Ms Samara Martin v The Salvation Army T/A the Salvation Army

[2017] FWC 155

[2017] FWC 155

FAIR WORK COMMISSION

DECISION

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

Ms Samara Martin
v
The Salvation Army T/A The Salvation Army
(U2016/11470)

COMMISSIONER PLATT ADELAIDE, 9 JANUARY 2017

Application for relief from unfair dismissal – application for extension of time – application dismissed.

[1] Ms Samara Martin lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with The Salvation Army on 17 September 2016.

[2] That application advised that Ms Martin’s dismissal took effect on 27 July 2016 and provided the following reason for the late lodgement:

“1.4.1 I did not receive the letter until the 30 August 2016”

[3] On 18 November 2016, my Associate corresponded with Ms Martin and The Salvation Army and advised that the extension of time issue would be considered at a telephone conference on 7 December 2016. Information about the extension of time issue and the factors that I am required to take into account were provided to the parties. Ms Martin was directed to provide a statement concerning the extension of time and any documents to be relied upon by 1 December 2016. The Salvation Army was invited to file any material in reply by 6 December 2016.

[4] The Employer’s Response to the application indicated that The Salvation Army opposed the extension of time.

[5] Ms Martin provided a written submission and a number of attachments including:

● “Understanding Stress and Bulling in New Zealand Workplaces – Final Report to OH&S Steering Committee;”
● a letter dated 24 May 2016 written by Dr T O’Flynn;
● a letter dated 30 November 2016 written by Dr C Valdez;
● a one page document addressed to Ms Smallacombe dated 2 August 2016; and
● a six page document written to Mr Smallacombe also dated 2 August 2016.

[6] The written submissions filed on behalf of Ms Martin are summarised as follows:

● prior to the dismissal, Ms Martin was absent from work due to anxiety and distress caused by allegations that she was a drug user;
● Ms Martin believed she was suffering from a major depressive illness and anxiety disorder due to bullying and harassment at work;
● Ms Martin was dismissed by The Salvation Army on 27 July 2016;
● Ms Martin first became aware of her dismissal on 2 August 2016 when she received an email copy of correspondence posted to her;
● on 2 August 2016, Ms Martin sent by email, two documents totalling six pages to Major Smallacombe of the Salvation Army concerning her dismissal;
● on 17 September 2016, Ms Martin lodged her unfair dismissal application; and

[7] The written submissions filed on behalf of The Salvation Army and statutory declaration of Mr Scott Smallacombe (Division Social Programme Secretary, WA Division) are summarised as follows:

● Ms Martin was absent from work since 10 March 2016 and out of contact since July 2016;
● Ms Martin reported that she experienced bullying and harassment but was unable to sufficiently particularise the claim to allow an investigation to be conducted;
● Ms Martin sought a transfer to Sydney but that was not possible;
● as a result of her absence and lack of contact The Salvation Army believed Ms Martin had abandoned her employment and dismissed her on 17 September 2016;
● Ms Martin took no action to contest her dismissal until 17 September 2016;
● there is no merit in the application;
● the Salvation Army would suffer prejudice as it had taken all reasonable steps to deal with her work issues; and
● there is no acceptable reason for the delay and the application should be dismissed.

[8] A hearing was conducted by way of teleconference on 7 December 2016. A sound file record of the telephone conference was kept.

[9] 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.”

[10] Ms Martin’s unfair dismissal application was made 31 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[11] 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.”

[12] Prior to Ms Martin’s dismissal she was having difficulties at work and in her personal life, and had been absent from work since 4 April 2016. The Salvation Army submitted that Ms Martin last worked in March 2016 and it had not been able to contact Ms Martin since early July 2016. The Salvation Army believed Ms Martin had abandoned her employment.

[13] Ms Martin contends she was subject to bullying and intimidation which caused her significant stress and resulted in the re-emergence of a pre-existing depressive illness and anxiety disorder. The Salvation Army contends that Ms Martin was unable to particularise the bullying and intimidation complaint to enable an investigation, and it was unable to accommodate the transfer Ms Martin was seeking.

[14] On 17 September 2016, the Salvation Army dismissed Ms Martin in writing and sent a copy of the advice by post and email. Ms Martin contends that she experienced homelessness during this period and first became aware of her dismissal on 2 August 2016, when she stayed with a friend who provided internet access. I accept that position.

[15] Ms Martin contends she was not in a fit state to respond to the dismissal at the time due to her medical state. The letter from Dr O’Flynn states that as of 24 May 2016, Ms Martin had “depressed mood and high levels of anxiety, which appear to be exacerbated by her perception of being bullied at the workplace,” and should stay off work until the workplace bullying issues have been resolved. Ms Martin was taking medication that in Dr O’Flynn’s opinion did not appear to make her drowsy or impair her judgement.

[16] Ms Martin also submitted a letter from Dr Valdez dated 30 November 2016. Dr Valdez indicated Ms Martin had suffered from episodes of severe stress. I have no information as to what period of time this refers to. At the telephone conference, Ms Martin stated that after her dismissal she was “burnt out” and had “no fight.”

[17] Unfortunately, there is no definitive medical evidence before me of the impact of any medical condition on Ms Martin’s capacity to lodge an unfair dismissal application in August 2016.

[18] After receiving the email advice of her dismissal Ms Martin sent two lengthy pieces of correspondence to Mr Smallacombe detailing the events that had occurred and how she felt. The correspondence totals 6 typed pages. I unable to reconcile Ms Martin’s contention that she was unable to lodge a dismissal claim due to her medical condition with her ability to draft a lengthy correspond to Mr Smallacombe. Ms Martin resided at a location with internet access for about 4 days after the 2 August 2016, and could have lodged her claim in that period.

[19] I also contrast Ms Martin’s position with her statement at the hearing, that she did not contemplate making an unfair dismissal claim until September 2016.

[20] It appears the first occasion that Ms Martin took any steps to contest the dismissal was on 17 September 2016 when the application was lodged, some 46 days after she became aware of her dismissal.

[21] The applicant needs to provide a credible explanation for the entire period of the delay. 2

[22] I accept that Ms Martin first became aware of the dismissal on 2 August 2016.

[23] However, there is no satisfactory explanation for the further delay until the application was lodged on 17 September 2016.

[24] I am not satisfied that the granting of an extension of time results in prejudice to The Salvation Army.

[25] In terms of the merits of the application, I am unable to resolving the competing assertions of the events that led to the dismissal and consequently, I have regarded the merits of the matter as a neutral factor with respect to the extension of time issue.

Conclusion

[26] For the reasons I have set out above, I am not satisfied that Ms Martin’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

1 [2011] FWAFB 975.

 2   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403.

 3   PR589214.

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