Ms Judy Astridge v St Vincent's Hospital Sydney Limited T/A St Vincent's Hospital

[2013] FWC 9162

[2013] FWC 9162

FAIR WORK COMMISSION

DECISION

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

Ms Judy Astridge
v
St Vincent's Hospital Sydney Limited T/A St Vincent's Hospital
(U2013/3358)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 21 NOVEMBER 2013

Termination of employment - extension of time.

[1] Ms Astridge’s employment with St Vincent's Hospital Sydney Ltd trading as St Vincent's Hospital (St Vincent's) ceased on 10 September 2013. Ms Astridge lodged an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act) on 9 October 2013. Her application was lodged eight days beyond the statutory time limit.

[2] Ms Astridge submitted that the late lodgement of her application arose because she was waiting for a reply from St Vincent's solicitors, before lodging her application. Her solicitors had written to St Vincent's solicitors on 30 September 2013. They responded on 8 October 2013. She lodged her application on 9 October 2013.

[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.

“S394 Application for unfair dismissal remedy

(3) FWC may allow a further period for the application to be made by a person under subsection (1) if 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.”

[4] I have considered the discussion of exceptional circumstances by Justices Allsop and Branson in Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd. 1Justice Allsop, following a discussion of previous authority, concluded that if rights are to be set aside or circumstances altered, as in this case by an extension of time, then the exceptional circumstances relied on must be “...circumstances sufficient to justify that outcome.”2

[5] Justice Branson said “To put the matter another way, ‘exceptional circumstances’ are simply circumstances sufficient to render it just and equitable to grant relief notwithstanding that the grant of relief will defeat rights of unsecured creditors.” 3 In Maan v Minister for Immigration and Citizenship4 Branson J again discussed “exceptional circumstances”, in that case in relation to non-compliance with a visa condition. She said:

“[51] Although the expression “exceptional circumstances” is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

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. (cf Baker v The Queen (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[25])” 5

(my emphasis)

[6] This approach was adopted by Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd T/A Joy Mining Machinery. 6I have also adopted that approach.

[7] Ms Astridge’s explanation for her delay in lodgement might well have provided a reason to grant an exception to the time limit had the correspondence from her solicitor been in any way directed towards the cessation of her employment. However, the correspondence from her solicitors was exclusively addressed towards a previous grievance and access to the investigation file in relation to that grievance. There was nothing in the correspondence which would have had any relevance to the lodgement of an application pursuant to section 394 of the Act.

[8] In addition, having considered the material provided by Mrs Astridge, I am satisfied that her application for an unfair dismissal remedy could not be successful.

[9] For these reasons Ms Astridge’s application for an extension of time for the lodgement of her application is dismissed.

SENIOR DEPUTY PRESIDENT

 1 [2003] FCAFC 256.

 2   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [192]

 3   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [28]

 4 [2009] FCAFC 150

 5   Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 para [51]

 6   [2010] FWA 1394 [PR994029] - 25 February 2010

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