Ms Rose-Marie James v Surfside Buslines Pty Ltd

[2016] FWC 8231

[2016] FWC 8231

FAIR WORK COMMISSION

DECISION

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

Ms Rose-Marie James
v
Surfside Buslines Pty Ltd
(U2016/8267)

COMMISSIONER HUNT BRISBANE, 16 NOVEMBER 2016

Application for relief from unfair dismissal — application made out of time — extension of time not granted — application dismissed.

[1] This decision, now edited, was given ex tempore at the conclusion of proceedings on 1 November 2016.

[2] On 8 July 2016, Mrs Rose-Marie James filed an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming she was unfairly dismissed by Surfside Buslines Pty Ltd (Surfside Buslines).

[3] Surfside Buslines has objected to the Fair Work Commission (the Commission) exercising its jurisdiction to deal with the application because, as submitted by Surfside Buslines, the application was lodged more than 21 days after the dismissal took effect.

[4] I have conducted a hearing in relation to the jurisdictional objection and delivered an ex tempore decision.

[5] It is necessary for the Commission to determine on the evidence before it, what day Mrs James’ dismissal took effect. This will then determine if the application is within time, or if it is made beyond the 21 day time limit whether an extension should be granted.

[6] The determination of the date of the dismissal is not a discretionary one. It will be determined on the facts.

[7] If the application has been made out of time, then the decision to grant an extension or not is a discretionary decision.

[8] During the hearing, Mrs James was granted leave to be represented by a paid agent, Mr Law of Walk Industrial Services Pty Ltd. Surfside Buslines was represented by Mr McDonald of the Australian Public Transport Industrial Association.

[9] Two witnesses for Surfside Buslines gave evidence. Mrs James gave evidence, as did her son, Mr Michael James.

[10] If the dismissal of Mrs James took effect on 16 June 2016, as submitted by Surfside Buslines, the filing of the application on 8 July 2016 results in the application having been made one day out of time.

[11] It is Mrs James’ contention that because she was issued with a Centrelink Separation Certificate dated 29 June 2016, and received by her on or around 1 July 2016 that nominates her termination date as 17 June, the application has been made on the last day of the 21 day time limit.

[12] Further, it is submitted that because a termination letter was issued to her dated 17 June, and received by her on or around 1 July, the effective date of the termination is 17 June.

[13] For Surfside Buslines, Mr Martin Hall, General Manager gave evidence that he met with Mrs James and her son, as a support person on 16 June 2016. The dismissal took effect on this day, with Mr Hall informing Mrs James that her employment was terminated with immediate effect.

[14] Mr Daniel O’Halloran, Assistant General Manager was also in attendance at the meeting of 16 June. It is Mr O’Halloran’s evidence that Mr Hall verbally informed Mrs James that her employment had been terminated with immediate effect.

[15] In cross-examination, Mrs James agreed that she had been informed her employment had been terminated on 16 June. She agreed that she understood this. Her son, Mr James also understood the employment to have ended on this date.

[16] On being informed of the termination on 16 June, Mrs James visited upon three law firms to obtain advice as to her capacity to bring an unfair dismissal claim. Her evidence is that the firms were not interested in representing her. Mrs James denies that she was informed by any representatives of these firms that she had 21 days to bring her unfair dismissal claim.

[17] On receipt of the separation certificate nominating 17 June as the termination date, and the termination letter dated 17 June, Mrs James concluded that she had until 8 July to bring her application. It is understood that Mrs James did know that there was a 21 day time limit, as her evidence is that she thought by filing by 8 July that she was within time.

[18] Mrs James’ evidence is that she spoke with Fair Work on a number of occasions before filing the application. It is not clear if she telephoned the Fair Work Commission or the Fair Work Ombudsman.

[19] Mrs James completed the form by hand on 7 July, and visited a printing place on 8 July to assist with scanning of some documents. She then ultimately faxed the application to the Fair Work Commission on 8 July.

[20] It was put by Mr Law that because Mrs James received a termination letter dated 17 June, that is when she was notified of the termination. Additionally, the separation certificate nominates 17 June.

[21] Mr Hall’s evidence is that the 17 June termination letter clearly articulates 16 June as the termination date. The letter was not written until 17 June and it is submitted that it is an acceptable business arrangement to confirm in writing the oral termination.

[22] Mr Hall’s evidence is that the date on the separation certificate, that being 17 June is an administrative error.

[23] It was put by Mr McDonald that given Mrs James did not receive the termination letter or the separation certificate until around 1 July, she understood from 16 June that she had been dismissed. It is disingenuous to argue that from receipt of these documents she understood her date of termination to be 17 June.

[24] On the evidence before me, I am satisfied that Mrs James was informed verbally on 16 June that her employment had ended with immediate effect. While Mrs James denies she was informed that it was with immediate effect, it is ultimately of no consequence if these additional words were stated by Mr Hall or not. Mrs James confirms that she understood at the end of the meeting that her employment had ended. She was instructed to return her uniform and cash float.

[25] Mr James’ evidence is to the same effect. Being present at the meeting, he too understood that his mother’s employment had come to an end.

[26] It is understood that Mrs James had a number of domestic issues to attend to following the dismissal. I will turn to these issues later in consideration of the reasons for the delay in bringing the application.

[27] I find that the receipt of the termination letter dated 17 June, confirming the dismissal effective of 16 June, and the letter being received around 1 July does not alter in any way the communication made by Surfside Buslines to Mrs James on 16 June. If a termination letter had not been sent at all, it would not have altered the effect of the oral dismissal on 16 June, understood by Mrs James.

[28] I also find that the receipt of the separation certificate on or around 1 July, nominating 17 June as the dismissal date does not alter in any way the communication made by Surfside Buslines to Mrs James on 16 June. It might affect the reasons for the delay in bringing the application, but it does not affect when the dismissal occurred.

[29] Accordingly, I determine that Mrs James was dismissed by Surfside Buslines on 16 June. The application is one day out of time, and it is necessary to determine the application pursuant to s.394 in consideration of whether to grant an extension to the application or not.

[30] The relevant test in s.394(3) of the Act is whether the Commission is satisfied that there are exceptional circumstances taking into account:

‘394 Application for unfair dismissal remedy

…

(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.’

[31] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 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]

[32] For exceptional circumstances to arise as contemplated by s.394 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.

Consideration

Section 394(3)(a) - The reason for the delay

[33] Mrs James’ evidence for the reason for the delay is that, having received the termination letter dated 17 June, and the separation certificate stating 17 June, she calculated the first day of the 21 day limit from 18 June. This would result in the application having to be filed by 8 July, the date that she did file it.
[34] Having seen three law firms who did not wish to represent her, or she could not afford, she completed the form herself on 7 July and filed it on 8 July. To her mind, she considered that the application was within time.

[35] Mrs James was also experiencing a number of domestic issues. Her husband was overseas for the first week of the 21 day time limit. Additionally, as a result of the loss of employment, Mrs James had to urgently attend to the cancellation of a home she and her husband had committed to purchasing. It is Mrs James’ evidence that she had to act quickly to be within the cooling off period.

[36] Mrs James also had around two medical appointments in June following the dismissal, and then two hospital visits on 6 July. When asked by me if Mrs James’ medical issues following the dismissal were a substantive reason for the one day delay, Mrs James conceded that they were not.

[37] Principally, the reason for the delay is that upon receipt of the separation certificate – more so than the termination letter – Mrs James considered that she had until 8 July to file the application. From 1 July she considered that she was in a position to file the application as a self-represented applicant.

[38] In Nulty, the Full Bench said:

‘[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.’

[39] Mrs James’ explanation for considering 18 June as day of the 21 day time limit is understandable. However, it is not correct, and the separation certificate was not the only document available to Mrs James to help determine the day of termination.

[40] Her evidence is that she knew on 16 June the dismissal had taken effect. Even on receipt of the termination letter dated 17 June, the letter is itself clear that the dismissal had taken effect on 16 June, and the letter was simply confirming in writing the termination.

[41] Mrs James visited upon three law firms and spoke with the Fair Work Commission or the Fair Work Ombudsman on at least two occasions. Her husband was home from overseas for the majority of the time within the 21 day time limit. Her adult son who acted as her support person during the dismissal was available to consult. If Mrs James did not canvass with any of these firms, organisations or family members the effective date of her dismissal being 16 June, and not 17 June, it was at her peril.

[42] It is not an adequate explanation to explain the delay by reference to the separation certificate received on or around 1 July to misplace the date of termination that had been earlier understood by Mrs James.
[43] I have had regard to the application form completed by Mrs James, and note that Mrs James nominated the date the dismissal took effect as 16 June, and the date she was notified of the dismissal as 17 June. The 17 June date cannot be correct, as she did not receive the termination letter until 1 July on her evidence. I do not suggest in any way that Mrs James has contrived the 17 June termination date in order to escape the application being out of time. In fact, the opposite is true. I accept that Mrs James genuinely considered she could bring her application within time by 8 July.

[44] Mrs James has not provided an adequate explanation as to why she did not make the application by 7 July. As I have concluded, I accept Mrs James’ understanding as to why she thought she had until 8 July, but she was incorrect. I do not find with respect to the reasons for the delay that they are exceptional circumstances, when she had full and direct knowledge of the dismissal on 16 June.

[45] Mrs James’ explanation for the reasons for the delay does not support a finding for the granting of an extension of time.

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

[46] On the evidence before me, I am satisfied that Mrs James first became aware of the termination of employment on 16 June in a meeting held with Mr Hall, Mr O’Halloran and her son, Mr James as a support person. This is therefore not a circumstance where Mrs James only became aware of her termination at some point after the time it occurred.

[47] Accordingly, this is a neutral factor in my consideration.

Section 394(3)(c) - Any action taken by the person to dispute the dismissal

[48] 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. 2

[49] There is no evidence before me that Mrs James sought to dispute the dismissal with Surfside Buslines until the filing of the unfair dismissal application. I am satisfied, however, that Mrs James sought out legal advice with respect to the dismissal by visiting three law firms and seeking the advice of the Fair Work Commission or the Fair Work Ombudsman.

[50] Mrs James had access to the forms that needed to be completed and did complete, in part, the forms on 7 July.

[51] This is a neutral factor in my consideration.

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

[52] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to Surfside Buslines if an extension of time is to be granted.

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

[53] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[54] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission "should not embark on a detailed consideration of the substantive case" 3 for the purpose of determining whether to grant an extension of time to an applicant to make their application.

[55] It is sufficient to say that I am satisfied that Mrs James’ application is not without merit.

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

[56] There is no evidence before the Commission with respect to persons in a similar position and fairness between the parties.

[57] This is a neutral consideration.

Conclusion

[58] I am satisfied on the evidence and submissions before the Commission that the explanation provided by Mrs James does not demonstrate exceptional circumstances. The circumstances experienced by Mrs James at the loss of her employment are no doubt greatly felt by Mrs James, and this should not be underestimated. She considered herself to be a good employee. The evidence before the Commission is that there were no disciplinary issues that had been raised with her before the incident in early June 2016.

[59] Taking into account all relevant factors, and principally for the reason that I do not consider there to be an acceptable explanation for the delay in Mrs James making her unfair dismissal application, I am not satisfied there are exceptional circumstances that would warrant allowing a further period for her for the making of an application for unfair dismissal remedy. In forming this view I have given consideration not only to the particular circumstances of Mrs James’ case but also to the criteria set out within s.394(3) of the Act.

[60] For these reasons, I decline to grant an extension of time pursuant to s.394 of the Act and have issued an Order 4 dismissing Mrs James’ application as being out of time.

COMMISSIONER

 1   [2011] FWAFB 975.

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

 3   Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [14].

 4   PR587125.

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