Mrs Margaret Elder v Nepean Volunteer Services Inc

[2013] FWC 4107

[2013] FWC 4107

FAIR WORK COMMISSION

DECISION

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

Mrs Margaret Elder
v
Nepean Volunteer Services Inc.
(U2013/6610)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 3 JULY 2013

Termination of employment - extension of time.

[1] The termination of Mrs Elder’s employment with Nepean Volunteer Services Inc. (Nepean) took place on 31 March 2011. This application pursuant to s394 of the Fair Work Act2009 (the Act) was lodged on 18 February 2013. The application is 677 days outside the prescribed time limit. Nepean opposed any extension of time for lodgement of the application.

[2] Mrs Elder was represented by Mr Elder. Nepean was represented by Ms Burton, solicitor.

[3] The relevant legislative framework for the exercise of the Fair Work Commission's discretion in relation to applications of this kind is set out in sub section 394(3) of the Act.

“S394 Application for unfair dismissal remedy

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(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.”

[4] In a discussion of exceptional circumstances by Justices Allsop and Branson in Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd 1Justice Allsop, following a discussion of previous authority, concluded that if rights are to be set aside or circumstances altered, as in this case by an extension of time, then the exceptional circumstances relied on must be “...circumstances sufficient to justify that outcome.”2

[5] Justice Branson said “To put the matter another way, ‘exceptional circumstances’ are simply circumstances sufficient to render it just and equitable to grant relief notwithstanding that the grant of relief will defeat rights of unsecured creditors.” 3 In Maan v Minister for Immigration and Citizenship4 Branson J again discussed “exceptional circumstances”, in that case in relation to non-compliance with a visa condition. She said:

“[51] Although the expression “exceptional circumstances” is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

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. (cf Baker v The Queen (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[25])” 5

(my emphasis)

[6] I have considered the submissions of both parties, in particular the materials provided by Mr Elder in submissions 6 and Mrs Elder's statutory declaration.7

[7] Pursuant to s394 (3) (a) I have considered the reason for Mrs Elder’s delay in lodging her application. Mrs Elder’s explanation was that the reasons provided to her in 2011 for the termination of her employment were a sham and that she had only discovered the deception in late January or early February 2013. Mrs Elder then lodged her application within the prescribed time, if measured from the date of her discovery of Nepean’s alleged deception.

[8] Nepean submitted that its Annual Report (2011-2012) does not support Mrs Elder’s suspicions regarding the continuation of the program in which she was working at the time of her dismissal. I agree with this submission.

[9] I accept that Mrs Elder believes that the Annual Report demonstrates that Nepean engaged in deceptive conduct. However, I am not persuaded that it supports Mrs Elder’s argument regarding the program in which she was working at the time of her dismissal. Nepean submits that a vacant position, which was advertised after the termination of Mrs Elder's employment and which Mrs Elder relies on in support of her argument that the program in which she was working continued, was performed by third-party trainers and not employees of Nepean. I accept that that was the case. Deceptive conduct by an employer, of the kind alleged by Mrs Elder, might well be an exceptional circumstance but I am not persuaded in all the circumstances of this case that there was a sham reason relied on by Nepean for the termination of Mrs Elder’s employment.

[10] Section 394 (3)(b) is not relevant to this application.

[11] I have considered s394(3)(c). I am satisfied that Mrs Elder did not dispute the termination of her employment when it occurred because she was not aware of any reason to do so.

[12] I have considered s394(3)(d). I am satisfied that there would be prejudice to Nepean if this application was granted.

[13] I have considered s394(3)(e). I am not satisfied that the substantive application has any merit.

[14] Section 394 (3) (f) is not relevant to this application.

[15] Having considered the materials and submissions provided by Mrs Elder and Nepean, I am not persuaded that there is any exceptional circumstance identified by Mrs Elder which would justify an exception to the time limit imposed by the Act.

[16] The application for an extension of time for lodgement of this application is dismissed.

SENIOR DEPUTY PRESIDENT

Hearing details:

2013

Sydney

June 14

 1 [2003] FCAFC 256.

 2   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [192]

 3   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [28]

 4 [2009] FCAFC 150

 5   Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 para [51]

 6   Exhibit Elder 2

 7   Exhibit Elder 1

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