Ms Aroha Waharai v Roper Gulf Regional Council
[2016] FWC 4039
•21 JUNE 2016
| [2016] FWC 4039 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Aroha Waharai
v
Roper Gulf Regional Council
(U2016/2226)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 21 JUNE 2016 |
Application for relief from unfair dismissal.
[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).
[2] The relationship between the applicant and the respondent ended on 13 April 2016. The applicant lodged the application at the Fair Work Commission on 12 May 2016. The applicant’s application was lodged 8 days outside the statutory time limit.
[3] When determining this application I had before me the Application for Unfair Dismissal lodged by the applicant. Paragraph 1.4 of the application is set out below:
“Immediate dismissal occurred on 13th April 2016
I left Bulman Community Tuesday 20th April to relocate back to QLD. During the time I was advised of dismissal and having to leave Bulman I took my car to Katherine for safety checks and emptied my accommodation to vacate the premises as I resided in Roper Gulf accommodation.
This was a long drive back to QLD with no plans in place.
Along the way we (myself and my husband) discussed our next move and planning what to do next as due to my dismissal my husband resigned as he worked for Roper Gulf and lived with me. We both had to leave as there is no accommodation for my husband in Bulman to continue working for RGRC.
On arrival in QLD (Cairns) we have spent time changing our drivers licence, car registration, looking for accommodation, looking for employment and many other tasks required for transition. This has not been an easy task as we do not have a residential address to make the changes and could not provide utility bill to show our residential address. We have just found accommodation and are settling in.
The relocation from Brisbane QLD to Bulman NT in 2014 was planned. I firstly secured the position with RGRC. I started in Bulman and then 3 months later my husband came to Northern Territory. He lived and worked in Katherine and then joined me in Bulman six months later. He visited me in Bulman on a regular basis while living in Katherine. This relocation meant both myself and husband had work. My contract for four years would of ensured we had a plan in place which we had anticipated for our next relocation to New Zealand. To make this plan happen requires planning. This has resulted in both of us being unemployed at the same time and this has never occurred in our 25 years together.
The stress and having to relocate has made it very difficult for me to submit my application in the 21 day timeframe. The relocation has made it hard for me to speak to support people and to organise my case. I required further time to get a support person and discuss my application and gather the required documentation. This has been difficult with the multiple tasks required to resettle. It has not been made any easier as my place of residence does not have mobile coverage and on investigation with Telstra my now place of residence may not be able to get a home phone.
I have only just resettled.
I have requested my final pay sheet and a separation certificate from CSM Bulman and HR Bulman representative RGRC and have not yet received these. I have forward (Sic) an email address and an address of a friend for correspondence to be sent. These documents will provide to me information on reason for leaving and my payslip so I can ascertain if all my entitlements have been paid.”
[4] I wrote to the applicant on 19 May 2016 outlining the matters I was required to consider by the Act and asked the applicant to provide a statement addressing these matters within 14 days. The applicant provided a comprehensive statement on 25 May 2015. That statement is set out below:
“Thank you for the letter dated 19th May 2016 which I received on 24 May 2016.
I am responding as I would like an extension to my application for you to consider.
Due to my immediate and sudden dismissal on 13th April 2016 with Roper Gulf my only option was to relocate back to QLD where I had relocated from prior to being employed with Roper Gulf. Due to the belief I had a four year contract which was due to end in September 2018. I had vacated my home of thirteen years with the intention of having a plan for my next relocation after the four year contract.
I was instructed to vacate the premises at Lot 1 Bulman (Roper Gulf accommodation) when I received the dismissal effective immediately, and this has put a lot of stress and pressure on myself and husband. We were both employed with Roper Gulf and were faced with the situation of nowhere to reside and with no income or employment.
This has been very emotional and time consuming period of our life:
● It is a very long drive back to QLD using time of the 21 days to lodge the application
● I have had to pay for accommodation, fuel and food throughout this journey
● The constant thought of knowing we have to find accommodation
● The constant thought of knowing we have no income
● The constant thought and pressure to look for work immediately
● Ongoing financial burdens without any income to continue to pay our personal bills
● Change of all documents including drivers license, car registration and safety certificates, change of address and other documentation or tasks required for employment and to secure cost effective accommodation
● Four weeks prior to dismissal my car had broken (clutch went) down on Central Arnham Road. At the time this was not a major concern as my husband and myself both had employment. The cost of towing and repairs was substantial however necessary but due to my sudden dismissal this cost then impacted our financial situation further which was something not anticipated at the time.
All of the above caused our finances to diminish causing further stress and pressure on myself and my husband’s relationship alongside emotional well-being.
My mental and emotional well-being is deteriorating and I have had to prioritise finding a place to live and looking for employment due to necessity. To secure employment can be time consuming and due to processes that have to be followed it will take time to secure a position.
Due to lack of resources, financial instability and no place of residence to focus on this application, no mobile coverage, home phone or internet to research and prepare this has also impacted not meeting the deadline.
The reasons described above are my reasons for this late application. This has impacted me as I have been unable to concentrate on any one specific task at any one time as they are all equally of high importance and priority.
Please consider this matter as I feel this situation was unforeseen not only resulting in my termination but my husband being unemployed and having under pressure to regain stability.”
[5] I considered the statement. I issued an Order refusing the applicant’s application for an extension of time and dismissed the application on 26 May 2016
[6] The relevant legislative framework for the exercise of the Fair Work 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.
[7] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the Full Bench 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]
[8] For exceptional circumstances to arise as contemplated by s394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.
[9] I considered the various criteria to which my attention is directed by s.394 (3) of the Act.
reason for the delay-s.394(3)(a)
[10] The reasons the applicant provided for delay in lodgement were the ordinary matters that arise in a change of employment and circumstance.
[11] While sympathetic to these circumstances I was not persuaded that the applicant’s difficulties were out of the ordinary, unusual or uncommon.
whether the person first became aware of the dismissal after it had taken effect-s.394(3)(b)
[12] The applicant became aware of the end of the relationship with the respondent on 13 April 2016.
any action taken by the person to dispute the dismissal-s.394(3)(c)
[13] The applicant disputed the dismissal by lodging this application.
prejudice to the employer-s.394(3)(d)
[14] I was satisfied that there would be no greater prejudice to the respondent caused by the applicant’s application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.
the merits of the application-s.394(3)(e)
[15] Merit was a neutral issue in my consideration of this application.
fairness as between the applicant and other persons in a similar position-S.394(3)(f)
[16] There was no issue of fairness in relation to any other person in a similar position.
[17] Having considered all of the matters to which my attention is directed by the Act I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application. The applicant’s circumstances were not out of the ordinary course, unusual, special or uncommon.
SENIOR DEPUTY PRESIDENT
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