Ms Briahna Bass v Broulee Early Learning Centre

[2014] FWC 7532

[2014] FWC 7532

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ms Briahna Bass
v
Broulee Early Learning Centre
(U2014/11245)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 23 OCTOBER 2014

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 lodged pursuant to section 394 of the Fair Work Act 2009 (the Act). Ms Bass lodged her application on 25 July 2014, 9 days outside the statutory time limit. On 1 October 2014 I issued an Order 1 dismissing Ms Bass’s application for an extension of time for lodgement. On 12 October 2014 she asked me to provide reasons for my decision.

[2] When determining Ms Bass's application I considered her application and the statement that she provided on 8 September 2014.

[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 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.

[4] 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]

[5] For exceptional circumstances to arise as contemplated by s.394 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 s.394(3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[6] Ms Bass’s submission was as follows:

“To whom it may concern,

I Briahna Bass am writing this letter applying for an extension of time for the application I made for an unfair dismissal against Broulee Early Learning. I understand I lodged my application outside the 21 calendar days you are required to have done so.

I was unsure of what avenue to take to start with due to the shock of being fired over the phone and the stress that caused me. I had been advised to put an unfair dismissal claim in but I didn't want to create any extra stress to myself and my unborn baby. After discussing with family and friends and being convinced I had a right to stand up for my rights as an employee.

I solely believe that my pregnancy was the reason behind me being fired. I was devastated that employers I had put so much effort in for had don’t [sic] this over the phone. I also believe that I'm not only standing up for myself but I'm standing up for the rights of other employees that have been fired for unfair reasons during my employment at Broulee Early Learning Centre.

Thank you for taking the time to consider a time extension for my application for an unfair dismissal against Broulee Early Learning Centre.

Yours Sincerely

Briahna Bass”

[7] I 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)

[8] Ms Bass relied on her uncertainty as to what remedy to undertake, her shock and upset caused by the manner of her dismissal and her desire to not cause herself further stress because of her pregnancy. I was not persuaded that these matters constituted exceptional circumstances which would warrant granting an exception to the statutory time limit. They were not 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)

[9] Ms Bass was aware of her dismissal on the date it took place.

any action taken by the person to dispute the dismissal – s.394(3)(c)

[10] Ms Bass did not have any opportunity to dispute this dismissal except by lodgement of this application.

prejudice to the employer s.394(3)(d)

[11] I was satisfied that there would be no greater prejudice to the respondent by this application being listed now than there would have been if it had been lodged in time. To this extent prejudice to the respondent was a neutral consideration.

the merits of the application – s.394(3)(e)

[12] It was not possible to decide the merits of the application on the material before me. I decided to treat merit as a neutral consideration.

fairness as between Mr Zaki and other persons in a similar position – s.394(3)(e)

[13] This was not a relevant factor in Ms Bass’s application.

[14] I considered the submissions of Ms Bass. I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and dismissed her application.

SENIOR DEPUTY PRESIDENT

 1   PR556132

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