Rachel Bennett v AR and He Bennett

[2015] FWC 1675

[2015] FWC 1675

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Rachel Bennett
v
AR and HE Bennett
(U2015/2598)

DEPUTY PRESIDENT SAMS SYDNEY, 16 MARCH 2015

Application for relief from unfair dismissal - application made ‘out of time’ - dissolution of marriage - family operated business - awareness of legal rights - further jurisdictional objection concerning minimum employment period - no ‘exceptional circumstances’ - application dismissed.

[1] This decision arises from an application for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394(3) of the Fair Work Act 2009 (the ‘Act’). Ms Rachel Bennett (the ‘applicant’) was allegedly dismissed from her employment with AR and HE Bennett (the ‘respondent’) on 29 December 2014. It remained a contested issue between the parties as to whether the applicant was dismissed at the initiative of the employer or whether she resigned of her own accord. The applicant lodged an application for an unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 27 January 2014. The Act mandates a 21 day time limit for initiating an application for a remedy for unfair dismissal. Her application was therefore lodged eight days outside the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for an Unfair Dismissal Remedy and the Form F3 Employer’s Response. The Commission has also considered the submissions filed by both parties in relation to the granting of an extension of time. On 6 February 2015, the Commission wrote to the applicant outlining the matters I am obliged to consider under s 394(3) of the Act, and asking her to provide a statement addressing those matters within 14 days. In response, the applicant provided a three page statement dated 17 February 2015. Having considered this material, I issued an order refusing an extension of time and dismissed the application on 27 February 2015. What follows are my reasons for doing so.

RELEVANT STATUTORY PROVISIONS AND PRINCIPLES
[3] The relevant legislative framework, governing the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘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.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, the Full Bench of the Commission 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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].’

[5] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing an unfair dismissal application. Put another way, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application out of time; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia[2014] FWCFB 2288 succinctly described the Commission’s decision making process under 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I now turn to each of the criteria under s 394(3) of the Act.

CONSIDERATION

Reason for the delay (s 394(3)(a))

[6] The applicant was employed by her mother-in-law, Hope Bennett and her father-in-law, Alan Bennett at a family operated funeral home in Yamba, New South Wales. She commenced employment in 2011. The applicant contended that the reason for the delay in filing her unfair dismissal application was due to the personal circumstances surrounding the family business in which she worked. She primarily attributed the delay in lodging her application to her attempt to preserve relations with her then husband, who also worked at the funeral home. Her husband is Mr and Mrs Bennett’s son. In this respect the applicant stated:

‘Because of my family connection with Hope, it made the task of standing up for what I know is right more difficult than the usual employee/employer dispute. I felt hurt and confused, given the fact that my husband had not followed me out the door or even attempted to intervene, despite the unfairness of the situation....Up until this point, I had decided that my marriage was more important than any dispute I may have with my mother in law. I had not lodged an application for unfair dismissal, even though I knew I was well within my rights to do so, as I was worried this would put my marriage into further jeopardy.’

[7] The applicant acknowledged that on 16 January 2015 she received a letter from Glaser Lawyers stating that they were acting on behalf of her husband. She went on to state that:

‘Upon receiving the letter from the lawyer, however, it became painfully evident that any chance I had of saving my marriage was gone. Unfortunately this realisation came outside of the time limit for my application.’

[8] Whilst I am sympathetic to the applicant’s circumstances surrounding the breakdown of her marriage, I am not persuaded that this reason for the delay in filing her unfair dismissal application, is an ‘exceptional circumstance’, as contemplated by the Act. Despite the applicant having formed the view that her marriage was irretrievable on 16 January 2014, she did not lodge her application for another 11 days. Had the applicant lodged her unfair dismissal application on 16 January, or in the following three days, the application would have been within the statutory time limit for lodgement. There is nothing in the applicant’s submissions to indicate she was incapable of filing the claim within this period, or indeed for the whole of the 21 day time period.

[9] Furthermore, I am not convinced that the applicant’s circumstances of having been employed within a family business, of which she was part of the family, are particularly unique or warrant special consideration. There are many persons who are employed by relatives and who experience the challenges associated with an entwined employment/family relationship. Moreover, whilst the circumstances of the applicant’s employment are unfortunate and may seem to be unusual, it is not the employment arrangements which must be ‘exceptional’, but the reasons for the delay in filing the application. Her own submissions demonstrate she was aware of her legal rights in seeking a remedy from unfair dismissal. It seems to me that she consciously chose not to exercise those rights.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[10] The applicant believed she was dismissed on 29 December 2014 and was effective from that date. Notwithstanding that the respondent maintains the applicant had resigned from her employment, this is a neutral factor in this case.

Any action taken by the person to dispute the dismissal (s 394(3)(c))

[11] The applicant did not identify any other action taken by her to dispute her dismissal, other than the filing of the unfair dismissal application on 29 December 2014. An assessment of this criterion weighs against the grant of an extension of time.

Prejudice to the employer (s 394(3)(d))

[12] Given that the application was lodged eight days outside of the statutory time limit, I do not consider there is any significant prejudice to the employer, save for the usual prejudice of costs and time expended in defending the claim. This factor is a neutral one in this case.

The merits of the application (s 394(3)(e))

[13] It is important for applicants to understand that a consideration of the merits of an application, at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis. In Kornicki v Telstra Network Technology Group P3168, a Full Bench of the Australian Industrial Relations Commission said:

‘The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.’

[14] The applicant submitted that she was dismissed because she had expressed an intention to undertake studies into child care. She explained the circumstances as follows:

‘On the morning of the 29th of December, Lincoln and I were getting ready for the work day when Hope arrived and asked to see me in the office. Hope informed me that Lincoln had told her of my intentions to undertake studies. I told her I had inquired about a Child Care Course. She then expressed her concerns that if I did undertake studies, I would no longer have time to fulfil my duties as a Funeral Director. I assured her that was not the case, but despite this, Hope took it upon herself to terminate my employment, “effectively immediately”.’

[15] In response to these claims, the respondent asserted that the applicant was not dismissed, but rather ‘resigned from her employment on 29 December 2014’. Obviously, this conflicting material demonstrates that there is a factual dispute as to the circumstances surrounding the applicant’s termination of employment including, of course, what role the breakdown in her marriage played in the termination of her employment. The merit of the applicant’s case can only be established in the event of properly tested evidence. If the applicant’s version of events is correct, her case cannot be said to be without some merit. I consider this factor as a positive one in favour of granting the applicant an extension of time for filing her unfair dismissal application.

[16] I wish to make one final observation in relation to the merits of the applicant’s unfair dismissal application. In addition to the out of time objection, the respondent raised a further jurisdictional objection, claiming that the applicant did not meet the minimum employment period. The respondent said that the applicant had only been employed since 1 October 2014. Contrastingly, the applicant asserted that she had been employed since 6 June 2011, although she accepted that Mrs Hope Bennett had only purchased the business early in 2014. Further evidence would be necessary to establish when the applicant began her employment with the respondent and in what circumstances. However, at this preliminary stage, I consider that this jurisdictional issue may be a further hurdle the applicant would need to overcome for her application to be accepted as within the Commission’s jurisdiction.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))
[17] The applicant did not specifically address this criterion. It would be difficult to imagine any other persons being in a similar position to that of the applicant. Nevertheless, this is an irrelevant factor in this case.

CONCLUSION

[18] Having considered all of the matters the Commission is required to take into account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant the Commission granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. In my opinion, the circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. These circumstances are not outweighed by any prima facie merit in the applicant’s case. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 27 February 2015.

DEPUTY PRESIDENT

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