Ms Maxine Chartier v Community Solutions Group

[2018] FWC 2933

[2018] FWC 2933

FAIR WORK COMMISSION

DECISION

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

Ms Maxine Chartier
v
Community Solutions Group
(U2018/1176)

COMMISSIONER HUNT BRISBANE, 25 MAY 2018

Application for an unfair dismissal remedy – application made out of time – applicant attempted to lodge using online lodgment service – short delay – applicant acted promptly to clarify uncertainty – extension of time granted.

[1] Ms Maxine Charter was employed by Community Solutions Group (CSG) from 10 November 2015 until her employment was terminated on 16 January 2018. Ms Chartier has made a claim for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that her dismissal was harsh, unjust or unreasonable.

[2] Ms Chartier made her application on 7 February 2018.

[3] Section 394 of the Act states:

‘394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

…

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

(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.’

[4] For Ms Chartier to have made her application within the statutory time limit of 21 days after the dismissal took effect, the application needed to have been filed by 6 February 2018. The application has been made one day out of time.

[5] Ms Chartier seeks an extension of time within which to make her application.

[6] Directions were issued for the filing of material and both parties agreed that the matter could be dealt with on the papers. I am satisfied that that a hearing is not required and the matter can be dealt with on the material before the Commission.

Summary of Ms Chartier’s evidence and submissions

[7] Ms Chartier stated that after her dismissal she had suffered a complete breakdown and didn’t eat or get out of beds for weeks. Ms Chartier further stated that she suffered major concentration issues and could not complete basics tasks such as cook dinner for a child in her care. The child in her care at the time was aged 13 and is Ms Chartier’s niece.

[8] Ms Chartier’s evidence is that she attempted to complete the ‘online form’ eight times without completing it. It is noted that the application form is dated 5 February 2018. On 6 February 2018, with the assistance of Ms Chartier’s niece, she was able to complete the form. It is her evidence that she had difficulties uploading it on the Fair Work Commission (Commission) Online Lodgment Service (OLS), and could not determine if it had been uploaded.

[9] At 7:54pm on the final day of the statutory time limit, Ms Chartier sent feedback via the OLS ‘complaints’ email regarding her attempted lodgment as follows:

‘Name: Maxine Chartier

Have you come to the Online Lodgment Service as: an applicant

What does your feedback relate to? Submitting the form

Please provide your feedback here: I have no idea if my form has been submitted, now I cant see it

How would you like to be contacted: Phone [redacted]

What time of day suits you to be contacted? Any

State or Territory: Queensland’

[10] The following morning the Commission’s ‘complaints’ email account forwarded the above feedback to the Commission’s Brisbane Registry Manager, Ms Amos. At 10.26am Ms Amos emailed the Commission’s Brisbane Registry, a team managed by her requesting the team check to see if the lodgment had been received and to respond. The subject heading of the email to the team is titled, ‘TC made, no answer, left VM.’ The subject heading is taken to read: Telephone call made, no answer, left voice message.

[11] At 11.40am on 7 February 2018 Ms Chartier emailed the Commission’s Brisbane Registry attaching her application. Her email stated, “Please find attached my completed form. I have been having issues to submit this and I have been advised to emails (sic) form and then I will be contacted for payment.”

Summary of CSG’s evidence and submissions

[12] With respect to the reason for the delay, CSG did not seek to contest the reasons proffered by Ms Chartier for the delay, that is, that she had issues using the OLS.

[13] CSG contended that Ms Chartier was aware of her dismissal on and from 16 January 2018. CSG relied on a statement of Ms Kim Sheather, Business Leader Customer Solutions. Ms Sheather’s evidence is that on 16 January 2018 a member of her team received a call from a person who described themselves as a ‘friend of Maxine’s’ and was enquiring why [CSG] had ‘just sacked Maxine Chartier’.

[14] CSG is not aware of any other action that has been taken, other than the unfair dismissal application. CSG conceded Ms Chartier disputed the reasons given to her by CSG for her dismissal, but that her objections were ‘based on her feelings that she was directed by management regarding the incident raised on 14 December 2017’.

[15] With respect to prejudice caused to the employer, CSG made submissions regarding a conciliation conference conducted by the Commission relevant to this application. It is CSG’s submission that Ms Chartier asked for the conciliation to be adjourned once it was underway, and Ms Chartier failed to return the conciliator’s phone calls. The organisation has now had to deploy additional resources and will do so if the extension is granted.

[16] CSG submitted there is no merit to Ms Chartier’s application, and CSG took reasonable management action through a robust performance management process.

[17] It was contended that Ms Chartier’s dismissal was based on recurring issues relating to professional boundaries, together with Ms Chartier displaying a lack of insight and understanding of how her actions and behaviours impact CSG’s clients.

Applicable Case Law

[18] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd¹where 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]

[19] For exceptional circumstances to arise as contemplated by s.394(3) 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 s.394(3) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[20] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 2, a Full Bench of the Commission rejected the finding at first instance that that the decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers3 stood for a decision rule that, absent a credible explanation for the entirety of the delay there could be no finding of exceptional circumstances. The Full Bench reaffirmed the test for exceptional circumstances as follows:4

‘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.’ (original emphasis)

Consideration

The reason for the delay

[21] The reason for the delay asserted by Ms Chartier is primarily that the dismissal caused her to suffer a ‘breakdown’ and that she also had technical difficulties lodging the application using the Commission’s OLS.

[22] It is well accepted that employees may suffer a level of shock and trauma as a result of dismissal from employment. However it is incumbent on the person making the assertion to demonstrate a level of incapacity which created abnormal circumstances. 5

[23] Ms Chartier described her condition as being one that prevented her, at times, from doing certain things; however she has not sought to adduce or rely on any medical evidence to support her claim of incapacity.

[24] Whilst I accept Ms Chartier’s unchallenged statement that her dismissal caused her a level of mental anguish, there is insufficient evidence before the Commission of a level of any measure of incapacity which would create abnormal circumstances. I find there is nothing unexceptional about the shock and trauma Ms Chartier claims to have experienced as a result of her dismissal. However her evidence does provide some context in relation to her actions during the 21 day period and the second reason stated by Ms Chartier as causing the delay in the proper lodgment of the application.

[25] The second reason for the delay proffered by Ms Chartier related to difficulties she had using the Commission’s OLS. It is clear from the material before the Commission she made an unsuccessful attempt, with the help of her niece, to file the application using the OLS within the statutory time limit.

[26] At 7:53pm on 6 February 2018, Ms Chartier used the OLS feedback system to seek clarification on whether she had lodged her application. This prompted the Commission to contact her the next day to provide assistance to her with lodging her application.

[27] Whilst some criticism can be levelled at Ms Chartier for having only sought to contact the Commission late on her last day for filing, she could not have foreshadowed the difficulties she says, and I accept, she experienced in lodging the application. Ms Chartier appropriately sought assistance from her niece who was able to help her complete the application up until the point of lodgment.

[28] Ms Chartier evidently experienced some issues when it came to the actual lodgment of the completed form, and in light of the fact that it was out of business hours, communicated contemporaneously seeking clarification of lodgment. For obvious reasons that communication to the Commission could not be attended to until the following day, after which time Ms Chartier promptly lodged her application.

[29] In light of the circumstances I have determined the reasons for the delay weigh in favour of exercising the discretion to grant the extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[30] Ms Chartier became aware of the dismissal immediately as it occurred. Accordingly, this is a neutral factor in considering whether to exercise the discretion to grant an extension.

Any action taken by the person to dispute the dismissal

[31] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 6

[32] There is no evidence before the Commission that Ms Chartier took steps to dispute the dismissal prior to the filing of the unfair dismissal application. Accordingly, this is a factor which weighs against Ms Chartier in considering whether to exercise the discretion to grant an extension.

Prejudice to the employer (including prejudice caused by the delay)

[33] The delay of one day will not cause any prejudice to the employer.

[34] I have considered CSG’s submissions and I find that it has not demonstrated that any other prejudice will be suffered by it as a result of the application being filed late that would not have occurred had the application been filed on time.

[35] This is a neutral factor when considering whether to exercise the discretion to grant an extension.

The merits of the application

[36] In the matter of Kornicki v Telstra-Network Technology Group⁷ the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:⁸

‘If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.’

[37] After considering the material filed by the parties in relation to the substantive application (the Form F2 application and the Form F3 Employer Response), it is clear that there are some factual disputes between the parties and it is not apparent that the application is without merit or that merit is anything other than a neutral consideration.

Fairness as between the person and other persons in a similar position

[38] Neither party made relevant submissions as to the relative fairness as between the applicant and other persons in a similar position.

[39] A relevant principle in consideration of this criterion was articulated by the Full Bench in Perry v Rio Tinto Shipping Pty Ltd: 9 

‘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.’

[40] In Kelly v Atanaskovic Hartnell 10, Commissioner Ryan granted an extension of time for an applicant who genuinely, but mistakenly believed they had lodged an application online. The applicant then awaited a period of three days for the Commission to make contact with her to obtain her credit card details before she contacted the Commission herself to learn that the application had in fact not been filed. The Commissioner’s decision to grant an extension of time to the applicant was upheld by a Full Bench on appeal.11

[41] While the facts of the case are similar, they differ in some respects from the case before me. For example in Kelly there was a belief that the Commission would contact the applicant to obtain payment details within three days, which was a contributing factor of the delay. It is sufficient to say that the first instance and subsequent Full Bench decision in Kelly support a proposition that, for persons in a similar position to Ms Chartier, the Commission has had regard to the actions taken by an applicant; and if their belief is that they considered, albeit mistakenly that an application had been lodged, or that they made every attempt to properly lodge the application, these considerations will carry some weight in the exercise of the discretion in favour of the applicant.

[42] This is a factor which weighs in favour of exercising the discretion to grant the extension of time.

Conclusion

[43] I have considered and weighed each of the criteria set out in s.394(3) of the Act. I am satisfied that there are exceptional circumstances as considered in the authority in Nulty for me to exercise my discretion to extend time

[44] I have therefore determined to exercise my discretion to extend the time for Ms Chartier to lodge her application to 7 February 2018.

[45] The application will be listed for directions telephone conference before me.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR607382>

1 [2011] FWAFB 975.

 2   [2018] FWCFB 901.

 3 (2010) 197 IR 403 at [16]-[18].

 4   [2018] FWCFB 901 at [38].

 5   Rose v BMD Constructions Pty Ltd[2011] FWA 673 at [10] (Roe C).

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

7 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

8 Ibid.

 9   [2016] FWCFB 6963 at [41].

 10   [2016] FWC 9205.

 11   Atanaskovic Hartnell v Kelly[2017] FWCFB 763.