Ms Diane Shepherd v Eldercare Inc

[2016] FWC 4146

[2016] FWC 4146

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Ms Diane Shepherd
v
Eldercare Inc
(U2016/7313)

COMMISSIONER PLATT ADELAIDE, 23 JUNE 2016

Application for relief from unfair dismissal – extension of time not granted – application dismissed.

[1] On 30 May 2016, Ms Diane Shepherd lodged an application seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against Eldercare Incorporated (Eldercare) in respect of the termination of her employment on 11 April 2016.

[2] The Form F2 Unfair Dismissal Application, submitted by Ms Shepherd stated that the dismissal was unfair because:

● the allegations made against her by a nursing home resident were false;
● the resident was not a reliable witness; and
● the investigation was deficient.

[3] The application was made beyond the time permitted by the Act.

[4] On 1 June 2016, my Associate corresponded with both Ms Shepherd and Eldercare, and advised them that the extension of time issue would be considered at a telephone conference on Wednesday 22 June 2016. Substantial information about the extension of time issue was provided to the parties. Ms Shepherd was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 16 June 2016.

[5] No material was received from Ms Shepherd despite numerous follow up attempts by my associate to the email address and contact telephone number provided in the application, and an additional email address advised by Eldercare which was provided to them by Ms Shepherd post termination.

[6] A Form F3 Employer Response was submitted by Eldercare on 8 June 2016 and stated that Ms Shepherd was dismissed for failing to meet the requirements of the Aged Care Act 2007 (Cth) and Eldercare’s procedure and Code of Conduct by using “unwarranted physical force on a resident.”

[7] On 20 June 2016, my Associate emailed Ms Shepherd in relation to her failure to provide information concerning her extension of time application. The communication advised that failure to provide the information requested may result in the matter being determined on the information already before the Commission or the application being dismissed.

[8] Ms Shepherd has not provided any information as to why the time to lodge her application should be extended other than that contained in her application.

[9] Ms Shepherd did not attend the telephone conference on 22 June 2016. Ms Suzanne Cannon and Ms Sylvia Powell represented Eldercare.

[10] Eldercare opposed the extension of time applicant and provided the following information relevant to the extension of time issue:

● the employment was terminated by letter dated 11 April 2016;
● the allegations that the dismissal was unfair were contested;
● Ms Shepherd had filed an unfair dismissal application in the State Commission on or about 28 April 2016 and that the State Commission had advised the employer around 19 May 2016 that it did not have jurisdiction to handle the matter;
● there was no prejudice suffered as a result of the delay; and
● there were no other employees in a similar position.

[11] At the conclusion of the conference, I advised that I would dismiss the application and publish my reasons.

Discretion to extend time

[12] Section 394(3) of the Act states:

“(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.”

[13] I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ which stated:

“[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.”

[14] Whilst Ms Shepherd took prompt action to challenge the termination of her employment in the State Commission, she has failed to prosecute her case after having lodged this application on 30 May 2016.

[15] Ms Shepherd has not provided any explanation as to the reasons for the delay in lodging her application, particularly as to why it took her 11 days from the date upon which the State Commission advised her that it lacked jurisdiction to deal with her claim.

[16] I find that the duration of the delay does not favour a finding that an extension of time of this magnitude would prejudice Eldercare.

[17] In terms of the merits of the application, information which allows a definitive conclusion in this respect is not before me and I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

[18] Considerations of fairness, relative to other persons in similar positions is not relevant in this matter.

[19] I have concluded that the material before me does not establish that Ms Shepard’s circumstances can be regarded as exceptional so as to warrant an extension of time. Ms Shepherd’s unfair dismissal application is therefore, dismissed.

ORDER

1. The application lodged by Ms Diane Shepherd pursuant to s.394 of the Act on 30 May 2016 is dismissed.

COMMISSIONER

Appearances:

S Cannon and S Powell on behalf of Eldercare.

Conference details:

2016

Adelaide (By Telephone)

22 June.

1 [2011] FWAFB 975.

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