Miss Lauren Whiting v WorkPac Pty Ltd
[2017] FWC 3854
•21 JULY 2017
| [2017] FWC 3854 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Miss Lauren Whiting
v
WorkPac Pty Ltd
(U2017/6341)
| COMMISSIONER PLATT | ADELAIDE, 21 JULY 2017 |
Application for an unfair dismissal remedy – extension of time – application dismissed.
Miss Lauren Whiting has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with WorkPac Pty Ltd (WorkPac) which her form F2 Unfair Dismissal application advised took effect on 26 May 2017.
This application was lodged on 14 June 2017.
Miss Whiting’s application did not concede that the application was made out of time.
On 23 June 2017, WorkPac filed a form F3 Employer Response which contended that Miss Whiting resigned in writing on 26 April 2017, it was accepted on 28 April 2017 and that the dismissal took effect on 5 May 2017.
The application was not conciliated.
The extension of time jurisdictional issue was then referred to me for determination.
On 7 July 2017, my Associate corresponded with Miss Whiting and WorkPac and advised that the extension of time issue would be considered at a telephone conference on 27 July 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. Miss Whiting was directed to provide a statement concerning the extension of time and any documents to be relied upon by 17 July 2017. WorkPac were invited to file any material in reply by 21 July 2017. The hearing was brought forward to 21 July 2017 by consent.
Miss Whiting’s submissions are relevantly summarised as follows;
· She tendered a letter of resignation on 26 April 2017.
· Miss Whiting contends that the resignation was tendered as a result of workplace bullying and harassment.
· The resignation was accepted on 28 April 2017, and Miss Whiting was advised that her last day in the office would be 5 May 2017 and that the balance of the notice period would be paid out in lieu.
· Miss Whiting was of the understanding that her last day of employment would be at the end of the notice period given being 27 May 2017.
· On 2 June 2017, Miss Whiting lodged a claim alleging constructive dismissal to WorkPac seeking a response by 9 June 2017.
· Miss Whiting was aware of the 21 day time limit and believed she had until 21 June 2017 to lodge her application.
· On 8 June 2017, WorkPac rejected her claim.
· On 14 June 2017, Miss Whiting lodged her unfair dismissal application.
WorkPac’s submissions are relevantly summarised as follows;
· Miss Whiting resigned in writing on 26 April 2017.
· WorkPac accepted the resignation in writing and confirmed that her last working day would be on 24 May 2017.
· WorkPac agreed with Miss Whiting that the last day in the office would be 5 May 2017 and that the remainder of her notice would be paid out in lieu.
· The application was made 42 days after the last day of employment with WorkPac and is thus out of time.
· Miss Whiting has not provided evidence of exceptional circumstance.
· Miss Whiting did not take any action to dispute the dismissal until 2 June 2017, 36 days after her employment ceased.
· WorkPac contends it would be prejudiced by an extension of time as it would set a precedent.
· WorkPac contends the merits are in its favour.
A hearing was conducted by way of telephone conference on 21 July 2017. A sound file record of the telephone conference was kept. Miss Whiting represented herself. Ms Steenstrup represented WorkPac.
The parties reiterated their submissions.
At the conference, Miss Whiting stated she deferred pursuing the matter with WorkPac until her entitlements were paid which occurred on 15 May 2017 and that she agreed to the balance of the notice being paid in lieu. Miss Whiting still apprehends that her employment (despite the notice being paid out) would have ended on 27 May 2017.
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.”
The facts in this matter do not appear to be in dispute.
Based on the facts as related by Miss Whiting, I find that the employment ceased on the date Miss Whiting last worked for WorkPac that is 5 May 2017.[1]
The unfair dismissal application by Miss Whiting was made 19 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[2] 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.”
Miss Whiting took no action to contest the dismissal until 2 June 2017.
The explanation for the delay is that Miss Whiting, incorrectly, assumed that the end date contained in her resignation letter would apply and not be varied by the agreement that the balance of the notice beyond 5 May 2017 would be paid in lieu.
I accept that Miss Whiting was mistaken about the law on this issue. However, in light of the fact that her entitlements would be fully paid on 15 May 2017, Miss Whiting’s submission that she remained employed is difficult to accept. In addition, no challenge to the dismissal was made until 2 June 2017. As a result, I am unable to accept that Miss Whiting has explained all of the delay. Miss Whiting made a conscious decision to wait until she received her entitlements on 15 May 2017 before pursing the matter. However, it was not until 2 June 2017 until something was done. There was no reason proffered as to why she did not raise her concerns with WorkPac about her concerns much earlier.
The applicant needs to provide a credible explanation for the entire period of the delay,[3] but has not done so.
I reject the submission that the granting of an extension of time represents prejudice to WorkPac and I regard this as a neutral factor.
Consideration of fairness relative to other persons in similar positions is a neutral factor.
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
For the reasons I have set out above, I am not satisfied that Miss Whiting’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[4] reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
Miss L.Whiting the Applicant.
Ms K. Steenstrup on behalf of the Respondent.
Hearing (Conference) details:
2017.
Adelaide:
21 July.
[1] Siagian v Sanal Pty Ltd (1994) 122 ALR 333
[2] [2011] FWAFB 975
[3] Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403
[4] PR594764
Printed by authority of the Commonwealth Government Printer
<Price code C, PR594762>
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