Ms Chrystine Tinney v Kambala

[2013] FWC 9165

[2013] FWC 9165

FAIR WORK COMMISSION

DECISION

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

Ms Chrystine Tinney
v
Kambala
(U2013/12019)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 25 NOVEMBER 2013

Application for relief from unfair dismissal - extension of time.

[1] The respondent Kambala objected to Ms Tinney's application lodged pursuant to section 394 of the Fair Work Act 2009 (the Act) on the basis that the application was not lodged within the time limit prescribed by the Act. There were other jurisdictional objections but I decided to first determine this issue.

[2] Ms Tinney submitted that her application was lodged within the time limit prescribed by the Act. Ms Tinney’s resignation letter is set out below:

“I would like to resign from my position of Sports teacher, as we have not been able to come to a resolution for a change of days.

I’d like to thank you for your employment over the past 9 years. I wish you well in your final year at Kambala, and forthcoming retirement.” 1

[3] Kambala's response is set out below:

“I write in reply to your email in which you tender your resignation from Kambala. While you have not indicated a date, I feel that your resignation should take place from the end of this term and the Business Office will therefore calculate your final payments accordingly.

I wish you well for both your time at Inaburra School and for the future and thank you for your service over the past nine years.” 2

[4] Ms Tinney submitted that her resignation became effective after four weeks notice commencing on 4 June 2013. She also submitted that the four weeks notice did not apply over the three week vacation period which intervened. She submitted that that seven weeks took the effective date of the termination of her employment to 23 July 2013. Her application could not therefore be late.

[5] Kambala, as indicated in its response to Ms Tinney’s letter of resignation, relied on 21 June 2013 as the effective date of cessation of employment. If that date is accepted the application was lodged 17days late.

[6] Ms Tinney’s resignation letter does not indicate a date at which the termination of her employment would become effective. I have concluded that, on an ordinary reading of its terms, it indicates a resignation which was effective immediately.

[7] There is no mention of a notice period, no mention of an obligation to work any notice or the provision of a sick leave certificate indicating any inability to work the notice period. I am satisfied that Ms Tinney was not giving notice. She was resigning with immediate effect. Kambala agreed to pay entitlements to 21 June 2013 in the absence of any indication from Ms Tinney as to an effective date. I am not persuaded that that voluntary assumption by Kambala regarding 21 June 2013 affects my conclusion regarding the meaning and effect of Ms Tinney's letter of 4 June 2013.

[8] The relevant legislative framework for the exercise of Fair Work Commission’s discretion in relation to applications of this kind is set out below.

“S394 Application for unfair dismissal remedy

(3) FWC may allow a further period for the application to be made by a person under subsection (1) if 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.”

[9] I have considered the discussion of exceptional circumstances by Justices Allsop and Branson in Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd. 3Justice 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.”4

[10] 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.” 5 In Maan v Minister for Immigration and Citizenship6 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])” 7

(my emphasis)

[11] This approach was adopted by Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd T/A Joy Mining Machinery. 8I have also adopted that approach.

[12] I have considered the circumstances of this application in light of the criteria set out for consideration in section 394(3) of the Act.

[13] I have considered section 394 (3) (a). I am not satisfied that there is any reason to grant an exception in relation to Ms Tinney’s application. Ms Tinney sought legal advice from a friend. She sought advice from her union. She states that both of these advisers confirmed to her that the four weeks notice, taking into account an additional three weeks of leave, set the appropriate time limit for lodgement of her application. She does not recall when that advice was obtained. I am not satisfied that that advice was the reason for Ms Tinney's delay. In any event I am not satisfied that that advice alters what Ms Tinney did when she resigned on 4 June 2013.

[14] Ms Tinney submitted that she was emotionally disturbed and under financial pressure to continue her work at her second school, and had to resign so as not to endanger that work. I accept that Ms Tinney was emotionally fraught during that period. She was very upset when giving her evidence. Despite that, I am not persuaded that her level of upset caused her not to understand what she was doing when she resigned, or provides a reason to grant an exception to the lodgement period prescribed by the Act.

[15] The only other factor relevant to this application referred to in section 394 is the merit of the application. I am satisfied that the substantive application had no merit. I took this consideration into account.

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

SENIOR DEPUTY PRESIDENT

 1   Exhibit Kambala 2

 2   Exhibit Kambala 3

 3 [2003] FCAFC 256.

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

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

 6 [2009] FCAFC 150

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

 8   [2010] FWA 1394 [PR994029] - 25 February 2010

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