Ms Nemone Marseilles v Calvary Community Care

[2021] FWC 4338

[2021] FWC 4338

FAIR WORK COMMISSION

DECISION

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

Ms Nemone Marseilles
v
Calvary Community Care
(U2021/5899)

COMMISSIONER PLATT ADELAIDE, 23 JULY 2021

Application for an unfair dismissal remedy.

Introduction

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

[2] This decision concerns whether I should exercise my discretion to grant the Applicant, Ms Nemone Marseilles (Ms Marseilles) an extension of time to lodge an unfair dismissal application against the Respondent, Calvary Community Care (Calvary, the Respondent).

Background

[3] On 6 July 2021 Ms Marseilles lodged a Form F2 Unfair Dismissal Application (the Application), pursuant to s.394 of the Act. The Application states that the termination took effect on 6 June 2021.

[4] The Application recognised the Application was out of time and provided the following explanation:

“•  Since the dismissal I have been suffering from high stress and other extenuating medical issues resulting from the suspension.

•  I also have intermittent internet due to the remote location I live (Roxby Downs).

•  I have been waiting for advice from my EAP councillor.

•  Currently I am away seeking medical care and am unable to return home due to COVID restrictions and lockdowns.”

[5] On 13 July 2021 Calvary lodged a Form F3 Employer Response (the Response). The Response states that the dismissal occurred on 4 June 2021 and raised a jurisdictional objection on the basis that the Application was lodged out of time.

[6] On 7 July 2021 I issued directions to the parties and advised that the extension of time issue would be considered at a telephone conference on 20 July 2021. Information about the extension of time issue and the factors that I am required to take into account were provided to the parties. The Applicant was directed to provide the Commission, and the Respondent, with a statement explaining the reasons why the Application was lodged out of time, and any documents to be relied upon, by 15 July 2021. However, the Commission did not receive any written submission from Ms Marseilles.

[7] The hearing on 20 July 2021 was deferred to 21 July 2021 as a result of the South Australian Covid 19 lockdown, which occurred on the day Ms Marseilles was travelling from Queensland to her residence in Roxby Downs.

Hearing

[8] A hearing was conducted by way of telephone conference on 21 July 2021. A sound file record of the telephone conference was kept. Ms Marseilles represented herself. The Respondent was represented by Ms Belinda Watson and Mr Lock Vandenberg.

[9] Ms Marseilles gave evidence at the hearing. Her position is relevantly summarised as follows:

•  Ms Marseilles was dismissed on 4 June 2021.

•  Ms Marseilles sought assistance from an Employee Assistance Program provider (EAP). On 17 or 18 June 2021 they advised Ms Marseilles that she should file a claim with the Fair Work Commission.

•  On 4 July Ms Marseilles travelled to Queensland to be with her grandson over the school holidays.

•  When Ms Marseilles arrived in Queensland, she sought assistance from her relatives to file the Application.

•  Ms Marseilles contended that she was stressed, not computer savvy, and very emotionally drained from the process of lodging documents to the Commission.

•  Ms Marseilles contended that the internet connection at Roxby Downs was ‘patchy’.

•  Ms Marseilles also contested the merits of the dismissal.

[10] The Respondent contended that the circumstances were not exceptional and made no submission that it would suffer prejudice.

Applicable Law

[11] 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.”

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

[13] 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 Ltd,⁴ 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

[14] During the hearing it was agreed that the date of dismissal was 4 June 2021, as stated on the dismissal letter. This Application was made 11 days outside the statutory 21 day time limit and therefore can only be pursued if an extension of time is granted.

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

[15] 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. 5 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,6the 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.”

[16] 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: 7

“[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.”

[17] Whilst it is unusual for an EAP to provide representation for an unfair dismissal claim, I accept that Ms Marseilles sought their assistance. I accept that the EAP recommended that Ms Marseilles file an unfair dismissal claim on or about 17 or 18 June 2021.

[18] Having received this advice, Ms Marseilles waited until after she travelled to Queensland to be with her grandson on school holidays to file her claim, which was a further 18 days. Ms Marseilles contends that this was attributed to the internet difficulties she was experiencing in Roxby Downs, and that she needed the support of a relative to submit the claim. I am not persuaded that internet difficulties is a reasonable explanation for the lengthy delay. Roxby Downs is well serviced from a communications perspective. Further, there is no evidence before me to support a finding that the ‘patchy’ internet access prevented Ms Marseilles from lodging the Application prior to travelling to Queensland. There are other lodgement options that were available to Ms Marseilles that do not require internet access. I am not persuaded that access to the internet in Roxby Downs reasonably prevented Ms Marseilles from filing the Application in a timely manner.

[19] No evidence was submitted to support any medical condition that impacted Ms Marseilles’ capacity to lodge the Application on time and/or require the assistance of a relative. It is common for employees to suffer shock and trauma (as did Ms Marseilles) as a result being dismissed 8 however, this of itself is not an exceptional circumstance.

[20] In addition, ignorance of the statutory time limit is not an exceptional circumstance. 9

[21] I am not persuaded that any South Australian lockdown impacted Ms Marseilles in the period between 25 June and 6 July 2021 because no lockdown occurred. Further, I was not provided with sufficient information of how any Queensland Covid 19 lockdown prevented Ms Marseilles from filing the Application. I note that the Application was filed electronically.

[22] Ms Marseilles has not adequately explained the delay between 25 June 2021 (the last day to file) and 6 July 2021, 11 days later.

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

[23] Ms Marseilles was aware of the dismissal on the date it occurred.

[24] This factor weighs against a finding that there are exceptional circumstances.

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

[25] Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time. 10

[26] Ms Marseilles did not take any action to contest the dismissal. Seeking advice from an EAP is not, in my view, action taken to contest the dismissal. I have determined that this is a neutral factor in granting an extension of time.

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

[27] Prejudice to the employer will weigh against granting an extension of time. 11 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.12

[28] There is no submission that an extension of time to file the Application would prejudice Calvary. Therefore, this is not a relevant factor and is a neutral consideration in determining whether to grant an extension of time.

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

[29] The merits of the Application turn on contested points of fact. If an extension of time were granted, evidence on those contested facts would be heard in a merits hearing. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”. 13 The same applies to s.394(3)(e).

[30] In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case to which the Respondent has an apparent defence.

[31] In the circumstances, I find that it is not possible to make an assessment of the merits of the application and that this is a neutral consideration in determining whether to grant an extension of time.

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

[32] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 14 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.”

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

Conclusion

[34] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act. I am not persuaded to exercise my discretion to grant Ms Marseilles an extension of time to lodge an application for unfair dismissal remedy. The application is dismissed.

[35] An Order¹⁵ reflecting this decision will be issued.

COMMISSIONER

Appearances:

N Marseilles, the Applicant.

B Watson and L Vandenverg, the Respondent.

Hearing details:

2021.
Adelaide:
July 21.

Printed by authority of the Commonwealth Government Printer

<PR731930>

 1   Section 394(2)(a) of the Act. Note that the 21 days for lodgement 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   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]

 6   [2016] FWCFB 349

 7   [2018] FWCFB 3288 at [35]-[45]

 8   Rose v BMD Constructions Pty Ltd[2011] FWA 673

 9   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23]

 10   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

 11   Ibid

 12   Ibid

 13   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36]

 14   [2016] FWCFB 6963

15 PR732065