Rebecca Martin (Searle) v North Coast Security Services Group

[2015] FWC 5010

[2015] FWC 5010

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Martin (Searle)
v
North Coast Security Services Group
(U2015/9127)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 22 JULY 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 Martin and the respondent ended on 20 June 2014. Ms Martin lodged her application at the Fair Work Commission on 3 July 2015. Her application was lodged in excess of 11 months outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Ms Martin. I wrote to her on 10 July 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 Martin provided a comprehensive statement on 10 July 2015. Ms Martin advised that she had been told by her employer that her employment was being terminated after a threat from a local police officer. She complained to the Professional Conduct Division of the New South Wales Police Force. Those issues were investigated. The officer was cleared on 6 January 2015. Ms Martin had not provided an explanation for her delay from 6 January 2015. I therefore wrote to her on 15 July 2015 and sought a further explanation. Ms Martin responded as follows:

“Thank you for your timely response. It is a refreshing change when contacting government departments. There are several reasons that my application was then further delayed.
Initially, I was not convinced that the investigation performed was adequate. My family, on my behalf, appealed to several others, asking about the appropriateness of Police investigating Police. As those responses slowly came back, most of them recommended that we contact the NSW Ombudsman with our concerns, which we did.

On the 7th of April we received a response which confirmed that no threat to Rick Nelson's business or staff had been made. At this point I decided that I wanted to know the real reason that I, and others, had been terminated if these threats were a fabrication. My parents sort legal advice and were advised that an application for unfair dismissal could not be lodged after 21 days.

I am sure you can appreciate my frustration at this point. I had already been seeking psychological assistance from my GP and a local psychologist in order to cope with my situation. For my own mental well-being I could not let this go without some form of closure. I decided to investigate the relevant legislation myself and found Industrial Relations Act 1996 (NSW) s85(3) which allowed for delays in an application if there is sufficient reason and the conduct of the employer is relevant. I believed that this was most definitely applicable to my case and immediately upon this discovery attempted to lodge my application. As you know there were issues with the website accepting the applications so after a delay of a couple of days I decided to simply e-mail my application through.”

[4] I issued an Order refusing Ms Martin’s application for an extension of time and dismissed her application on 16 July 2015.

[5] 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.

[6] 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]

[7] 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.

[8] 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)

[9] The reasons Ms Martin provided for her delay in lodgement were her engagement in a complaint against the New South Wales Police and her ignorance of the law.

I was not persuaded that Ms Martin's difficulties were out of the ordinary, unusual or uncommon

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

[10] Ms Martin became aware of the end of her relationship with the respondent on 20 June 2014.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[11] Ms Martin disputed her dismissal by lodging this application and lodging complaint the Professional Standards Division of the New South Wales Police Force.

prejudice to the employer-s.394(3)(d)

[12] I was satisfied that there would be some prejudice to the respondent caused by Ms Martin’s application being listed now than there would have been had it been lodged in time.

the merits of the application-s.394(3)(e)

[13] Merit was a neutral issue in my consideration of this application.

fairness as between Ms Martin and other persons in a similar position-S.394(3)(f)

[14] There was no issue of fairness in relation to any other person in a similar position.

[15] Having considered all of the matters to which my attention is directed by the Act I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application. I was not satisfied that Ms Martin's circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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