Miss Sally-Anne Fitzgerald v Dianna Smith trading Escape Hair Design

[2010] FWA 4054

[2010] FWA 4054

FAIR WORK AUSTRALIA

DECISION

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

Miss Sally-Anne Fitzgerald
v
Dianna Smith trading Escape Hair Design
(U2010/6688)

COMMISSIONER SMITH MELBOURNE, 10 JUNE 2010

Request for Fair Work Australia to allow extension of time for lodgement of application; small business employer.

[1] On 26 February 2010, Fair Work Australia received an application from Miss Sally-Anne Fitzgerald pursuant to s.394 of the Fair Work Act 2009 alleging that her termination of employment was harsh, unjust and unreasonable. The application indicated that the date of the applicant’s dismissal was 10 February 2010.

[2] The application was made outside the time limit prescribed by s.394(2) of the Act and on 8 April 2010, the employer’s representative at that time, Cyngler Kaye Levy Lawyers, filed a Form F4—Objection to Application for Unfair Dismissal Remedy seeking the dismissal of the application on two grounds:

1. The application is out of time; and

2. The respondent is a small business employer comprising less than 15 employees.

[3] Cyngler Kaye Levy Lawyers advised, in their covering letter of 8 April, that they “did not intend to participate in the upcoming telephone conciliation”. The telephone conference was cancelled. The matter was then listed for hearing on 28 May 2010 and Directions were issued requiring the parties to file and serve written submissions.

[4] Both parties filed written submissions and on 12 May Mr A. McDonald, McDonald Murholme, Barristers and Solicitors filed a notice of representative commencing to act on behalf of the respondent.

[5] At the hearing to determine the jurisdictional objections Miss Sally-Anne Fitzgerald appeared on her own behalf and Mr A. McDonald appeared, with permission, on behalf of Dianna Smith.

[6] Dealing firstly with the out of time objection, s.394(3) of the Act provides Fair Work Australia with a discretion to extend the time limit of 14 days as fixed by s.394(2), if it is satisfied that there are exceptional circumstances pertaining to the late lodgement.

[7] Section 394(3) of the Act provides:

“394(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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] It was the applicant’s submission that, prior to the dismissal she:

• asked, for personal reasons, to take one week off;



• was in a “distressed state” because her closest friend was murdered on 1 February;



• was staying with a friend one hour away from the hairdressing salon because she was too frightened to be on her own;



• maintained contact with her employer and after being offered an opportunity to take any time off on leave that she needed and advised her employer that she would return to work on 9 February.



• attempted to return to work on 9 February, then discovered that she was not ready to do so, and made arrangements for her clients to be rebooked.



• left the salon on 9 February and later telephoned to advise that she had been asked by Victoria Police to attend an appointment the following afternoon and would therefore need to take that afternoon off.



• appeared at work on the morning of 10 February to find that the lock on the salon door had been changed, denying her access, and waited for Ms Smith to arrive to provide access to the salon.

[9] Miss Fitzgerald submitted that she was dismissed prior to attending to any clients on the morning of 10 February 2010, gathered her belongings and was asked to leave.

[10] Miss Fitzgerald provided 5 reasons for the late lodgement of her application. She submitted that:

1. She was not aware of her rights, was unsure of what forms she needed and how to obtain them for the initial 10 days after the date of her termination.

2. The funeral of her friend occurred one week after the date of her termination and she felt that she had an obligation to her friend’s family to assist them with preparations for the funeral and she deemed this to be a priority at the time.

3. She was also required to prepare a statement to Victoria Police relating to the murder of her friend and this task took priority.

4. She was staying with a friend during this period and she was in a precarious financial situation and was unable to get around. Further, she was staying in an area where her phone reception was poor.

5. She has general practitioner medical reports as well as homicide police psychologist reports to support that she was in a distressed state of mind during the days following her dismissal due to the death of her friend and was unable to follow up the necessary requirements of filing her s.394 application at that time.

[11] The employers written submissions [dated 6 May 2010] provide:

• an outline that the circumstances of Miss Fitzgerald’s case are unusual but not exceptional citing a similarity between Miss Fitzgerald’s submissions and those made in Berndette Shields v. Warringarri Aboriginal Corporation 1 in this regard.



• highlight the applicant’s own admission that:

(i) her obligations as to the funeral concluded one week after the termination of employment; and

(ii) she became award of her rights and the unfair dismissal claim process approximately 10 days after the termination of employment. 2

[12] The written submissions in response to Miss Fitzgerald’s written submission [dated 7 May 2010] state that:

• Miss Fitzgerald did not ask Ms Smith for leave but was offered it by Ms Smith after the murder of her friend on 1 February 2010.



• Miss Fitzgerald did not ask other staff members not to book clients in for her that week or to book those who already had appointments in blocks as it is claimed.



• Miss Fitzgerald proceeded to call and reschedule clients without discussing this with Ms Smith and advised customers that she would be taking the following week off—something that Ms Smith was unaware of until told by clients



• on the morning of 9 February, during the applicant’s rostered hours of 9.00 am until 12.00 pm the applicant arrived at work early and deleted all of the messages on the answering machine and, even though she was supposed to be with clients that morning, Ms Smith submits that Miss Fitzgerald spent the majority of her time talking either on the salon phone or on her own mobile phone.



• no one was aware of the applicant’s appointment with Victoria Police on the afternoon of 10 February.



• on the morning of 10 February Ms Smith was waiting to speak with Miss Fitzgerald, hoping to have a conversation with her prior to any clients or other staff members arriving at the salon. Ms Smith’s intention was:

“....to have a calm exchange and conference as to why her employment was being terminated. I handed her a document entitled “Termination of Employment”. This document included all of the issued, namely: her punctuality, attitude toward clients, misappropriation of stock, and attack on the public reputation of my business. I had also prepared a cheque, paying her out for all of her entitlements, in addition to two weeks notice salary.” 3

• Miss Fitzgerald’s response to this conversation was “to have a meltdown” 4and she left the salon with the cheque but refused to read or sign the documentation presented to her.



• the employer disputes Miss Fitzgerald’s view that she had “obligations and priority’ in assisting in the funeral of her friend and submit that “the family in fact did not want her to be involved” 5.

[13] The employer submits that the applicant’s claim is not only filed out of time but that it also lacks merit. At paragraph 11 of the written submissions the employer outlines 9 reasons in support of the termination and attaches documentation from one staff member and many clients in support of this submission.

[14] The employer is of the belief that “this claim for unfair dismissal had [has] prejudiced my business. It is an insult to my reputation and practice as a competent employer”. 6

[15] His Honour Vice President Lawler in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Australian Postal Corporation 7, states:

“The meaning of the expression “exceptional circumstances” in s.106KA of the Health Insurance Act 1973 (Cth) was considered by Rares J in Ho v Professional Services Review Committee No 295 8 where his Honour made reference to the relevant authorities in holding:9

“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.

In this passage his Honour was concerned with the ordinary meaning of the expression “exceptional circumstances” and the approach identified is, in my view, equally applicable to the use of that expression in s.465(3). In summary, the expression “exceptional circumstances” 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.”

[16] Given the circumstances faced by the applicant on and around the time of her dismissal I am satisfied that the circumstances she faced in lodging her application within the time prescribed are of an exceptional nature and I am prepared to grant an extension of time in which to file her application.

[17] Turning now to deal with the objection relating to Dianna Smith being a small business. Whilst this is true, Ms Fitzgerald has, in accordance with s.383(b) been employed for longer than one year. This objection is also dismissed.

COMMISSIONER

Appearances:

S. A. Fitzgerald the applicant.

A. McDonald, Solicitor on behalf of Dianna Smith trading as Escape Hair Design.

Hearing details:

2010.

Melbourne:

May, 28.

 1   [2009] FWA 860 (28 October 2009)

 2   Employers written submissions dated 6 May 2010.

 3   Employers written submissions dated 7 May 2010 at paragraph 6.

 4   Ibid, at paragraph 7.

 5   Ibid, at paragraph 8.

 6   Ibid, at paragraph 13.

 7   [2007] AIRC 848, PR979157

 8 [2007] FCA 388, 27 March 2007

 9   At paragraphs 23-27.

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