Ms Fiona Martland v Mark Basham T/A SA Hospitality Solutions

[2020] FWC 4367

[2020] FWC 4367

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ms Fiona Martland
v
Mark Basham T/A SA Hospitality Solutions
(U2020/10377)

COMMISSIONER PLATT ADELAIDE, 20 AUGUST 2020

Application for an unfair dismissal remedy – request for an extension of time – application granted.

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Ms Fiona Martland a further period to lodge her unfair dismissal application (Application) to be made against Mask Basham T/A SA Hospitality Solutions (Hospitality Solutions).

Background

[3] Hospitality Solutions provides services to the Kilburn Football and Cricket Club Incorporated (the Club). Ms Martland was employed by Hospitality Solutions as a bar person.

[4] On 1 July 2020 Ms Martland lodged a Form F8 s.372 General Protections Application against Hospitality Solutions. Ms Martland contended that Mr Basham started managing her on August 2019 and reduced her hours, and during the COVID-19 Pandemic refused to register her for Jobkeeper despite her being eligible.

[5] On 10 July 2020 Mr Basham on behalf of Hospitality Solutions lodged a Form F8A which contended that Ms Martland was dismissed due to her failing to follow instructions and her conduct. Mr Basham contended he spoke with Ms Martland about her performance. Hospitality Solutions advised that the Club directed that Ms Martland not work behind the bar, resulting in her hours being reduced. Ms Martland’s final bar shift was on 19 December 2019. In the period January to March 2020 the Applicant was employed by the Respondent exclusively as a cleaner at the Club. The Club closed on 22 March 2020 as a result of COVID-19 restrictions. In mid-June 2020 the Club reopened and decided to engage a contractor to provide cleaning services.

[6] A confidential conference in respect of the s.372 application was conducted by myself on 16 July 2020, in accordance with s.374 of the Act.

[7] At the conclusion of the conference I issued a statement in accordance with s.375 of the Act. My Associate provided Ms Martland with a Notice of Discontinuance (in respect of the s.372 application) and a Form F2 and advice as to the timeframe for lodgement on 16 July 2020.

[8] Ms Martland lodged the Form F2 application on 30 July 2020.

[9] Ms Martland contends that she was dismissed in December 2019 (presumedly 19 December 2019 that being her last shift).

[10] Hospitality Solutions lodged a Form F3 on 7 August 2020 and contended that the employer has not employed Ms Martland since 16 March 2020.

[11] On 5 August 2020, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 18 August 2020. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Ms Martland was directed to provide a statement concerning the extension of time and any documents to be relied upon by 12 August 2020.

[12] Ms Martland sent a short email in respect of her position on 13 August 2020.

Hearing

[13] A hearing was conducted by way of telephone conference on 18 August 2020. A sound file record of the telephone conference was kept. Ms Martland represented herself. Mr Basham represented Hospitality Solutions.

[14] Ms Martland provided an explanation of the delay at the hearing and supporting documentation. Her position is summarised below:

•  It was not until the s.374 conference was conducted on 16 July 2020, that she realised that her complaint was more aligned to an unfair dismissal claim than a general protections claim.

•  On 17 July 2020 she contacted a lawyer, Mr Peter Anderson. Mr Anderson asked her to obtain a Separation Certificate from her employer and provided her with a blank copy.

•  On 17 July 2020 Ms Martland emailed a request for the Separation Certificate to Mr Basham.

•  Mr Basham provided the certificate on 20 July 2020. Ms Martland sent the certificate to her lawyer on the same day.

•  On 20 July 2020 Ms Martland emailed my Chambers and advised ‘Hello  commissioner Platt ,after the conference on Thursday I got a lawyer and they asked for a separation certificate mark done this but he has changed the reasons why I was sacked ,now that stops me from unfair dismissal as he has said no work(because of coronavirus) and now says date was 16/03/2020 instead of December  can anything be done about this as he has lied to you and provented me from any action’  Thankyou Fiona’ (sic).

•  Mr Anderson provided Ms Martland with advice on 23 July 2020.

•  Ms Martland lodged the notice of discontinuance in respect of the s.372 matter on 24 July 2020.

•  Ms Martland tried to lodge her Form F2 application on 24 July 2020, however it was lodged as a series of photographs and appears not to have been received, possibly as a result of exceeding the maximum email file size.

•  Ms Martland successfully lodged her unfair dismissal application on 30 July 2020.

•  Ms Martland seeks that I extend the time for the lodgement of her claim.

[15] Hospitality solutions opposed the extension of time, but did not dispute the chronology related by Ms Martland and supported by documentary evidence provided during the hearing.

Applicable Law

[16] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(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.”

[17] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 3

[18] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd⁴ 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.”

Consideration

[19] It appears that Ms Martland could have been dismissed on 19 December 2020 but was certainly dismissed by 16 March 2020. There was no dismissal letter. On the basis of the material before me I accept that Ms Martland’s employment ceased on 16 March 2020.

[20] The 21 day time period for Ms Martland to make her application expired on 6 April 2020. 5 Ms Martland’s application was filed just under 4 months late.

Paragraph 394(3)(a) - reason for the delay

[21] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 6 A dismissal can be communicated orally.7

[22] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period. 8 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,9the Full Bench explained the correct approach by reference to the following example:

“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

[23] An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters: 10

“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

…

[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”

[24] It is evident that Ms Martland has little understanding of the general protections provisions of the Act and I accept that until the receipt of the Form F8A and the conduct of the s.374 conference she was not aware that she had been dismissed because of her performance and/or conduct.

[25] Ms Martland sought advice with respect to the lodgement of an unfair dismissal claim and sought confirmation of her dismissal (which up to that time appears not to have been provided). Having been provided the completed separation certificate (which it appears was the first time Ms Martland was formally advised in writing that her employment had ceased) three days later Ms Martland immediately forwarded it to her lawyer and received advice on 23 July 2020. Upon receiving that advice, she tried unsuccessfully to lodge her Form F2 application the next day and succeeded in doing so on 30 July 2020.

[26] These facts are not in dispute.

[27] I am satisfied that Ms Martland has provided a satisfactory explanation for the entirety delay. This factor weighs in favour of granting an extension of time.

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

[28] Ms Martland was not aware of her dismissal until s.374 conference, and was not provided with the date and reasons for her dismissal until 20 July 2020.

[29] This factor weighs in favour of finding that there are exceptional circumstances.

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

[30] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 11

[31] The lodgement of the general protections claim, and the conduct of Ms Martland in the period between 17 July and 24 July 2020, action taken to contest the dismissal and this factor is a consideration in favour of the granting of an extension of time.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[32] Prejudice to the employer will weigh against granting an extension of time. 12 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.13

[33] A long delay gives rise “to a general presumption of prejudice”. 14

[34] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 15

[35] Hospitality Solutions did not submit that it would be prejudiced.

[36] I accept that the delay is considerable, however I am satisfied that there would be no greater prejudice to Hospitality Solution caused by the application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice is a neutral consideration.

Paragraph 394(3)(e) - merits of the application

[37] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

[38] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 16 considered this criterion and said:

“[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[39] I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[40] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.

[41] An Order¹⁷ reflecting this decision with directions being issued shortly for the hearing of the matter (including the jurisdictional objection made by Hospitality Solutions).

COMMISSIONER

Appearances:

Ms F Martland, the Applicant.

Mr M Basham on behalf of the Respondent.

Hearing (Conference) details:

2020.
Adelaide:
August 18.

Printed by authority of the Commonwealth Government Printer

<PR721942>

 1   Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)

 2 Section 394(3) of the Act

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

4 [2011] FWAFB 975

 5   That is, 21 days from 9 December 2019 (not including 9 December 2019) is 30 December 2019.

 6   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 7   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605

 8   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 9   [2016] FWCFB 349

 10   [2018] FWCFB 3288 at [35]-[45]

 11   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 12   Ibid

 13   Ibid

 14   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 15   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

 16   [2016] FWCFB 6963

17 PR721943