Ms Young Kim v Sushi World T/A Statewide Management Consulting Pty Ltd

[2014] FWC 1931

[2014] FWC 1931

FAIR WORK COMMISSION

DECISION

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

Ms Young Kim
v
Sushi World T/A Statewide Management Consulting Pty Ltd
(U2013/15863)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 24 MARCH 2014

Application for relief from unfair dismissal.

[1] Ms Kim sought an extension of time for lodgement of her application pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged 20 days outside the statutory time limit.

[2] I heard this application on 7 February 2014, on which occasion the respondent appeared, and 14 March 2014, on which occasion the applicant appeared, represented by a paralegal from Benjamin and Khoury, solicitors.

[3] The applicant’s explanation for her delay in lodgement was that:

● She had had no help from her employer.
● Her research had taken time. She had been asking friends what to do and had eventually discovered the Fair Work Commission.
● She was suffering from significant ill-health, including fatigue and various skin conditions.
● She had struggled with poor bureaucratic management, having been directed to the wrong institution, wrong registry and wrong telephone numbers.
● She had been living in Australia for three years and her English was poor.
● She was on her own, with no one to assist her.

[4] The latter two submissions were contrary to her situation in her appearance before me. The applicant appeared at the hearing with her husband who interpreted for her and appeared to be supportive. I confirmed that Ms Kim understood the proceedings as interpreted by her husband and both she and her legal representative indicated that they were satisfied.

[5] The relevant legislative framework for the exercise of the discretion of the Fair Work Commission (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.”

[6] 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

[7] 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)

[8] I have adopted this approach.

[9] Having considered the criteria set out in section 394 (3) (a) to (f) I am not satisfied that there is any reason provided by the submissions of Ms Kim to allow an exception to the 21 day time limit for lodgement of applications pursuant to section 394(3).

[10] The circumstances described by Ms Kim are regularly, routinely and normally encountered in such circumstances.

[11] The submission that Ms Kim had poor language skills seems to concern circumstances ameliorated by the presence of her husband and there was no evidence of any medical condition except her own assertion.

[12] Although the merits are strongly contested by the employer, I am not able to determine that this application is without merit and that therefore was a neutral matter in my consideration of the application.

[13] The application for an extension of time for the lodgement of this 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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