Ms Elizabeth Doggett v Marketplace Newsagency

[2014] FWC 7630

[2014] FWC 7630

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Elizabeth Doggett
v
Marketplace Newsagency
(C2014/1533)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 27 OCTOBER 2014

Application to deal with contraventions involving dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unlawful termination remedy pursuant to section 365 of the Fair Work Act 2009 (the Act).

[2] The relationship between Ms Doggett and the respondent ceased on 14 July 2014. Ms Doggett lodged this application before the Fair Work Commission on 22 August 2014. Her application was lodged 10 weeks outside the statutory time limit. In considering this application I have before me for my consideration Ms Doggett’s Application for Unfair Dismissal lodged pursuant to s.394 of the Act, this application for a General Protections remedy lodged pursuant to s.365 of the Act and her submissions made to me at a hearing by telephone link on 20 October 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:

“(1) An application under section 365 must be made:

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

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like 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/Her 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 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.

[6] I have 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)

[7] The reason for Ms Doggett’s delay in lodgement of this application pursuant to s.365 of the Act was that she lodged a previous application pursuant to s.394 of the Act by mistake. Ms Doggett submitted that she had been dismissed whilst on sick leave on 23 May 2014. She was unaware of her mistake in lodging an unfair dismissal application until she attended a conciliation conference before a member of this commission. She submitted that she had relied on incorrect legal advice. The contents of her application are set out below:

“3.1

1. I rang to notify Doctor had given me more time off, I was told this would not be necessary as I didn’t have a job to come back to.

2. I was told we were always going to get rid of you, that’s why we put you on the run (paper deliveries).

3. I asked for the specific reason in writing as she was vague over the phone. I was told that they had no obligation to provide me with that and that she would not be doing it.

3.2

1. I was off sick on sick leave at the time, my duties changed to a task I could not complete. I do not have a car registered for business use to do the paper run with.

2. I was not given the opportunity to respond to job change as it changed while I was off sick and told ‘We were always going to get rid of you.’

3. Verbal warning was given to my mother when she dropped in my doctor certificate, ‘If I did not complete the run, I would not have a job.’ I never had the chance to answer as I was off on sick leave and lost my job 23/5/14 when doctor certificate went until Thursday 29/5/14.”

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

[8] Ms Johnson became aware of the cessation of her relationship with the respondent on 23 May 2014.

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

[9] Ms Johnson disputed her dismissal by lodging an initial application pursuant to s.394 of the Act. I have considered this.

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

[10] Am satisfied that there are would be no greater prejudice to the respondent caused by this application being listed now than there would have been had it been lodged in time. Ms Johnson lodged her initial application pursuant to s.394 of the Act within time. The respondent has been aware, through the procedures of the Fair Work Commission, of the listing of the initial application and the listing of this application. The respondent has refused to engage in any of the processes by which Ms Doggett has sought this extension of time. On 18 August 2014 Mr Troy Sutherland from the respondent advised my Chambers that the respondent would not be participating in the hearing of the application by telephone link conducted by me on 19 August 2014.

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

[11] Merit as a neutral issue in my consideration of this application.

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

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

[13] I am satisfied that there were exceptional circumstances which warrant my granting an exception to the statutory time limit and on that basis I allow the application.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, PR557102>