Patricia Conry v News Corp Australia

[2015] FWC 3427

[2015] FWC 3427

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Patricia Conry
v
News Corp Australia
(U2015/4769)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 21 MAY 2015

Application for relief from unfair dismissal - extension of time not granted.

[1] Ms Conry 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 Advertiser Newspapers Pty Limited (the Advertiser). At a telephone conference convened on 20 May 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion

[2] Ms Conry’s application was lodged on 13 April 2015. In that application Ms Conry advised her employment was terminated with effect from 16 March 2015. In her application, Ms Conry confirmed that the application was lodged outside of the 21 day time limit and asked that the following information be taken into account:

“I am late in putting my application through as the following reasons,

1) I suffer with anxiety and depression and have been struggling with what has happened with work and trying to submit my resumes to find work, when I can to try and bring some money into the house to pay rent, etc as I am not receiving any income from Centrelink apart from my $31.50 per fortnight which is my parenting payment.
2) My son has been sick since his surgery on 12th March 2015, and I have had to put all of my extra time into looking after him. Since his surgery he has been back to the hospital with not eating, drinking or taking pain relief. He also has experienced some post surgery bleeding which needed attention this made a 3rd trip back to the Women’s and Children’s Hospital. Lachlan was not allowed to resume back to day care for 2 weeks after his surgery and was given the all clear from the doctor.
3) Now Lachlan has been given the all clear and has returned back to day care, I can sit down and concentrate on my application in full, as my son is only 3 years of age as had been very demanding.
4) I was also waiting for a draft application to come back to me from the Women’s Working Centre, as they were helping me with advice, as I have never been in this situation before and it was stressing me out a bit.

I am sorry for not getting this application in on time, but I do hope you will be able to consider my late application.

....” 1 (sic)

[3] On 20 April 2015 my Associate corresponded with both Ms Conry and the Advertiser and advised that the extension of time issue would be considered through a telephone conference on 20 May 2015. Substantial information about the extension of time issue was provided to the parties. Ms Conry was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 13 May 2015.

[4] Substantial additional information was received from Ms Conry. This information confirmed that her young son was in hospital at various times from 12 March 2015 to 15 March 2015. She advised that she had to return her son to the hospital on three later occasions. After the termination of her employment Ms Conry remained at home with her son until 30 March 2015. She advised that she was unable to direct attention to lodging this application over that time. She also advised that on 23 March 2015 she visited the Working Women’s Centre for advice and then received a draft application from that Centre on 25 March 2015. She advised that over the time since the termination of her employment she had been very stressed and her anxiety prompted her to return to taking medication for depression.

[5] The Employer’s Response to the application indicated that the Advertiser opposed the extension of time. The Advertiser also provided additional material going to the merits of the application and, particularly, the extent to which Ms Conry took an authorised leave contrary to established instructions.

[6] Ms Conry participated in the telephone conference. Mr Makins, Senior Manager-Employee Relations from the Advertiser 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 10 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] Ms Conry’s reasons for the delay detail her busy time around mid March 2015 whilst caring for her son, but do not explain why it was that she could not have lodged the application within the specified time limit. As of 25 March 2015 Ms Conry had been provided with a draft application. She had taken the time to visit the Working Women’s Centre to obtain that and to obtain advice. She confirmed that she was aware of the time limit. Notwithstanding this, the application was not lodged for a further 18 days. To the extent that Ms Conry argues that she was medically unable to lodge the application within time, I am not satisfied that evidence to support her position in this respect has been provided. None of the reasons for the late lodgement appear to me to meet the requirements for an exceptional circumstance. It is clear from Ms Conry’s application that she was aware of the termination of her employment on the day it took effect. I am not satisfied that, apart from the late lodgement of this application, Ms Conry pursued other actions so as to challenge the termination of her employment. It is clear that she sought advice from the Working Women’s Centre but I do not consider that she has established that the actions of the Working Women’s Centre contributed to the delay in this respect. I do not consider 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.

[10] In terms of the merits of the application, the information before me does not enable a definite conclusion. However, if the Advertiser can establish that Ms Conry took leave contrary to its instructions and then proceeded to undertake work for a different employer on that day, I think it likely that the Advertiser will be able to establish that there was a valid reason for the termination of her employment. Accordingly, whilst I have regarded the merits of the application as a neutral factor relative to the extension of time, I do not consider that those merits favour an extension of time.

[11] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[12] Accordingly I have concluded that the material before me does not establish that Ms Conry’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR567559) giving effect to this decision will be issued.

Appearances (by telephone):

P Conry on her own behalf.

D Makin for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

May 20.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR567558>

 1   Form F2, para 1.4

 2   [2011] FWAFB 975