Mrs Kathryn Lawless v Christian Radio Inc T/A LifeFM

[2015] FWC 8678

[2015] FWC 8678

FAIR WORK COMMISSION

DECISION

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

Mrs Kathryn Lawless
v
Christian Radio Inc T/A LifeFM
(U2015/16242)

COMMISSIONER PLATT ADELAIDE, 15 DECEMBER 2015

Application for relief from unfair dismissal – extension of time not granted.

[1] Ms Lawless 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 Christian Radio Inc T/A LifeFM (Life FM).

[2] The unfair dismissal application, including a number of attachments, was received by the South Australian Registry of the Fair Work Commission (the Commission) on 25 November 2015.

[3] Ms Lawless’ application advised that her employment was terminated on 21 August 2015.

[4] Ms Lawless asked the Commission to consider the following information in deciding whether to accept her application out of time:

“Following my instant dismissal on Fri 21 Aug 2015 by the CEO, Life FM, I subsequently corresponded on Monday 24Aug15 and met with the Chairman of the Board (Bernie Glaser) on Thursday 10Sep15 in an effort to resolve this issue at the lowest possible level. At this meeting, I was given the Chairman’s word that action would be taken in regards to my being the victim of an orchestrated campaign of bullying, harassment and discrimination culminating in unfair dismissal.

Upon meeting with a former colleague on Tuesday 03Nov15, I was made aware that a board meeting had been held and no investigation into this matter was going to be taken nor was I going to be informed of this by Life FM or the Board Chairman.

Since as of 03Nov15 I have been unable to obtain a fair hearing or investigation into my unlawful treatment by line management, I now believe I have no alternative but to escalate my grievance to the Fair Work Commission.

I therefore appeal for consideration to accept my application out of time as I have tried in good faith to seek amicable resolution within the confines of my post employer but was denied the common courtesy being advised that no action was going to be taken” 1

[5] On 2 December 2015, my associate corresponded with both Ms Lawless and Life FM, and advised that the extension of time issue would be considered through a telephone conference on 15 December 2015. Substantial information about the extension of time issue was provided to the parties. Ms Lawless was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 8 December 2015.

[6] Additional information was received from Ms Lawless by post on 4 December 2015. This submission stated:

“1. At the time of my unwarranted and unexpected dismissal and the manner in which it was executed, I was traumatised and emotionally distraught. When I was offered reinstatement one day later, I was confused, shell-shocked and more emotionally distressed and it took 1 week to come to the very difficult decision to not return to a toxic work environment due to the fact I had been bullied and harassed over an extended period of time.

2. I believed the best course of action was to approach the LifeFM Chairman of the Board and seek a resolution at the lowest possible level. At a meeting 3 weeks later as the earliest opportunity for the Chairman, I was assured that the matter would be looked into and resolved. I accepted this feedback in good faith and anticipated that the work environment would be drastically changed and I could consider returning to the company.

3. After 12 weeks, the Board hadn’t gotten back to me and I discovered through informal channels that they actually had no intention of responding to me. At this point I then decided to research the possibility of an Unfair Dismissal claim with Fairwork SA. I discovered the correct authority was to contact the Fair Work Commission. This process took a long time as I was unable to directly speak to anyone at the Commission and ask for assistance and advice. All phone calls redirect callers back to the website which I found unhelpful and confusing as it is difficult to negotiate and ascertain whether I would still have had a case.”

[7] Mr Chant, on behalf of Life FM, provided submissions opposing an extension of time.

[8] Ms Lawless’ position is summarised as follows. On or about 21 August 2015, there was a dispute concerning the employment arrangements of Ms Lawless, including whether Ms Lawless had resigned. Ms Lawless made a complaint to the Board of Life FM (the Board), and on 23 August 2015, Life FM offered to reinstate Ms Lawless. Ms Lawless asked for time to consider the offer and on 28 August 2015 declined the offer.

[9] Ms Lawless accepted that the termination date was 28 August 2015, and her reasons for not lodging a claim within 21 days of this date was that she was traumatised and emotionally distraught at her treatment, her belief that the Board was conducting a review of the matter, and that she was unaware of the 21 day time limit. No medical evidence was tendered to support the impact of Ms Lawless’ emotional state on her capacity to lodge an application.

[10] On 3 November 2015, Ms Lawless became aware that the Board was not conducting a review and around this time began researching the options available to her.

[11] Ms Lawless's explanation for not lodging her claim with 21 days of her finding out that the Board review was not being conducted, was 'I had it ready to go but was still deliberating whether to go ahead'.

[12] Mr Chant submitted that Ms Lawless’s circumstances did not satisfy the requirements of s.394(3) of the Act, and that even if Ms Lawless was justified in waiting for the outcome of a Board review, she failed to lodge a claim within 21 days of becoming aware that such review was not being undertaken.

[13] My conclusions about the extension of time issue were reached on the basis on all of the information before me. I note that a sound file record of this telephone conference was kept.

[14] 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.”

[15] On the information before me, I am satisfied that the application for unfair dismissal was made 38 days beyond the 21 day time limit. 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.”

[16] I have considered the reasons for the delay put forward by Ms Lawless. I have considered the conduct of Ms Lawless in the entire period since the date of termination. Ms Lawless has explained some of the period of delay, but not the entire period. Even if I was minded to accept the conduct of a Board review as a reasonable explanation for the delay, Ms Lawless still failed to lodge her application for unfair dismissal within 21 days of becoming aware that such a review was not being conducted. There is no evidence that Ms Lawless took any action to prosecute her claim prior to 25 November 2015. I do not accept that ignorance of the 21 day limit as a plausible reason. In addition, in the absence of supporting medical evidence, I am not convinced that the trauma and emotional distress which Ms Lawless felt in August 2015 satisfactorily explains the failure to lodge her application until 25 November 2015.

[17] It is clear from Ms Lawless evidence that she was aware of the termination of her employment from at least 28 August 2015. I am not satisfied that, apart from the late lodgement of this application, Ms Lawless pursued other actions so as to challenge the termination of her employment. The duration of the delay favours a finding that an extension of time of this magnitude would prejudice Life FM, but given that no submission in this respect has been made I have regarded this as a neutral issue.

[18] I am unable to conclude that an acceptable reason for the delay, or an exceptional circumstance, is demonstrated in this matter.

[19] In terms of the merits of the application, information which allows a definitive conclusion in this respect is not before me and I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

[20] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[21] Accordingly, I have concluded that the material before me does not establish that Ms Lawless' circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR 575109) giving effect to this decision will be issued.

COMMISSIONER

Appearances:

Ms Kathryn Lawless, applicant.

Mr Michant Chant, for the respondent.

Hearing details:

2015.

Adelaide:

December 15.

 1   Form F2, paragraph 1.4

 2   [2011] FWAFB 975

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