Ms Sirpa Kauhanen v Tumladden Medium Term Youth Accommodation Service trading as Tumladden Youth Accommodation

[2010] FWA 8181

[2010] FWA 8181

FAIR WORK AUSTRALIA

DECISION

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

Ms Sirpa Kauhanen
v
Tumladden Medium Term Youth Accommodation Service trading as
Tumladden Youth Accommodation
(U2010/9590)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 3 NOVEMBER 2010

Termination of Employment.

[1] Ms Kauhanen sought an extension of time for lodgement of her application which was lodged pursuant to section 394 of the Fair Work Act 2009 (the Act). I heard this application on 20 September 2010 in Canberra. Ms Kauhanen appeared on her own behalf with the support of a friend. The employer was represented by two Directors.

[2] Ms Kauhanen’s application was lodged 56 days late.

[3] The relevant legislative framework for the exercise of FWA’s discretion in relation to applications of this kind is set out below.

“S394 Application for unfair dismissal remedy

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

[4] 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

[5] 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:

“[51] 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)

[6] This approach was adopted by Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd T/A Joy Mining Machinery. 6I have also adopted that approach.

[7] I have considered Ms Kauhanen’s application in light of the criteria set out for consideration in s394(3). Ms Kauhanen submitted the following:

• She did not know that Fair Work Australia existed or that a remedy before Fair Work Australia was available to her.



• She did not have an “industrial agent” or solicitor to advise her to take action before Fair Work Australia.



• Upon joining the relevant union on 15 March 2010 she was given no indication that she could make a claim before Fair Work Australia.



• After termination of her employment she had attempted to lodge a complaint with the Human Rights Commission.



• Between April 2010 and June 2010 she was addressing her situation with the Human Rights Commission on behalf of herself and the residents of the employer.



• She was first advised by the Human Rights Commission that she could lodge a claim for unfair dismissal under the Fair Work Act 2009 on 10 June 2010. She lodged the application on this same day. At this stage she was still unaware that there was a time limit of 14 days.



• She had thought that she would be able to resolve the issues herself. She believed that her actions to dispute the dismissal were covered with an exit interview.



• There was a delay in scheduling her exit interview with the Management Committee. The Committee has still not provided Ms Kauhanen with a response from this exit interview. She is still awaiting the outcome. This was a contributing factor.



• She has been suffering from extreme stress. During and after her dismissal she has visited a psychologist. She has lodged with Fair Work Australia reports from her General Practitioner and from Centacare. She has sought reports from the psychologist.

[8] I have considered and taken into account the criteria set out in s394.

[9] Ms Kauhanen’s circumstances were and are difficult. I am certain that her perception of her position, both socially and emotionally, is accurate. If her delay had been shorter, I may well have been persuaded that her circumstances were exceptional in that they were not “... regularly, or routinely, or normally encountered”. 7 However, I believe that Ms Kauhanen’s circumstances became unexceptional as time progressed. By the time Ms Kauhanen lodged her application her circumstances had for some time been those which are regularly, routinely and normally encountered by persons in circumstances such as hers.

[10] The application for an extension of time for lodgement of this application is refused.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms S Kauhanen, on her own behalf.

Ms L Kelly and Ms C Furner, on their own behalf.

Hearing details:

2010
Canberra.
September, 20

 1 [2003] FCAFC 256.

 2   Ibid para 192

 3   Ibid para 28

 4 [2009] FCAFC 150.

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

 6   [2010] FWA 1394 [PR994029] - 25 February 2010.

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

Printed by authority of the Commonwealth Government Printer

<Price code A, PR503003>