Miss Krystal Hein v Thiess Pty Ltd T/A Thiess

[2016] FWC 6787

[2016] FWC 6787

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Miss Krystal Hein
v
Thiess Pty Ltd T/A Thiess
(U2016/10511)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 23 SEPTEMBER 2016

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

[1] Miss Hein 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 Thiess Pty Ltd T/A Thiess (Thiess). In a conference held today I advised the parties that I had concluded that the application was lodged outside of the 21 day time limit prescribed in the FW Act but that I was satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached those conclusions.

[2] Miss Hein’s application was lodged on 23 August 2016. In that application Miss Hein advised that the termination of her employment took effect on 1 August 2016 and that she was advised of that dismissal on the same day. Miss Hein asserted that the application was made within the 21 day time limit.

[3] On 25 August 2016 the Fair Work Commission Registry provided to the parties correspondence acknowledging receipt of the application and the matter was listed for conciliation on 27 September 2016.

[4] On 30 August 2016 Thiess provided an Employer’s Response (Form F3) in which it confirmed the termination of Miss Hein’s employment took effect on 1 August 2016 and also advised of its jurisdictional objection based on ground that the application was made out of time. Further, on 2 September 2016 Thiess advised by email, that it was not prepared to participate in conciliation sought that the application be dismissed on this basis. Subsequently, the listing for the conciliation conference on 27 September 2016 was cancelled and the matter was referred to me for determination of the extension of time issue. It is appropriate that I note at this point that, at the conference on 23 September 2016, Thiess confirmed that, had the information relating to mail delay associated with the lodgement of the application been available to it at an earlier time, it would not have objected to the extension of time, or to the conciliation process.

[5] On 7 September 2016 my Associate corresponded with both Miss Hein and Thiess and advised that the extension of time issue would be considered through a telephone conference on 23 September 2016. Substantial information about the extension of time issue was provided to the parties. Miss Hein was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by close of business on Friday 16 September 2016. Ms Hein did not provide her documentation within the specified timeframe and as a result of an email prompt from my office, Ms Hein provided a detailed response. That response has been provided to Thiess but I have not recited it in this decision because it details certain personal issues which I have concluded, do not impact on the extension of time issue. In essence, Ms Hein advised of certain personal difficulties which she experienced prior to, and after going on a pre-planned holiday from 3 August until 15 August 2016. Ms Hein advised that she sent the application by express post on 18 August 2016.

[6] Miss Hein participated in the telephone conference on 23 September 2016. Ms Craigie and Mr Donaldson from Thiess also participated in this conference.

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

[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] In the conference on 23 September 2016 I confirmed to the parties that, whilst the application was not received by the Commission until 23 August 2016, the express post tracking system recorded that the application had indeed been posted on 18 August 2016 and that it arrived at the Commission’s post box on the following day. I advised the parties that there was no information available to me which explained why it was that it then took until 23 August 2016 for the application to be received by the Registry office.

[10] I advised the parties that I had concluded that, as the application was made one day outside of the 21 day time limit it could only be pursued if this time limit was extended.

[11] As a consequence I 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.”

[12] Miss Hein’s purported reasons for the delay fall into two broad categories. Firstly, she relies on the personal issues which affected her from shortly after the termination of her employment. Secondly, she relies on the extent to which she express posted the application on 18 August 2016. I have not found it necessary to detail a conclusion about the personal issues which affected her because I am satisfied that the primary reason for the delay in this instance relates to the unexplained delay in the time which it took for the application to progress from the FWC Adelaide post box to the FWC Adelaide Registry office. That time delay amounted to over four days which I consider to be an extraordinarily long period of time and to be quite outside of Ms Hein’s control. Had it been the case that the application progressed from the FWC Adelaide post box to the Registry office within the normal one working day, the application would have arrived within time.

[13] As a consequence, I am satisfied that the reason for the delay represents an exceptional circumstance.

[14] In reaching a conclusion on this issue, I have noted that Miss Hein became aware of the termination of her employment on the day upon which it took effect. This application was the only action that she took to dispute the termination of her employment.

[15] I am not satisfied that the one delay represents any substantial prejudice to the employer.

[16] In terms of the merits of the application, the information before me does not permit any form of definitive conclusion. As a consequence, I have regarded the merits as a neutral factor in considering the extension of time issue. That said, Ms Hein should be aware that, if the contentions set out in the Employer’s Response to the application are made out in an arbitration, her application is unlikely to be successful.

[17] Considerations of fairness relative to other persons in positions, where there is an identifiable delay which is outside of the scope of influence of the applicant, and is supported by evidence, support an extension of time.

[18] I have concluded that the material before me establishes that Miss Hein’s circumstances can be regarded as exceptional so as to warrant an extension of time. An Order (PR585635) giving effect to this decision will be issued and the application will be referred for conciliation.

Appearances (by telephone):

K Hein on her own behalf.

J Craigie and S Donaldson for the respondent.

Hearing (Conference) details:

2016.

Adelaide:

September 23.

1 [2011] FWAFB 975

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<Price code C, PR585633>