Ms Rowena Singleton v Kalang Respite Care Centre Aboriginal Corporation T/A Kalang Respite Care Centre

[2015] FWC 3616

[2015] FWC 3616

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Ms Rowena Singleton
v
Kalang Respite Care Centre Aboriginal Corporation T/A Kalang Respite Care Centre
(U2015/2174)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 28 MAY 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 Singleton and the respondent ended on 12 November 2014. Ms Singleton lodged her application at the Fair Work Commission on 7 January 2015. Her application was lodged 35 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Ms Singleton, her response to my request that she supply an explanation for her delay dealing with the requirements of the Fair Work Act 2009 (the Act), the Employer Response and the employer’s correspondence dated 21 January 2015.

[4] I decided that this application was best determined after hearing evidence. I listed the application for hearing in Brisbane on 24 April 2015. Due to an unfortunate misunderstanding the solicitor for the respondent did not appear. I provided him with a copy of the transcript and he made subsequent submissions. Ms Singleton responded to those submissions. I considered all of the submissions and evidence.

[5] I issued an Order allowing Ms Singleton’s application for an extension of time and allowed her application on 12 May 2015.

[6] 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.

[7] 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]

[8] 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.

[9] 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)

[10] The reasons Ms Singleton provided for her delay in lodgement were that:

● after making telephone enquiries and an initial assessment online she had mistakenly filed a general protection application within the time prescribed by the Act ;

● on 6 January 2015, at the telephone conference in her general protection application, Senior Deputy President Richards advised her that the correct application for her complaint was an unfair dismissal claim and that she should complete an F2 application and seek an extension of time, and

● she accepted that advice and lodged this application the next day.

She said:

“------ I guess the right forum – I just feel that this has been very stressful on me as a single and a first-time mother having to deal with this situation and then just having it just drag on and drag on.  It’s been very – it’s had a huge impact on my life and financially.

They are.  They have a terrible impact?---And everything – and you know, emotionally, it’s been quite distressing and I just really want – you know – to resolve this and sort of get some natural justice and that’s why – you know – I’ve pursued it.  And, you know, it probably would have been easier for me to back out a while ago, you know, but it’s just the fairness of it.  I was totally – you know – treated with lack of respect and not in a fair manner.  And that’s why I feel it’s unjust and hence why I’m here pursuing and – yes, I just want to be heard and treated fairly.” 1

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

[11] Ms Singleton became aware of the end of her relationship with the respondent on 12 November 2014.

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

[12] Ms Singleton disputed her dismissal by lodging an application pursuant to section 365 of the Act within time and then by lodging this application.

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

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

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

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

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

[16] Having considered all of the matters to which my attention is directed by the Act I was, on balance, exercising my discretion, 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 Singleton's circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

 1   Transcript PN58 - PN59

Printed by authority of the Commonwealth Government Printer

<Price code C, PR567812>