Ms Justine McCauley v Office HQ

[2015] FWC 3654

[2015] FWC 3654

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Ms Justine McCauley
v
Office HQ
(U2015/1398)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 2 JUNE 2015

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 McCauley and the respondent ended on 2 March 2015. Ms McCauley lodged her application at the Fair Work Commission on 27 March 2015. Her application was lodged 4 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Ms McCauley. I wrote to her on 13 April 2015 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 McCauley provided a statement on 22 April 2015. At my request the respondent's solicitors, although they had not sought permission to appear, provided a detailed submission on 11 May. I accepted and considered the submission.

[4] I issued an Order allowing her application for an extension of time on 19 May 2015.

[5] 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.

[6] 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]

[7] 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.

[8] 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)

[9] The reasons Ms McCauley provided in her application for her delay in lodgement were that:

● she had been mentally upset by her dismissal;

● she had been seeing a psychologist since her dismissal;

● she had attempted an overdose of sleeping pills since her dismissal;

● she had sustained a hand injury which made it difficult to work, which added difficulty to her submitting a form;

● completing the application caused her to become tearful and be "mentally down" making the process of lodgement very difficult for her.

[10] In response to my correspondence she provided the following statement:

“Since my dismissal from the above employer I have suffered significant anxiety and stress. I found the task of submitting the application very stressful which would bring on anxiety attacks leaving me shaking and mentally disturbed even to the extent of trying to take my own life with an overdose of pills.

I had initial care with Mental Health, Artius and now still seeking psychological treatment with my Psychologist Charmaine Daly. Also, while I was employed with my ex employer I had injured my Ganglion Tendon in my left thumb which has required me to wear a splint. I found it difficult as well to type out information for the unfair dismissal form with splint on and I am not allowed to take splint off for any long periods of time. All this information has been included with my initial application.

Due to my mental state and anxiety that I still have when it comes to dealing with this situation I had such difficulty to sit at my office computer and take this task on board. Even now, it (sic) still have anxiety when entering into my home office, my place of employment with Office HG for almost 2 years.

I did not have anyone available to assist me at the time to help with the application. It was a task that I was faced with alone. I did discuss with Artius and my Psychologist and was advised that best thing is to take my time with all of it as mentally I haven’t been strong enough to deal with this.

Please understand that I went through almost a year of bullying and harassment with this business and then to lose a job that fulfilled me financially and allowed me to be at home with my sick husband, the detrimental impact is very vast and various.

I do hope you will consider my explanation and allow me this extension and allow my remedy for unfair dismissal to be granted.”

[11] Ms McCauley also supplied a medical report from Dr Paul Douglas dated 20 April 2015. The substance of that report is extracted below:

“Thank you for your consideration of the case of Mrs Justine McCauley age 45 yrs.

Apparently she has failed to lodge the application seeking a remedy for unfair dismissal within 21 days, as stipulated by the Fair Work Act 2009. Apparently she lodged it at Day 23 post dismissal.

I would ask that you still honour her application, even though it fell outside the stipulated 21 days. The reasons for this are:

1. the dismissal caused her very significant anxiety and stress, requiring counselling by a psychologist from the day of the dismissal

2. her attempts to collate the required information caused her significant anxiety and stress, with features consistent of Post-Traumatic Stress Disorder.

3. her dismissal caused significant financial stress for her and her family. Efforts to address this shortfall and its implications required her focused attention during the initial 21 day period.

It is worth noting that even today the impact of the dismissal causes fear, anxiety, and stress with respect to even entering her home workplace (she used to work as a virtual receptionist from home).

Many thanks for your ongoing consideration of her care. Please don’t hesitate to contact me if needed.”

[12] The respondent provided submissions regarding the applicant’s stress and anxiety and referred to, and relied upon, other decisions, particularly a decision of Commissioner Bissett in Gaelene Manson v Marthakal Homeland Resource Centre Inc. 1

[13] With respect to the respondent's submissions, each application must be determined on its own facts. The decision is a discretionary one. In the exercise of my discretion, balancing all factors, I was persuaded that Ms McCauley’s psychiatric difficulties, for which she had medical support, were out of the ordinary, unusual or uncommon. I was not persuaded that her hand injury, although a complicating factor, was a matter that prevented her lodgement within time.

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

[14] Ms McCauley became aware of the end of her relationship with the respondent on 2 March 2015.

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

[15] Ms McCauley disputed her dismissal by lodging this application.

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

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

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

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

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

[19] Having considered all of the matters to which my attention is directed by the Act I was satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis I allowed the application. I was satisfied that Ms McCauley’s circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

 1   [2015] FWC 2880

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