Nash v Discovery Holiday Parks Barossa - Tanunda

[2015] FWC 380

[2015] FWC 380

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joanne Nash
v
Discovery Holiday Parks Barossa - Tanunda
(U2014/16655)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 15 JANUARY 2015

Application for relief from unfair dismissal - extension of time granted.

[1] Mrs Nash has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with Discovery Holiday Parks Barossa Tanunda (the Respondent). At a telephone conference convened on 14 January 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section but that I was the satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion.

[2] Mrs Nash’s application was lodged on 23 December 2014. In that application Mrs Nash advised her employment was terminated on 5 November 2014. Mrs Nash asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept her application out of time:

“The reason for the delay is because the first application I made to FWA commission was infact the wrong application and was only advised of this on December 18th by the commissioner who conducted a phone meeting. To the best of my knowledge, I thought I had filled in the right forms.” (sic) 1

[3] On 5 January 2015 my Associate corresponded with both Mrs Nash and the Respondent and advised that the extension of time issue would be considered through a telephone conference on 14 January 2015. Substantial information about the extension of time issue was provided to the parties. Mrs Nash was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 7 January 2015.

[4] Limited further information was received from Mrs Nash on 6, 12 and 13 January 2014. That information referred to the earlier application as a general protections application. As a consequence, I have considered the Fair Work Commission records and am satisfied that Ms Nash lodged a General Protections application pursuant to s.365 of the FW Act on 9 November 2014. That application was the subject of a conference before Commissioner Hampton on 18 December 2014 and the Commission records indicate that it was discontinued at that conference and that Mrs Nash foreshadowed that she intended to lodge an unfair dismissal application.

[5] The Employer’s Response to the application confirms that the Respondent is opposed to an extension of time but that there are no other issues of an initial or jurisdictional nature.

[6] Mrs Nash participated in the telephone conference. Ms Merchant from the Respondent also participated in this conference. My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[7] 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.”

[8] On the information before me I am satisfied that the application was made some 26 days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 2 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.”

[9] Mrs Nash’s reason for the delay was that she erroneously lodged an application pursuant to the general protections provisions of the FW Act. I am satisfied that this was the case and that, consequent upon being provided with advice about that application in the conference before Commissioner Hampton on 18 December 2014, she proceeded to lodge this application within three further working days. I have noted that the parties differ over the extent to which the Respondent did, or did not, acquiesce to an extension of time for the lodgement of the unfair dismissal application. I have not drawn any conclusion with respect to this difference.

[10] I am satisfied that this reason for the delay, should be regarded as an exceptional circumstance in these particular circumstances. In reaching this conclusion I have noted that the note following s.368(1) of the FW Act states:

“Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.”

[11] Given the material before meI consider it very likely that Commissioner Hampton suggested that an unfair dismissal application represented the more appropriate application in Mrs Nash’s circumstances.

[12] It is clear from Mrs Nash’s application that she was aware of the termination of her employment on the day on which this termination took effect. It is clear from that, Mrs Nash’s general protections application was a challenge to the termination of her employment and represented other action taken. I am not satisfied that an extension of time of this magnitude would prejudice the Respondent but this, of itself, does not provide a basis for an extension of time.

[13] In terms of the merits of the application, the information before me does not allow any definitive conclusion in this respect and I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

[14] Considerations of fairness relative to other persons in similar positions support an extension of time.

[15] Accordingly I have concluded that the material before me establishes that Mrs Nash’s circumstances should be regarded as exceptional so as to warrant an extension of time. The time for lodgement of the application, pursuant to s.394(2) will be extended accordingly. The application will be referred for conciliation on this basis. An Order (PR560105) giving effect to this decision will be issued.

Appearances (by telephone):

J Nash on her own behalf

S Merchant and T Hillier for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

January 14.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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<Price code C, PR560104>