Michelle Collins v Cyndan Chemicals

[2015] FWC 859

[2015] FWC 859

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Michelle Collins
v
Cyndan Chemicals
(U2015/2291)

DEPUTY PRESIDENT SAMS SYDNEY, 5 FEBRUARY 2015

Application for relief from unfair dismissal - whether ‘genuine redundancy’ - application made ‘out of time’ - no ‘exceptional circumstances’- prospects of success negligible - application dismissed.

[1] This decision arises from an application for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394(3) of the Fair Work Act 2009 (the ‘Act’). Michelle Joy Collins (the ‘applicant’) was purportedly made redundant from her employment with Cyndan Chemicals (the ‘respondent’) on 18 December 2014. The applicant lodged an application for unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 13 January 2015. The Act mandates a 21 day time limit for initiating an application for a remedy for unfair dismissal. Her application was therefore lodged at least 4 days outside the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for Unfair Dismissal lodged by the applicant. The Commission wrote to the applicant on 16 January 2015 outlining the matters I am required to consider under s 394(3) of the Act, and asked her to provide a statement addressing these matters within 14 days. The applicant provided, by way of email, a statement of one page. Having considered this material, I issued an Order refusing an extension of time and dismissed the application on 23 January 2015. These are my reasons for doing so.

RELEVANT STATUTORY PROVISIONS AND PRINCIPLES
[3] The relevant legislative framework, guiding the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘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.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, the Full Bench of the Commission 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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].’

[5] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing of an unfair dismissal application. Put another way, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application ‘out of time’; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia[2014] FWCFB 2288 succinctly described the Commission’s decision making process under 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I now turn to each of the criteria under s 394(3) of the Act.

CONSIDERATION

Reason for the delay (s 394(3)(a))

[6] The applicant contends that her reasons for a delay in filing her application were twofold. Firstly, the applicant asserted that she did not have internet access to the relevant F2 Form needed to file an unfair dismissal claim as she was on a holiday in South West Rocks, New South Wales. Secondly, the applicant claimed that she was not aware of her legal rights pertaining to unfair dismissal law prior to leaving for her holiday. The applicant’s reasons for seeking an extension of time were brief. I have extracted her relevant submissions below:

‘...As it was Xmas period I was away on holidays. During that time I was at South West Rocks and had little access to the internet.

Therefore, I was unable to download the forms and complete my application until I returned home...

... I was not aware that I had grounds for unfair dismissal until I was away and therefore did not submit before I left...’

[7] I am not persuaded that either of the reasons given by the applicant constitute an ‘exceptional circumstance’ within the meaning of s 394(3) of the Act. In response to the applicant’s contention that she did not have access to the relevant F2 Form, I note that the internet is not the only method available for filing an unfair dismissal claim. The Commission provides a number of means by which an unfair dismissal application can be lodged. In addition to electronic lodgement, an unfair dismissal application may be filed in person at the Commission’s registry or by post. An unfair dismissal application can also be made by phone; See: Fair Work Commission Rules 2013 Rule 9. Furthermore, the applicant had the right to nominate a representative (legal or otherwise) to lodge an application on her behalf, but chose not to exercise that prerogative.

[8] As to the second reason, I cannot accept the applicant’s proposition that she was unaware that she had ‘grounds for unfair dismissal’ and this constituted a basis for granting an extension of time. An applicant’s lack of knowledge of their legal rights does not of itself, constitute an ‘exceptional circumstance’; See Nulty at para [14]. It should be emphasised that the 21 day time period for lodging an unfair dismissal application starts from the date of dismissal, not from the date on which the applicant becomes aware of their legal rights.

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

[9] The unfair dismissal application, lodged by the applicant, acknowledges that she was dismissed on 18 December 2014 and was aware of her dismissal on that date. This is a neutral factor in this case.

Any action taken by the person to dispute the dismissal (s 394(3)(c))

[10] The applicant did not indicate that she took any action to dispute her dismissal, until lodging this application with the Commission on 13 January 2015. It seems curious that rather than taking any action to dispute her dismissal, the applicant’s priority was to go on holidays. This factor weight against the grant of an extension of time.

Prejudice to the employer (s 394(3)(d))

[11] Given that the application was lodged 4 days outside of the statutory time limit, I do not consider there is any significant prejudice to the employer, save for the usual prejudice of costs and time expended in defending the claim. This factor is a neutral factor in this case.

The merits of the application (s 394(3)(e))

[12] It is important to note that a consideration of the merits of an application, at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis. The applicant alleges that her redundancy was not a ‘genuine redundancy’ within the meaning of the Act. She alleges that after being made redundant she was asked to return to her workplace in order to conduct a ‘handover’ to another staff member. She also asserts that following her redundancy the respondent offered to reemploy her on a contract. Neither of these two circumstances point to a conclusion that the applicant’s dismissal was not a case of genuine redundancy. Genuine redundancy may still involve the employer restructuring its workforce by ‘contracting out’ certain functions and the fact the applicant was asked to ‘handover’ to another employee is not uncommon when tasks previously performed by a redundant employee are redistributed to other existing employees; See: UGL Rail Services Pty Ltd v Janik [2014] NSWCA 436. A prima facie assessment of the applicant’s material would suggest that the applicant’s prospects of success are negligible.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))
[13] The applicant did not specifically address this criterion. There were no other persons in a comparative position to that of the applicant. This is a neutral factor in this case.

CONCLUSION

[14] Having considered all of the matters which the Commission is required to take into account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 23 January 2015.

DEPUTY PRESIDENT

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