Rachael Crowden v Southern Edge Training Pty Ltd T/A Set Solutions
[2015] FWC 3813
•5 JUNE 2015
| [2015] FWC 3813 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rachael Crowden
v
Southern Edge Training Pty Ltd T/A Set Solutions
(U2015/4074)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 5 JUNE 2015 |
Application for relief from unfair dismissal.
[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).
[2] The relationship between Ms Crowden and the respondent ended on 13 February 2015. Ms Crowden lodged her application at the Fair Work Commission on 18 March 2015. Ms Crowden’s application was lodged 11 days outside the statutory time limit.
[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Ms Crowden. I wrote to her on 23 March 2015 outlining the matters I was required to consider by the Act and asked her to provide a statement addressing these matters within 14 days. Ms Crowden provided a statement in response. Her statement is extracted below:
“THE REASON FOR THE DELAY IS;
I believe there is exceptional circumstances as a series of events lead to a non-genuine redundancy outside of the 21 day period.
I received my letter of consultation of termination of employment by reasons of redundancy on the 2nd February 2015 with my cease date being 13th February 2015.
On the 16th March 2015 I believe the dismissal is unfair because 31 days later, after my cease date, SETSolutions has employed someone else to do the exact same job I was employed to do and is still operating the same, as in, same course, course structure, same locations and under the same government funding arrangements.
The fact SETSolutions made me redundant; on the basis they are closing down the Queensland branch as per my redundancy letter, yet they are continuing to operate.
If SETSolutions was going to continue with Certificate III in Business classes after making me redundant, I would have lodged an application within in the 21 day period with the Fair Work Commission.
WHETHER THE PERSON FIRST BECAME AWARE OF THE DISMISSAL AFTER IT HAD TAKEN EFFECT;
I first received knowledge that SETSolutions did not close down and resumed their Certificate III in Business courses on the 16th March 2015 and employed other trainers for this position.
On the 16th and 17th March 2015 I made enquires with Solicitors and Fair Work to get more information and paperwork regarding my unfair dismissal.
On the 18th March 2015 I lodged my application to Fair Work.
THE MERITS OF THE APPLICATION;
The dismissal is a non-genuine redundancy because;
1. SETSolutions has hired someone else to do the job I was employed to do.
2. SETSolutions has not closed down as stated in my Redundancy letter.
3. SETSolutions is continuing to operate with the same structure.”
[4] I wrote to the respondent on 5 May 2015. My correspondence was forwarded by registered mail and by electronic mail. It is extracted below:
“Dear Mr Wall,
As the respondent you have not lodged an Employer Response or any opposition to the applicant’s extension of time application. Unless I receive a response I intend to issue an order extending the time for lodgement of this application on 12 May 2015 without further notice to you.
Yours faithfully,”
[5] The respondent immediately provided an Employer Response. It did not raise late lodgement as an objection but did object to the application on the basis that the dismissal was a case of genuine redundancy.
[6] I issued an Order allowing Ms Crowden's application for an extension of time on 18 May 2015.
[7] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:
394 Application for unfair dismissal remedy
...
(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] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 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]
[9] For exceptional circumstances to arise as contemplated by s394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.
[10] I considered the various criteria to which my attention is directed by s.394 (3) of the Act.
reason for the delay-s.394(3)(a)
[11] The reason Ms Crowdwn provided for her delay in lodgement was alleged deceptive conduct by the respondent. Ms Crowden alleges that she became aware that her own position was filled by other persons on 16 March 2015. She lodged her application as soon as possible on 18 March 2015 after she had obtained advice.
whether the person first became aware of the dismissal after it had taken effect-s.394(3)(b)
[12] Ms Crowden became aware of the end of her relationship with the respondent on 2 February 2015.
any action taken by the person to dispute the dismissal-s.394(3)(c)
[13] Ms Crowden disputed her dismissal by lodging this application.
prejudice to the employer-s.394(3)(d)
[14] I was satisfied that there would be no greater prejudice to the respondent caused by Ms Crowden's application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.
the merits of the application-s.394(3)(e)
[15] Merit was a neutral issue in my consideration of this application.
fairness as between Ms Crowden and other persons in a similar position-S.394(3)(f)
[16] There was no issue of fairness in relation to any other person in a similar position.
[17] Having considered all of the matters to which my attention is directed by the Act I was satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis I allowed the application. I was satisfied that Ms Crowden's circumstances were out of the ordinary course, unusual, special or uncommon.
SENIOR DEPUTY PRESIDENT
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