Ms Emily Murphy v Leaf Espresso Bar T/A Higginbotham Watts Investments Pty Ltd

[2016] FWC 4046

[2016] FWC 4046

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Ms Emily Murphy
v
Leaf Espresso Bar T/A Higginbotham Watts Investments Pty Ltd
(U2016/6676)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 21 JUNE 2016

Application for relief from unfair dismissal.

[1] This decision arises from an application for 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 Murphy and the respondent ended on 11 April 2016. Ms Murphy lodged her application at the Fair Work Commission on 4 May 2016. Ms Murphy’s application was lodged 2 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Ms Murphy. Ms Murphy’s answer to the question in paragraph 1.4 of the application is set out below:

“We attempted (my mother and I) to upload all the documents for the application on Monday 2/5/16 after reading how to do so. On our particular computer (Microsoft tablet) it would not allow us to do so. My mum made several attempts to call the Commission on Tuesday and Wednesday but as she was working had to hang up after 30 mins due to work constraints. I had just secured new employment so was unable to help Tuesday and Wednesday. We drove straight in after work today 4/5/16 to lodge in person.”

[4] I wrote to Ms Murphy on 15 May 2016 outlining the matters I was required to consider by the Act and asked her to provide a statement addressing these matters within 14 days. Ms Murphy provided a comprehensive statement on 15 May 2016. Her statement is set out below:

“Dear Ms Drake

I am writing to provide an explanation as to why my Unfair Dismissal claim was
lodged late.

With the assistance of my mother, after recovering from the distress of losing my job, I took great care and consideration with all the information contained in the application. This naturally, took me almost the full 21 days to ensure my account was as accurate as possible.

On Monday 2^nd May, the day the documents were due, when we attempted to upload
all the documents onto the Fair Work site, we encountered major difficulties. We were working from a Microsoft tablet and thought that may have been the reason initially. As it was a public holiday, we could not contact anyone for support. I was very worried and anxious so my mother took an hour off from her work the following morning and attempted to contact Fair Work Commission to advise of the delay, but was waiting on the phone for over 1 hour and then had to go to work. She attempted to call again during her breaks at work and had to hang up twice due to waiting over 30 minutes and needed to be back with patients (my mum is a nurse), so had to hang up again.

I had just secured new employment so was unable to help her. My mother then stayed back at work on the Tuesday 3^rd May and attempted to upload the documents from her work computer after registering under a different name on efiling. Unfortunately, we were unable to upload to the site again. Had we realised the trouble we would encounter, my mum would have driven into the office that morning in the hour she took off, but it was extremely stressful for her as she had a lot of patients coming in for treatment that morning.

The next day, despite repeated attempts to contact Fair work again, my mother and I drove into the Brisbane office after our respective work commitments, just making it in time before closing.

It was then that the lady on reception advised us that we could have emailed it in. I felt very embarrassed. Unfortunately, this advice was not forthcoming earlier before our attempts to lodge the documents. (I had made calls to Fair Work commission prior to preparing the documents and was instructed to upload them when completed. Had we been aware that we could have emailed them through, we could have done that instead so easily.

We explained to the lady on reception that we had done everything possible to contact
someone to advise of the delay in getting the documents lodged, but had unfortunately
been on hold for such long periods it became impossible to wait any longer due to work commitments.

That is the only reason the documents were lodged late.

In reply to your other questions:

● Whether the person first became aware of the dismissal after it had taken effect.
Answer: Yes

● Any action taken by the person to dispute the dismissal.
Answer: I was so shocked about the dismissal; I only asked if I would receive all my entitlements. My Employer stated that he did not think I was entitled to any pay in lieu of working public holidays, but has since agreed to pay it. My mother is acting for me and has been in email contact with the HR Manager, Scott Cobine and he has been helping to ensure I receive my entitlements.

● Prejudice to the employer

Answer: I don't believe there is prejudice.

● The merits of the application
Answer: I believe the application has merit, because it occurred abruptly, with no consultation or opportunity to explain my side. I feel it was necessary to apply for unfair dismissal due to the unfair nature of the dismissal and that I truly feared my employer would try to avoid his financial responsibilities. I have asked for minor compensation (2 weeks additional pay) and for the Commission to assist to ensure that this does not happen to another employee of this company. I have also requested a formal apology.

● Fairness as between the person and other persons in a similar position
Answer: This dismissal was not fair and was managed appallingly. I left work the day it happened in a distressed state. It was not offered to call my partner or family despite my distressed state.

I trust this information is satisfactory, to grant me a (sic) extension of time and accept my”

[5] I considered that statement.

[6] On 27 May 2016 I wrote to respondent and asked it to provide a response. The respondent lodged its employer response on 31 May 2016.

[7] On 2 June 2016 I wrote to the respondent as follows:

“Dear Mr Cobine,

Attached is the explanation for delay provided by the applicant. I am inclined to grant an extension of time for lodgement on the basis of the explanation provided.

If the respondent is opposed to the extension of time please provide a submission in opposition within seven days.

I will deal with this application in 14 days, on the papers already before me and any submission received in opposition, unless I receive beforehand a request to hear the application in person or by telephone or by telephone link.”

[8] The respondent replied on 9 June 2016 as follows:

“Thank you for your email of 2 June 2016.

As outlined in our form F3 response, we do not believe that Ms Murphy has shown appropriate or significant grounds for the late submission of her claim.

The anxiety, anxiousness and depression outlined as a reason (along with the apparent lack of organisation on her part) for her late submission are factors that were present well before the termination of her employment, as a result we believe of her not responsibly taking her medication for her mental illness in the weeks leading up to her termination.

In addition, Ms Murphy has been the cause of at least one other Fair Work Claim brought against the group during her employment as the team leader at Leaf for bullying another employee, and we believe that the claim made by Ms Murphy is a vexatious action on her part, despite her claims of ensuring it does not happen to other employees. In fact, the employees that she is expressing concern for are the same employees that had previously made formal complaints against her behaviour whilst employed by the group.

On these grounds, we do not support her application for an extension.”

[9] On 20 June 2016 I issued an Order allowing Ms Murphy’s application for an extension of time.

[10] 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.

[11] 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]

[12] 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.

[13] 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)

[14] The reasons Ms Murphy provided for her delay in lodgement related to difficulties in lodging the application.

[15] I was persuaded that Ms Murphy’s difficulties were out of the ordinary, unusual and uncommon.

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

[16] Ms Murphy became aware of the end of her relationship with the respondent on 11 April 2016.

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

[17] Ms Murphy disputed her dismissal by lodging this application.

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

[18] I was satisfied that there would be no greater prejudice to the respondent caused by Ms Murphy’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)

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

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

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

[21] Having considered all of the matters to which my attention is directed by the Act I was satisfied that there were circumstances which would warrant my granting an exception to the statutory time limit and on that basis I granted Ms Murphy an extension of time for filing her application. Ms Murphy’s circumstances were out of the ordinary course, unusual, special and uncommon.

SENIOR DEPUTY PRESIDENT

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