Ms Diane Estephan v Australian Indigenous Mentoring Experience Corporation T/A Aime

[2014] FWC 8539

[2014] FWC 8539

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Ms Diane Estephan
v
Australian Indigenous Mentoring Experience Corporation T/A AIME
(U2014/7905)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 28 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] This decision arises from an application from 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 Ms Estephan and the respondent either ended on 14 May 2014 or 28 May 2014. Ms Estephan lodged her application at the Fair Work Commission on 16 June 2014. If the effective date of the termination of her employment was 14 May 2014 her application was lodged 10 days outside the statutory time limit. If the effective date of the termination of her employment was 28 May 2014 her application was lodged within the statutory time limit.

[3] I first determined the effective date of Ms Estephan’s termination of employment. As I determined that the effective date of termination of her employment was 14 May 2014 I then had to consider whether an extension of time for lodgement was appropriate.

[4] I heard the evidence of Ms Estephan by transcribed telephone link Thursday, 30 October 2014. Ms Estephan relied on medical evidence of an incapacity which had arisen since the termination of her employment and she submitted that she was unable to face the respondent. The respondent opposed this process on the basis of insufficient medical evidence of any incapacity to attend and give evidence; that Ms Estephan had obtained employment elsewhere and thereby demonstrated a capacity to work, and by inference a capacity to attend the hearing and give evidence; and the fact that the respondent wished to cross-examine Ms Estephan. I considered the respondent’s submissions but determined that the application could proceed efficiently by transcribed telephone link.

Conclusion regarding the effective date of termination of employment

[5] The application for an unfair dismissal remedy lodged by Ms Estephan stated that the date of termination of her employment was 14 May 2014. By electronic mail on 26 June 2014 Ms Estephan advised that the insertion of that date was an administrative error. She said:

"I mistakenly stated that 14 May was my termination date, however as stated in my termination letter from my previous employer, it was actually the 28th May. I have attached the letter above which is located on page 8 of the attachment.

I'm very sorry for the inconvenience caused, I must have read that document 5 times and didn't pick up on that error. "

[6] From this correspondence I concluded that Ms Estephan had considered 28 May 2014 to be the effective date of termination of employment until she finally noticed the date of 14 May 2014 on the letter of termination.

[7] The applicant’s submission on this issue is set out below:

“5. The Applicant was issued a redundancy statement via email whilst exercising personal leave on the 14th day of May 2014 declaring that the Applicant’s role was made redundant due to financial hardship. The letter further stated that the notice period is to be paid in lieu and therefore in normal circumstances the payment of notice in lieu would indicate that the termination was effective immediately. However more specifically the letter clearly stated that the actual termination would take effect on the 28th day of May 2014 leaving the Applicant to disregard the assumption that the termination was effective on the 14th day of May 2014 but rather the 28th day of May 2014 (acceptable and credible reason). The Respondent’s redundancy statement misguided the Applicant to believe that the termination took effect on the 28th day of May 2014 and hence the Respondent contributed to the reasons for delay (acceptable and credible reason). In addition the true termination date ought to be deemed the date the Applicant was fit to resume work and therefore not the actual date the termination was carried out. As per the Applicant’s statement of facts, the Applicant did not obtain additional medical evidence to supply to the company due to the termination being carried out and further at no point in time did the company request additional medical evidence however the Applicant testifies that the condition is on-going.

6. The Applicant was aware of the 21 day limitation. However based on paragraph 5 of the Applicants statement of facts, the Applicant believed the application was tendered within the appropriate timeframe. Furthermore the Applicant believed that the timeframe for lodgement was only relevant to unfair dismissal and not relevant for challenging redundancies (similar precedent noted).

7. The Applicant suffers from an on-going illness of depression and stress and thus accordingly this illness has affected the Applicant’s ability to make lodgement within the specified time frame (medical evidence).” 1

“14. On the 14th day of May 2014 whilst exercising personal leave I was emailed by the company and its authorised management team. In this email I was informed of my role being made redundant. The email included a letter documenting the Redundancy.

15. The Redundancy letter stated that my notice period would be paid in lieu. However the letter further and clearly stated that the termination date would take effect on the 28th day of May 2014, this led me to believe and assume that this date was the date that my termination would take effect.

16. I declare that I was terminated through a Redundancy while exercising personal leave moreover medical evidence was tendered and further medical evidence was to be tendered in order to continue and extend the personal leave I had exercised however given that I was terminated further medical evidence was not obtained as it was no longer required.

17. I confirm that I hold little to no experience relating to the procedural requirements of an unfair dismissal application nor any experience in dealing with the commission prior to my recent application with the commission. I am aware of the 21 day restriction. Based on my belief and assumption as stated above of the termination date being the 28th day of May 2014 it is presumed that the application was tendered within the appropriate timeframe. Furthermore although I was aware of the 21 day timeframe, I was unaware that this timeframe would apply when challenging a Redundancy.

18. I confirm that I am suffering from a medical condition, this medical condition began on the 9th day of May 2014 and is on-going.

19. This Medical condition has affected my ability to make an application for an unfair dismissal.” 2

[8] The respondent’s submission was that every objective fact supported 14 May 2014 as the effective date of termination of Ms Estephan’s employment. It submitted that the date in the letter of termination was a typographical error and that error was the only indicator contrary to 14 May 2014 being the correct date of termination.

[9] After having heard the evidence of the applicant I was not persuaded that Ms Estephan honestly believed that the effective date of termination of her employment was 28 May 2014.

[10] I am satisfied that the outcome of termination of employment was clear to all participants at the conclusion of the termination interview. Ms Estephan’s employment was terminated immediately.

[11] I was satisfied that, as a person with a relevant degree working in human relations, Ms Estephan was in an advantageous position to understand that there was a 21 day time limit for lodgement. Her own evidence is that she understood that there was a 21 day time limit.

[12] The letter of termination stated that Ms Estephan's position had been made redundant, it confirmed that she would receive payment in lieu of two weeks notice and payment of her other entitlements. The letter also confirmed that the applicant was to return company property and reminded her of her other contractual obligations.

[13] The application states that the date of termination of employment was 14 May 2014. On contacting my Chambers, Ms Estephan’s own words were "I must have read that document 5 times and didn't pick up on that error."

I am satisfied that Ms Estephan lodged her application outside the statutory time limit and then, having subsequently noticed the error in the letter of termination, relied on that error to avoid the consequences of late lodgement.

[14] I was satisfied and found that the effective date of termination of employment was 14 May 2014.

Application for an extension of time for lodgement

[15] 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.

[16] 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]

[17] 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.

[18] 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)

[19] The reasons Ms Estephan provided for her delay in lodgement are:

• her misunderstanding as to the date of termination;



• her misunderstanding that the time limit was not relevant to challenges to redundancies;



• ongoing illness, being depression and stress, affecting her ability to lodge an application within the time;



• no experience in dealing with the procedure requirements in unfair dismissal application and,



• a misunderstanding regarding the application of the timeframe to dismissals involving a redundancy.

[20] Ignorance of the time limit for lodgement of these applications is not a reason to grant an exception to the time limit unless there are particular justifications. In this application I am not persuaded that there is any justification for an exception. Ms Estephan was engaged in other activities, including other paid work in the period during which she could have lodged this application. She did not do so. I am not persuaded that she was so medically incapacitated as to be unable to lodge her application, particularly since it could have been lodged by telephone or by Internet lodgement.

[21] The medical evidence produced by Ms Estephan was insufficient to demonstrate any incapacity to lodge an application. It was not contemporaneous.

[22] I was not persuaded that Ms Estephan’s difficulties were out of the ordinary, unusual or uncommon. Indeed, I was satisfied that, given her educational background, Ms Estephan was in a somewhat better position than the majority of applicants who seek an extension of time for lodgement.

whether the person first became aware of the dismissal after it had taken effect-s.394(3)(b)

[23] Ms Estephan became aware of the end of her relationship with the respondent on 14 May 2014.

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

[24] Ms Estephan disputed her dismissal by lodging this application.

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

[25] I was satisfied that there would be no greater prejudice to the respondent caused by Ms Estephan'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)

[26] Merit was a neutral issue in my consideration of this application.

fairness as between Ms Estephan and other persons in a similar position-S.394(3)(f)

[27] There was no issue of fairness in relation to any other person in a similar position.

[28] 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. Ms Estephan's circumstances were not out of the ordinary course, unusual, special or uncommon.

[29] I advised Ms Estephan that I was not persuaded to extend the time for lodgement of her application and dismissed her application on 12 November 2014.

SENIOR DEPUTY PRESIDENT

 1   Exhibit Estephan 1 paras 5 - 7

 2   Exhibit Estephan 2 paras 14 - 19

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