Nadine Gregory v Halls Creek Post Office Pty Ltd T/A Halls Creek LPO

[2015] FWC 2827

[2015] FWC 2827

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nadine Gregory
v
Halls Creek Post Office Pty Ltd T/A Halls Creek LPO
(U2015/2747)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 APRIL 2015

Application for relief from unfair dismissal.

[1] Ms Nadine Gregory alleged that the termination of her employment by Halls Creek Post Office Pty Ltd (Post Office) on 17 December 2014 was unfair.

[2] Ms Gregory’s unfair dismissal application lodged on 3 February 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

"[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." [Endnotes not reproduced]

(a) the reason for the delay;

[5] Ms Gregory had until 7 January 2015 to lodge her application. Her reasons for the delay were that she lived in Halls Creek, WA, which is a remote town with limited services. She was unaware of her unfair dismissal rights. She had no access to legal advice and she did not have internet access. She also stated that weather and road conditions denied her reaching advice and she was not aware of the 21 day time limit until she spoke with a lawyer. Further, Ms Gregory said that due to Christmas/New Holidays, access to lawyers in Broome (600Km away) and Kununurra (350Km away) was impossible.

[6] At the telephone conference, Ms Gregory said that after she was dismissed she went on holidays to Port Hedland. She was away until February 2015. Ms Gregory accepted that this was one of the reasons for the delay in lodging her application.

[7] It was submitted that indigenous Australian’s are unaware of their rights. There was no evidence given to support this generalization. I do not doubt that some indigenous Australians are unaware of their rights and I accept that Ms Gregory was unaware of her unfair dismissal rights. However in my experience it is not unusual for dismissed employees to be unaware of their dismissal rights or of the 21 day time limit.

[8] There was no evidence before the Commission that Ms Gregory took any steps prior to returning from her holidays to make enquires about any possible action she could take.

[9] Ms Stacey Booth, the owner of the Post Office, said that there are services in Halls Creek and submitted that the Aboriginal Legal Service services Halls Creek.

[10] It is difficult to see how weather and road conditions prevented Ms Gregory from receiving legal advice in Halls Creek as she was not in Halls Creek for most of the time. She was in Port Hedland on holidays. Further, while I accept that access to legal services over the Christmas/New Year break may be difficult, that does not explain why Ms Gregory was not able to access legal advice until she returned to Halls Creek. There are community legal services in Port Hedland and she could have contacted any of the available legal services after the Christmas/New Year break.

[11] Ms Gregory has not provided a reasonable explanation for the whole of the delay.

[12] Ms Gregory’s explanation for the delay does not weigh in favour of granting an extension of time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[13] Ms Gregory was aware of when her employment ended and she had the full 21 days to lodge her application. This weighs against granting an extension of time.

(c) any action taken by the person to dispute the dismissal;

[14] There is a dispute about whether Ms Gregory was dismissed, but if she was dismissed, she took no steps to dispute her dismissal at the time. This weighs against extending time.

(d) prejudice to the employer (including prejudice caused by the delay);

[15] There was no evidence of any prejudice that the Post Office would suffer if an extension of time were granted. This weighs in favour of granting an extension of time.

(e) the merits of the application;

[16] There is a dispute between the parties about whether Ms Gregory resigned her employment or whether she was dismissed.

[17] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested.

[18] This criterion is neutral.

(f) fairness as between the person and other persons in a similar position.

[19] No submissions were made on this criterion.

Conclusion

[20] I do not consider that there are any exceptional circumstances. This is not a case where the merits of the case outweigh the lack of a reasonable explanation for the whole of the delay. An extension of time will not be granted and consequently Ms Gregory’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms N Gregory on her own behalf.

Ms S Booth on behalf of the Respondent.

Hearing details:

2015.

By telephone:

23 April.

 1   [2011] FWAFB 975.

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