Michelle Cockburn v Caltex Jurien Bay

[2017] FWC 4276

[2017] FWC 4276

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Michelle Cockburn
v
Caltex Jurien Bay
(C2017/4011)

COMMISSIONER PLATT ADELAIDE, 17 AUGUST 2017

Application to deal with contraventions involving dismissal – extension of time – application dismissed.

[1] Ms Michelle Cockburn has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that her employment was terminated by Caltex Jurien Bay on 19 June 2017 in contravention of the general protections provisions of the Act.

[2] The F8A Employer Response to the application confirmed the legal name of the employer as Clatworthy Jurien Bay Pty Ltd ATF The Clatworthy Jurien Bay Trust T/A Jurien Bay Service Station and Roadhouse (Caltex Jurien). I have utilised the discretion in s.586 of the Act to amend the application so as to properly identify the employer. Caltex Jurien is a Caltex Franchisee.

[3] This application was lodged on 20 July 2017.

[4] Ms Cockburn’s application explained the failure to lodge the application within 21 days from the dismissal as follows:

“The text message was received on the 19/06/2017, I then lodged a formal complaint with Caltex Australia and they advised that they would send a letter to Wade (Caltex Jurien Bay) requesting a please explain giving him 30 days to respond, today 20/07/2017 I received a call from headoffice (sic) HR stating that Wade has failed to respond to their letter, suggested that I lodge complaint with Fair Works as they will now give Wade another 30 days to respond to a letter Caltex Australia will now send from their independent lawyers.”

[5] Caltex Jurien filed a F8A Employer Response on 5 August 2017 and raised a jurisdictional objection on the basis that the applicant was employed on a causal basis and had made herself unavailable for rostered shifts. The Commission identified that the application appeared to have been lodged out of time.

[6] On 28 July 2017, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 14 August 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 Cockburn and Caltex Jurien were directed to provide an outline of argument by 7 August 2017.

[7] Ms Cockburn provided a written submission summarised as follows:

● In relation to the merits of the application, she received a text message from Taryn stating that she had been removed from the roster for the remainder of the week. She telephoned Wade immediately, who returned her call and informed her in a rude manner that he was spending a lot of money training her when he had heard that she could up and leave if another job presented.
● She lodged a formal complaint with the HR department of Caltex on 20 June 2017. She was advised that Caltex would send a please explain letter to Wade giving him 21 days to respond.
● On or around the 24^th day, Fiona from Caltex telephoned Ms Cockburn and informed her that Wade had failed to respond to the letter and further advised that she should contact ‘Fair Works’.
● The complaint is still currently being investigated by Caltex.

[8] Caltex Jurien filed a written submission summarised as follows:

● In terms of the merits of the application, Ms Cockburn was employed on a casual basis and was undergoing training in relation to all aspects of the business. Ms Cockburn made a request that she preferred morning shifts after the roster for the following week was issued. Therefore, she was taken off the roster to accommodate her request. Ms Cockburn was unhappy with this and sent a text message stating that she had changed her mind. She subsequently resigned via text message stating “ … I will request that all my details be removed from your systems effective immediately, thank you both for the not so pleasant “Caltex experience”, I will arrange to have the shirt and name badge returned”.
● Ms Cockburn took no steps to dispute the dismissal with Caltex Jurien.

[9] A hearing was conducted by way of telephone conference on 14 August 2017. A sound file record of the telephone conference was kept. Ms Cockburn represented herself and Ms Clatworthy represented Caltex Jurien.

[10] Ms Cockburn’s position is summarised as follows:

● On 19 June 2017, she received a communication that she would not be offered further shifts.
● On 19 June 2017, she had a conversation with Wade from Caltex Jurien who advised her that she would not be offered further shifts in an abrupt and rude manner.
● On 20 June 2017, she contacted Fiona at Caltex and complained about the conduct of the Caltex Franchisee employee. Ms Cockburn was advised that the matter would be investigated which would include seeking a response from Wade and would take approximately 28 days.
● Ms Cockburn said the complaint to Caltex was focussed on Wade’s rude behaviour towards her.
● On or about 18 July 2017, Ms Cockburn contacted Caltex again and was advised the investigation was not complete as Wade had not responded.
● On 20 July 2017, Ms Cockburn contacted Caltex again and was advised the matter was being forwarded to their internal legal department and Fiona advised her to contact the Commission.
● On the same day, Ms Cockburn lodged her application
● Ms Cockburn had not thought about lodging her claim before the issue was raised by Caltex on 20 July 2017.

[11] At the telephone conference, Ms Clatworthy relied on the submissions filed and contended that there were no exceptional circumstances on the basis that:

● Caltex Jurien is a Caltex Franchisee.
● Ms Cockburn’s communications were directed towards Caltex.
● Ms Cockburn was not dismissed, she had resigned.

[12] Section 366 of the Act relevantly states:

“Time for application

(1) An application under section 365 must be made:

(a)  within 21 days after the dismissal took effect; or

(b)  within such further period as the FWC allows under subsection (2).

(2)  The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)  the reason for the delay; and

(b)  any action taken by the person to dispute the dismissal; and

(c)  prejudice to the employer (including prejudice caused by the delay); and

(d)  the merits of the application; and

(e)  fairness as between the person and other persons in a like position.”

[13] I find that this general protections application by Ms Cockburn was made 10 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[14] I have considered the provisions of s.366(2) 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.”

[15] I find that:

● Ms Cockburn did not contact her employer to challenge the dismissal.
● Ms Cockburn did not complain to the Franchisee but to the Franchisor, Caltex. Her complaint was focussed on the manner in which the Caltex Jurien’s staff member talked to her, not the dismissal.
● Ms Cockburn had not thought about lodging her claim before the issue was raised by Caltex on 20 July 2017.
● The first action taken to contest the dismissal was the lodgement of the application on 20 July 2017.

[16] The applicant needs to provide a credible explanation for the entire period of the delay, 2 but has not done so.

[17] There is no submission that the granting of an extension of time represents prejudice to Caltex Jurien.

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

[19] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.

Conclusion

[20] For the reasons I have set out above, I am not satisfied that Ms Cockburn’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 3 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Ms M.Cockburn the Applicant.

Ms H.Clatworthy on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

14 August.

1 [2011] FWAFB 975

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

 3   PR595392

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<Price code A, PR595391>