Miss Chloe White v M S Lowry Pty Ltd T/A Light Bulb Cafe

[2016] FWC 4683

[2016] FWC 4683

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Chloe White
v
M S Lowry Pty Ltd T/A Light Bulb Cafe
(U2016/7862)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 14 JULY 2016

Application for relief from unfair dismissal – extension of time granted.

[1] Miss White 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 M S Lowry Pty Ltd T/A Light Bulb Cafe (Light Bulb Cafe).

[2] Miss White’s application was lodged on 21 June 2016. In that application Miss White advised that the termination of her employment took effect on 30 May 2016 and that she was advised of that dismissal on the same day. Miss White asserted that the application was made within the 21 day time limit.

[3] On 23 June 2016 my Associate corresponded with both Miss White and the Light Bulb Cafe and advised that the extension of time issue would be considered through a telephone conference on 13 July 2016. Substantial information about the extension of time issue was provided to the parties. Miss White was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 4 July 2016.

[4] The Employer’s Response (Form F3) to the application advised that the termination of Miss White’s employment took effect on 31 May 2016.

[5] Miss White participated in the telephone conference on 13 July 2016. Mr Lowry from the Light Bulb Cafe also participated in this conference.

[6] My conclusions about the extension of time issue were reached on the basis of all of the information before me.

[7] 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.”

[8] In the conference on 13 July 2016 both Miss White and Mr Lowry accepted that they had a discussion on 30 May 2016 where Mr Lowry advised Miss White that she was not required to work again. This discussion incorporated reference to Miss White taking a week off but it concluded on the basis that Mr Lowry advised that he would confirm the termination of Miss White’s employment in correspondence to her. Accordingly, Mr Lowry confirmed that the advice he provided in the Employer’s Response to the application was in error in that the termination of Miss White’s employment took effect on 30 May 2016. Consequently, the application was made one day 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 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.”

[9] Before considering each of these factors, it is appropriate that I note that a relevant consideration in this matter goes to the advice that Miss White and Mr Lowry were in a relationship which soured not long before the termination of Miss White’s employment. This becomes relevant to the explanation of the parties’ positions in relation to this matter.

[10] Miss White’s reasons for the delay go, firstly, to the extent to which she was waiting for the written advice that confirmed the termination of her employment. She asserts that she was uncertain about the exact termination of her employment arrangements, until she received, from Mr Lowry, on 2 June 2016, a deed of settlement. Miss White was paid for the week ending 5 June 2016. Secondly, Miss White asserts that she posted her application on 17 June 2016 and understood that it should have been received before 21 June 2016.

[11] I do not consider that Miss White’s reliance on posting the application on 17 June 2006 represents any form of acceptable reason for the delay but I have concluded that, notwithstanding the advice in her application, the uncertainty created by the absence of clear advice about the termination of her employment until 2 June 2016 represents a reason for the delay consistent with the concept of an exceptional circumstance.

[12] Apart from the late lodgement of this application, I have noted that Miss White sought advice and assistance from a lawyer shortly after she received the draft deed of settlement on 2 June 2016. Miss White then wrote to Mr Lowry on 3 June 2016, indicating the basis upon which she sought to settle issues associated with the termination of her employment. The payments she sought in this matter went to back pay, annual leave payments and outstanding salary payments. She agrees that these payments have been made. The standing of a final claim, relative to superannuation is uncertain, in that Mr Lowry confirms that this payment has now been made but Miss White is uncertain about this. Mr Lowry advised that he agreed to these terms, and incorporated them in a further deed of settlement which he signed on 7 June 2016. This further deed of settlement was not signed by Miss White. Miss White asserts that, since 3 June 2016 she has changed her mind about her proposed terms of settlement and now seeks a more comprehensive financial settlement to take into account the extent to which she and Mr Lowry established the Light Bulb Cafe business and she worked additional hours to support the business and should consequently receive a larger share of the business equity given the termination of her employment and the conclusion of her relationship with Mr Lowry. I have noted that Miss White’s position in this regard may give rise to an argument about whether there was any form of concluded agreement between the parties and issues associated with the dissolution of both her business and personal relationship with Mr Lowry, that are beyond the jurisdiction of the Commission.

[13] Mr Lowry does not contend that an extension of time of this magnitude would prejudice the Light Bulb Cafe but this, of itself, does not provide a basis for an extension of time.

[14] Information which would enable a definitive conclusion about the merits of the application is not before me so that I have regarded the merits of the application as a neutral factor relative to the extension of time issue. It is appropriate that I repeat, however, that the merits of this application are likely to be entangled in arguments about the settlement of the termination of the relationship between Miss White and Mr Lowry.

[15] Considerations of fairness relative to other persons in positions, where there is some uncertainty about the date of the employment termination and where actions to dispute the employment termination have been taken, support an extension of time.

[16] I have concluded that the material before me establishes that Miss White’s circumstances can be regarded as exceptional so as to warrant an extension of time. This decision is primarily predicated on the uncertainty associated with confirmation of the termination of Miss White’s employment. It is appropriate that I note that I have some reservations, on the limited material before me, about the extent to which the parties reached an agreed position on this matter which would preclude Miss White from taking the application further. That however is a matter which would need to be further considered. If it is not settled through the conciliation process, Miss White’s application appears likely to require consideration of whether the Small Business Fair Dismissal Code was complied with, or, in the alternative, the provisions of s.387 of the FW Act. Further, as I have indicated to the parties, Miss White’s claim for compensation appears to have the characteristics of a relationship settlement which is not easily reconciled with the factors the Commission is required to take into account in the event that an order for compensation is ultimately contemplated. Consequently, it appears to me that this is a matter about which both parties should actively consider resolving so as to avoid protracted argument. An Order (PR582716) giving effect to this decision will be issued and the application will be referred for conciliation.

Appearances (by telephone):

C White on her own behalf.

M Lowry for the respondent.

Hearing (Conference) details:

2016.

Adelaide:

July 13.

1 [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

<Price code C, PR582715>