Melissa Pearce v Ed Oates Pty Ltd

[2016] FWC 2168

[2016] FWC 2168

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melissa Pearce
v
ED Oates Pty Ltd
(U2016/5329)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 7 APRIL 2016

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

[1] Ms Pearce 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 ED Oates Pty Ltd (Oates). At a telephone conference convened on 7 April 2016 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] Ms Pearce’s application was lodged on 14 March 2016. In that application Ms Pearce advised that she became aware of the termination of her employment on 18 February 2016 when that termination took effect. In her application, Ms Pearce advised that the application was lodged outside of the 21 day time limit and provided the following reasons for this delay:

“The reason Im lodging at day 25 rather than day 21 is that as a result of being made redundant I endured certain hardships

1. I had a phone and car as ‘tools of trade’-these had to be returned so my ability to access relevant services was delayed.

2. I live in a semi rural location out of town, so I had to organise transport (there is not any public transport) a phone and internet connection.

3. I was not given any opportunity to dispute this decision.” 1 (sic)

[3] On 16 March 2016 my Associate corresponded with both Ms Pearce and Oates and advised that the extension of time issue would be considered through a telephone conference on 7 April 2016. Substantial information about the extension of time issue was provided to the parties. Ms Pearce was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 31 March 2016.

[4] Following a reminder being sent to Ms Pearce on 4 April 2016 she provided advice on 5 April 2016 in the following terms:

“I was presented with my redundancy paper work on thursday 18th February at 2.00pm. I was still expected to finish my duties that day. I became unemployed on 19th February.

However due to unexpected family circumstances I had to vacate from 134 Deloraine Rd Kersbrook and relocate to X XXXXX XXXX XXXXX XXX XX XXXX.
My attached Lease clearly shows the commencement date of 26 February 2016.

So As I had to return my company car and mobile phone and make arrangements for replacements as well as move 80 kilometres away.

My husband does not work and has not worked since he nearly cut his finger off on boxing day 2014.

The 21st calender day after my redundancy was Friday 11th March. I submitted on Monday 14th March.
This has been a highly stressful time for my family and I do not believe that submitting one business day late will prejudice my former employer at all.” 2

(current address deleted)

[5] The Employer’s Response to the application indicated that Oates opposed the extension of time and also asserted that the termination of Ms Pearce’s employment was a case of genuine redundancy.

[6] Ms Pearce participated in the telephone conference. Mr Tyler and Mr Buyers represented Oates. I note that a sound file record of this telephone conference was kept.

[7] Section 394 of the FW Act 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.”

[8] I have concluded that the application was made some 4 days outside of the 21 day time limit and 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 3 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.” 4

[9] In her application Ms Pearce advised that she had to return a telephone and her work car and, as she lived in a semi-rural location without public transport, a telephone or internet connection, she could not easily access information so as to be able to lodge the application. In her 5 April 2016 statement, Ms Pearce advised that she had to move to Murray Bridge, commencing from 26 February 2016, and had to make arrangements to replace both her company car and mobile phone. In the telephone conference on 7 April 2016 Ms Pearce clarified her position. She explained that she was shocked and stressed after the termination of her employment and was then preoccupied in arranging new accommodation for her family, a new car and telephone. She advised that she was aware of the capacity to make an application towards the end of February and then accessed the Fair Work Commission website to obtain further information. She initially thought she had 21 business days in which to lodge the application but later became aware that it had to be lodged within 21 calendar days. I have no doubt that Ms Pearce was very busy over this time but I am not satisfied that her circumstances in this respect can be regarded as exceptional such that I should extend the time for lodgement of the application. Ms Pearce had arranged alternative accommodation, a vehicle and a mobile phone within a timeframe which allowed her to lodge the application in time. To the extent that Ms Pearce advised that she did not have access to a computer to download the relevant forms, I am not satisfied that this explains why the application could not have been lodged earlier. Ms Pearce’s advice is that she accessed the website within the time limit but initially thought she had 21 business days in which to lodge the application. Thirdly, Ms Pearce advises that she was not given the opportunity to dispute the termination decision. This does not explain the delay. Consequently, I am not satisfied that Ms Pearce has established that the reasons for the delay represent any form of exceptional circumstance.

[10] Ms Pearce became aware of the termination of her employment on the day upon which it took effect.

[11] I am not satisfied that, apart from the late lodgement of this application, Ms Pearce took other action to dispute the termination of her employment.

[12] Oates does not argue the issue of prejudice. Notwithstanding this, the absence of prejudice does not form a basis for an extension of time.

[13] In terms of the merits of the application, Ms Pearce and Oates disagree over the extent to which all of the requirements for a genuine redundancy were met in this instance. The information before me does not enable a definitive conclusion relative to the merits of the application. Consequently, I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

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

[15] Accordingly I have concluded, on balance, that the material before me does not establish that Ms Pearce’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application must be dismissed accordingly and an Order (PR578776) giving effect to this decision will be issued.

Appearances (by telephone):

M Pearce on her own behalf.

M Tyler and L Buyers for the respondent.

Hearing (Conference) details:

2016.

Adelaide:

April 7.

 1   Form F2, para 1.4

 2   Submission of Ms Pearce, by email 5 April 2016

 3   [2011] FWAFB 975 (16 February 2011)

 4   Ibid at [10]–[13]

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