the termination of Ms Harriss’ employment. Section 382 of the FW Act specifies that a person is protected from unfair dismissal if, amongst other things, the person had completed a period of employment of at least the minimum employment period. That minimum employment period is defined in s.383 as being six months. Miss Harriss had not completed six months employment with the War Veterans Home at the time of the termination of her employment. Accordingly, she is not able to pursue this application in any event and there would appear to be no utility in the further consideration of this application.

[12] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[13] Accordingly I have concluded that the material before me does not establish that Miss Harriss’ circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR569281) giving effect to this decision will be issued.

Appearances (by telephone):

M Harriss on her own behalf.

M Romeo for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

July 9.

 1   Form F2, para 1.4

 2   Applicant’s Submissions, paras 3.1 and 3.2

 3   See [2015] FWC 4680

 4   [2011] FWAFB 975

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<Price code C, PR569280>