Ms Dessiree King v Amana Living Incorporated T/A Amana Living

[2014] FWC 4534

[2014] FWC 4534

FAIR WORK COMMISSION

DECISION

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

Ms Dessiree King
v
Amana Living Incorporated T/A Amana Living
(U2014/6967)

COMMISSIONER CLOGHAN PERTH, 8 JULY 2014

Unfair dismissal.

[1] On 2 May 2014, Ms Dessiree King (Ms King or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer, Amana Living (Employer).

[2] Ms King alleges that she was dismissed by Amana Living on 12 March 2014.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2)(a) of the FW Act.

[5] Ms King O’Donovan has not made the application within 21 days after the dismissal took effect. However, the Commission can allow, pursuant to paragraph 394(2)(a) of the FW Act, a further period for the application to be made, that is, 2 May 2014, if it is satisfied that there are exceptional circumstances as set out in s.394(3) of the FW Act.

[6] The relevant legislative provisions are as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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] To resolve the question of whether there are exceptional circumstances to allow the application to be filed on 2 May 2014, I issued procedural directions to the parties on 19 March 2014 advising that the matter would be determined by written submissions.

[8] This is my decision and reasons for decision as to whether exceptional circumstances existed to allow the application to be filed on 2 May 2014.

CONSIDERATION

[9] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, 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.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[10] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[11] The majority of employees who make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”.

[12] The burden lies with Ms King to make out her case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I now turn to consider those circumstances set out by the Applicant.

[13] The Applicant’s submission is brief and is set out in full as follows:

“The delay was due to ill health (stress) plus trying to sort the dismissal out myself, and also having a case with the Fairwork Ombudsman about pay disputes on the 1st may 2014 and my place of employment not coming to the party. I was advised t continue with my unfair work dismissal claim. I had completely lost my voice due to the stress and anxiety caused by my employer, im now waiting to see a ENT. Due to my stress I had also forgot too add my employers company details on the original application forms and then could not download part of the forms which had been emailed to me, so I contacted the Perth office too inform them.

Hoping that you can see why m application for my unfair dismissal was delayed.”

[14] In Nulty v Blue Star Pty Ltd [2011] FWAFB 975 at [13] the Full Bench observed:

“...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...”

[15] The Applicant asserts that her application was delayed due to “stress” following dismissal. However, there is nothing exceptional about being anxious or stressed after being dismissed. On the contrary, for most employees, not to be anxious or stressed (in whatever form) following dismissal, would be exceptional.

[16] Notwithstanding being anxious and stressed, Ms King was able to query her final salary payment on 9 April 2014. The Employer rectified the miscalculation and communicated with Ms King on 10 and 16 April 2014.

[17] Further, sometime after her dismissal and prior to 1 May 2014, Ms King filed a complaint with the Fair work Ombudsman (FWO). This complaint was filed during the period where she was anxious and stressed. The complaint was the subject of mediation on 1 May 2014. At the completion of the mediation, Ms King withdrew her complaint and the FWO advised the Employer it would take no further action.

[18] Following closure of the FWO complaint on 1 May 2014, Ms King proceeded to file her application to this Commission on 2 May 2014.

[19] For her own reasons, Ms King has chosen to pursue her dispute with the Employer sequentially. In doing so, Ms King determined or made a judgement, that the statutory timeline of 21 days since the dismissal took effect became secondary; this is not a valid reason for the delay in filing the application.

[20] Ms King has not addressed the remaining criterion in s.394(3) of the FW Act. However, I am satisfied that Ms King became aware that her employment was terminated with immediate effect on 12 March 2014. From what I have already observed, Ms King took issue only with the calculations of her final salary payments until making this application. The Employer has not asserted that it will suffer any prejudice and I adopt a neutral consideration in relation to this criterion. I have also adopted a neutral position in relation to the merits of the application. It would appear that the criterion in paragraph 394((3)(f) is not relevant - to the extent it is relevant, I have also adopted a neutral consideration.

CONCLUSION

[21] In conclusion, for the reasons I have set out above, I am not satisfied that exceptional circumstances existed for the application to be filed beyond the statutory timeline of 21 days after the dismissal took effect. Accordingly, the application must be dismissed. An order to this effect will be issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 4 June 2014.

Respondent: 16 June 2014.

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