Mrs Yvette Palmer v Connolly Dore Lawyers
[2014] FWC 6295
•10 SEPTEMBER 2014
| [2014] FWC 6295 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Yvette Palmer
v
Connolly Dore Lawyers
(U2014/5584)
DEPUTY PRESIDENT ASBURY | BRISBANE, 10 SEPTEMBER 2014 |
Application for unfair dismissal remedy - Jurisdiction - Extension of time.
[1] Ms Yvette Palmer applies for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) with respect to her dismissal on 11 December 2013 by Connelly Dore Lawyers (Connellys). The application was made on 17 March 2014.
[2] By virtue of s.394(2) of the Act an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). Ms Palmer’s application was made 10 days outside the time required in s.394(2) of the Act. It is therefore necessary to determine whether a further period should be allowed under s.394(3) for the application to be made.
[3] A conference of the parties was held and directions were issued requiring the parties to file and serve material and statements of evidence upon which they proposed to rely, in relation to the question of whether a further period should be allowed for Ms Palmer to make her application. The parties were also requested to advise my Chambers as to whether they wished to cross-examine with respect to any statements provided by the other party. Ms Palmer provided written submissions and a Statutory Declaration dated 29 May 2014 with attachments. Connellys provided a submission dated 13 June 2014 supported by authorities. No request was made to cross-examine Ms Palmer and accordingly this matter has been decided on the basis of the material filed by the parties.
[4] The relevant legislative framework for the exercise of the Fair Work Commission’s (Commission’s) discretion in relation to applications of this kind is set out below:
394 Application for unfair dismissal remedy
...
(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.
[5] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where a Full Bench of the Copmmission said:
“[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.” [Endnotes not reproduced]
[6] I have considered the various criteria to which my attention is directed by s.387(3) of the Act.
Reason for the delay – s.394(3)(a)
[7] Ms Palmer states that she was pregnant at the time of her dismissal. She consulted her medical practitioner in early February 2014 and was advised that she should cease work because of the possible adverse health consequences arising from her very high blood pressure. Ms Palmer took maternity leave on 7 February 2014 in approximately the 38th or 39th week of her pregnancy. On 11 February 2014 Mr Michael Connolly, the Director of Connelly Dore Lawyers, attended Ms Palmer's home and advised her that her employment had been terminated.
[8] Ms Palmer states that on 11 February 2014 her health was delicate because of her high blood pressure, and that she found the sudden news of her termination of employment to be a "very large shock". Ms Palmer states that she was physically and emotionally unable to commence proceedings between 11 February 2014 and 19 February 2014 because she:
● had received advice from a medical practitioner that she had high blood pressure and should not work until the birth of her child;
● had swollen feet and it was difficult for her to walk or drive;
● was physically upset and not in a position to instruct legal counsel;
● was sleep deprived because of reflux and a sore back and achieving only 4 hours sleep per night; and
● was experiencing Braxton Hicks contractions which were painful.
[9] Ms Palmer also states that she was physically incapable of instructing legal counsel to commence proceedings between 19 February 2014 and 24 February 2014 because she went into labour on 19 February 2014 and gave birth on 20 February 2014 and was discharged from Gympie Hospital on 20 February 2014.
[10] Ms Palmer further states that she was physically and emotionally incapable of instructing legal counsel to commence proceedings between 24 February 2014 and one week prior to the date upon which she made her application (approximately 10 March 2014) because:
● she was involved in the care of her new-born child with the support of one family member and her partner;
● she was sleep deprived and unable to function effectively with her child breast feeding every four hours;
● she was in significant discomfort because of a third-degree laceration arising from the birth and was taking painkillers;
● her child had a small tongue tie and breast feeding was difficult, which caused her to be stressed and physically upset;
● as a result of difficulties with breastfeeding and the tongue tie she received home and hospital care from a midwife on 1, 4, 7, 11 and 19 March 2014;
● she was stressed and worried because her child was wrongly diagnosed with a possible cleft pallet;
● the misdiagnosis of a possible cleft palate was not discounted until a visit to a specialist in Brisbane on 25 March 2014 and;
● on 3 March 2014 she visited her medical practitioner and sought a referral to a psychologist to discuss the impact on her of her termination of employment which resulted in two appointments in May 2014.
[11] Connellys submitted that there was insufficient evidence for the physical and emotional incapacity relied upon by Ms Palmer. It is true that there is not medical evidence for all the incapacity relied upon by Ms Palmer. It is also true that many of the areas of incapacity relied upon by Ms Palmer relate to the ordinary exigencies of pregnancy and childbirth. However, characterising them as "the usual maladies" of being pregnant, as was submitted by Connellys, is an attempt to understate the circumstances that Ms Palmer was in at the time she was dismissed.
[12] The fact that physical and emotional difficulties in pregnancy and childbirth are commonplace does not make them insignificant in relation to Ms Palmer or to Ms Palmer’s partner, who is also a lawyer. I have no doubt that being the partner of an expectant mother with high blood pressure, who experiences a difficult birth including a laceration and then experiences difficulty breastfeeding, is not an easy situation to be in. This can only have been compounded by the health issues of the child. Although Ms Palmer and her partner might be more aware of time limits because of their profession, it is entirely understandable that they were focused on other matters not the least being the health of their child.
[13] I have considered Ms Palmer's explanation for delay. Whilst I do not accept that Ms Palmer was totally incapacitated for the entire period of the delay such that she could not physically lodge her application, I accept that the significant health issues from which she suffered, the difficulties experienced in giving birth, the ordinary consequences for any new mother of fatigue and distraction, combined with the fear of a disability in her child, against a background of an unexpected and upsetting termination of employment whilst on maternity leave, are an explanation for the delay that amounts to a reason to grant an exception to the ordinary time limit for making an application for an unfair dismissal remedy.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
[14] Ms Palmer became aware of her dismissal on 11 February 2014 and I am satisfied that that was the date of dismissal.
Any action taken by the person to dispute the dismissal – s.394(3)(c)
[15] Ms Palmer did not dispute her dismissal other than by lodgement of this application.
Prejudice to the employer – s.394(3)(d)
[16] I am satisfied that Connellys would not be prejudiced if this application were to proceed to arbitration other than by being obliged to defend the application. There is no additional prejudice caused by the delay.
The merits of the application – s.394(3)(e)
[17] It is not possible to decide the merits of Ms Palmer’s application on the material before me. I cannot be satisfied that the application is without merit. Merit is a neutral consideration. I have given some consideration to the serious allegations made by Connellys against a person with a professional reputation to maintain. I have taken into account Ms Palmer's interest in disputing the allegations of professional misconduct made by Connellys.
Fairness as between Ms Palmer and other persons in a similar position – s.394(3)(e)
[18] In light of the explanation for the delay provided by Ms Palmer, this is not a relevant factor in the consideration of Ms Palmer’s application.
[19] In all of the circumstances I am satisfied that the delay in Ms Palmer making her application was due to a combination of factors both ordinary and out of the ordinary, and which constitute exceptional circumstances which warrant the exercise of discretion to grant a further period for Ms Palmer to make her unfair dismissal application. I allow a further period to 17 March 2014 and an order to that effect will issue with this Decision.
DEPUTY PRESIDENT
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