Ms Samantha Lee Zecchini v Vegie Bandits Pty Ltd T/A Galati Group
[2017] FWC 222
•11 JANUARY 2017
| [2017] FWC 222 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009 s.394 - Application for unfair dismissal remedy
v
Vegie Bandits Pty Ltd T/A Galati Group
(U2016/12047)
COMMISSIONER PLATT | ADELAIDE, 11 JANUARY 2017 |
Application for relief from unfair dismissal
[1] Ms Samantha Zecchini lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Vegie Bandits Pty Ltd T/A Galati Group (Galati).
[2] Ms Zecchini’s application lodged on 3 October 2016, advised her dismissal took effect on 25 August 2016 and that since the dismissal she became quite depressed and withdrawn and was not in the right ‘headspace’ to make a claim.
[3] On 5 December 2016, my Associate corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 11 January 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Ms Zecchini was directed to provide a statement concerning the extension of time and any documents to be relied upon by 2 January 2017. Galati was invited to file any material in reply by 9 January 2017.
[4] No submission was received from Ms Zecchini and on 5 January 2016 my associated advised Ms Zecchini that a failure to provide any submission would result in the Commission determining the matter on the material before it, and further that if she failed to attend the hearing on 11 January 2016 the matter would be determined in her absence.
[5] On 12 October 2016 a Form F3 Employer response was lodged by Galati. Galati advised that the dismissal took effect on 26 August 2016, and objected to the matter being heard on the basis that it was out of time. Galati contended that Ms Zecchini was suffering from depression prior to her dismissal after a warning in January 2016, and a final warning in May 2016 for absenteeism and late attendance.
[6] No submission was received from Ms Zecchini or Galati.
[7] A hearing was conducted by way of teleconference on 11 January 2017. Ms Zecchini did not attend the conference and was unable to be contacted by my Associate. Galati was represented by Ms Angelique Pistilli (HR/Payroll Manager). A sound file record of the telephone conference was kept.
[8] The position of Ms Zecchini as contained in her application is summarised as follows;
● On 25 August 2016 her employment was dismissed.
● The basis of the dismissal is contested.
● Since the dismissal she was depressed and withdrawn from family and friends and was not in the right head space to think of making a claim until 3 October 2016.
[9] The position of Galati is summarised as follows;
● Ms Zecchini’s employment was terminated with payment in lieu of notice on 25 August 2016 after a warning process for absenteeism and late attendance.
● Galati was aware that Ms Zecchini suffered from depression during her employment but was taking medication and other than her attendance issues was able to perform her work as an Account Payable clerk.
● Ms Zecchini commenced university studies in journalism during her employment.
● The extension of time application is opposed.
Applicable Law
[10] Section 394 relevantly states:
“394 Application for unfair dismissal 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.”
[11] Ms Zecchini’s unfair dismissal application was made 18 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
[12] I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd1 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
[13] Ms Zecchini has not provided any further submissions or information in support of her claim other than the application itself. There is no medical evidence to support the suggestion that she was suffering from depression and/or how this condition impacted on her ability to make a claim.
[14] From the information provided by Galati, Ms Zecchini’s condition did not impact on her capacity to perform work at the suitable standard nor prevent her from undertaking University studies.
[15] The applicant needs to provide a credible explanation for the entire period of the delay. 2
[16] In light of the submission of Galati, and the absence of any supporting medical evidence I am not satisfied that Ms Zecchini’s medical condition explains the delay in the lodging of her unfair dismissal claim.
[17] There is no information before me to suggest that, apart from the late lodgement of this application, Ms Zecchini took other action to dispute the termination of her employment.
[18] In terms of the merits of the application, Ms Zecchini disputes the allegations of lateness and asserts her work was of a high standard. In light of the factual dispute whether over the conduct which led to the dismissal on 25 August 2016, I have regarded the merits of the matter as a neutral factor with respect to the extension of time issue.
[19] It was not submitted that an extension of time would prejudice Galati.
[20] Considerations of fairness relative to other persons in similar positions, is not relevant in this matter.
Conclusion
[21] For the reasons I have set out above, I am not satisfied that Ms Zecchini’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order 3 reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
The Applicant did not appear.
Ms Pistilli appeared on behalf of the Respondent.
Hearing (Conference) details:
2017.
Adelaide:
January 11.
1 [2011] FWAFB 975
2 Cheval Properties Pty Ltd t/as Penrith Hotel v Smithers (2010) 197 IR 403.
3 PR589305
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