Ms Shannon Donnelly v Bella Hair & Beauty Pty Ltd

[2014] FWC 1984

[2014] FWC 1984

FAIR WORK COMMISSION

DECISION

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

Ms Shannon Donnelly
v
Bella Hair & Beauty Pty Ltd
(U2014/3585)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 25 MARCH 2014

Application for relief from unfair dismissal.

[1] Ms Donnelly sought an extension of time for lodgement of her application made pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] Ms Donnelly’s employment was terminated on 14 November 2013. Her application was lodged on 6 January 2014. The application was therefore lodged 33 days outside the time limit prescribed by the Act for lodgement of an application.

[3] I heard this application in Sydney on 21 March 2014. Both parties were unrepresented.

[4] Ms Donnelly submitted that she had been unaware that her employment had been terminated. She gave evidence that she did not receive correspondence relating to the termination of her employment until December 2013. She was on sick leave as a result of stress arising from the circumstances surrounding the termination of her employment. She had supplied medical evidence supporting that incapacity.

[5] The respondent submitted that it had terminated the employment of Ms Donnelly by letter on 14 November 2013 and then confirmed that termination of employment by a further letter dated 29 November 2013. The evidence of the respondent's director was that both letters were posted by her and had a return address on the back of the envelope. Her evidence was that the envelope, postdated 9 December 2013 which Ms Donnelly submitted contained the letter she had eventually received from the respondent, was not an envelope in which she forwarded any mail. She denied that it had ever been used to post correspondence to Ms Donnelly.

[6] It is highly improbable that two relevant pieces of correspondence from the respondent to Ms Donnelly concerning the termination of her employment and entitlements should go astray. I prefer the respondent's evidence in relation to the service of the notice of termination.

[7] The relevant legislative framework for the exercise of the Fair Work Commission (the FWC) in relation to applications of this kind is set out below.

“S394 Application for unfair dismissal remedy

(3) FWC may allow a further period for the application to be made by a person under subsection (1) if 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.”

[8] I have considered the discussion of exceptional circumstances by Justices Allsop and Branson in Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd. 1Justice Allsop, following a discussion of previous authority, concluded that if rights are to be set aside or circumstances altered, as in this case by an extension of time, then the exceptional circumstances relied on must be “...circumstances sufficient to justify that outcome.”2

[9] Justice Branson said “To put the matter another way, ‘exceptional circumstances’ are simply circumstances sufficient to render it just and equitable to grant relief notwithstanding that the grant of relief will defeat rights of unsecured creditors.” 3 In Maan v Minister for Immigration and Citizenship4 Branson J again discussed “exceptional circumstances”, in that case in relation to non-compliance with a visa condition. She said:

“Although the expression ‘exceptional circumstances’ is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

“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. (cf Baker v The Queen (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[25])” 5

(my emphasis)

[10] I have adopted this approach.

[11] In considering the criteria set out in section 394 (3) I have had regard to the following:

● I do not accept Ms Donnelly’s explanation for her delay in lodgement of this application.

● I am satisfied that Ms Donnelly became aware of the termination of her employment within two days of 14 November 2013.

● I am satisfied that Ms Donnelly took action to dispute the termination of her employment through representations by her family.

● There is no prejudice to the employer caused by Ms Donnelly’s delay.

● I am not in a position, without hearing any evidence, to make any finding regarding the merits of Ms Donnelly's application.

● There is no issue of fairness as between Ms Donnelly and any other person in a similar position.

● There is no evidence that Ms Donnelly was incapacitated by the stress she suffered as a result of the termination of her employment to the extent that she was incapable of making enquiries and lodging an application pursuant to section 394 of the Act.

[12] I am not satisfied that there are any exceptional circumstances justifying an extension to the statutory period for lodgement of applications of this kind.

[13] The application is dismissed.

SENIOR DEPUTY PRESIDENT

 1 [2003] FCAFC 256.

 2   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [192]

 3   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [28]

 4 [2009] FCAFC 150

 5   Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 para [51]

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