Rebecca Shellum v Grill'd Healthy Burgers

[2017] FWC 2429

[2017] FWC 2429

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Rebecca Shellum
v
Grill’d Healthy Burgers
(C2017/1133)

COMMISSIONER RYAN MELBOURNE, 4 MAY 2017

Application to deal with contraventions involving dismissal - extension of time.

[1] The Applicant filed in the Fair Work Commission (the FWC) a Form F8 – General protections application involving dismissal with the Commission on 1 March 2017. The Applicant was dismissed from her employment with the Respondent on 22 January 2017. The application in this matter was filed with the Commission outside the 21 day time limit specified by s.366(1)(a). The Applicant has sought that the Commission grant her an extension of time in which to file her application. The Respondent opposes an extension of time being granted to the Applicant.

[2] Both the Applicant and the Respondent have filed material in support of their respective positions. Each of the parties are self-represented.

Relevant Provisions of Act

[3] Section 366(2) deals with extensions of time and provides as follows:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[4] It is appropriate to observe that s.366(2) sets out an exhaustive list of the matters that must be taken into account. The language of s.366(2) (and its unfair dismissal counterpart, s.394(3)) does not require or even permit the Commission to take into account “any other matters that the FWC considers relevant” which is a requirement in both s.387(h) and s.392(2)(g), nor does the language of s.366(2) (and its unfair dismissal counterpart, s.394(3)) require or even permit the Commission to “take into account all the circumstances of the case” which is a requirement in s.392(2).

Relevant Authority

[5] The relevant authority for considering whether exceptional circumstances exist is Nulty v Blue Star Group P/L 1 which 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] HCA 39; (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] HCA 45; (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) [1999] UKHL 4; [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.

[6] In the present matter s.366(2)(e) is not a relevant criteria as there are no other persons in a like position to the Applicant. However each of the other criteria in s.366(2) are relevant and must be taken into account. It is important to note that the criteria which must be taken into are for the sole purpose of determining whether exceptional circumstances are present which would then permit the Commission to exercise a discretion to grant an extension of time. I approach the term “exceptional circumstances” having regard to the decision in Nulty v Blue Star Group, [2011] FWAFB 975.

The reason for the delay

[7] The Applicant advanced a number of reasons for the delay in making her application. These included mental health issues, difficulty in getting correct advice, confusion as to the role of the Fair Work Ombudsman (FWO) and the FWC.

Mental health issues

[8] The Applicant was given an opportunity of filing with the Commission any medical evidence as to her mental health issues. The only medical certificate provided by the Applicant was one dated 20 April 2017 from her treating medical practitioner. The medical certificate identifies that the Applicant has been seen by the medical practitioner “since 2015 and is being managed for stress, anxiety-depression mostly as a result of work place issues. She was also diagnosed with pseudo-dementia which can be associated with depression and leads to forgetfulness.”

[9] The Commission accepts the accuracy of the medical certificate but of itself it does not explain the delay in making the application in this matter. The Applicant in her material in support of an extension of time appears to contend that her mental health issues have been present for a reasonable period of time prior to her dismissal as well as during the period from the dismissal to the date the application was made.

[10] Whilst the medical certificate identifies a diagnosis of pseudo-dementia it does not give any information as to the when this commenced nor does it identify the severity of the pseudo-dementia nor does it identify what medication (if any) the Applicant is being prescribed to treat the pseudo-dementia. By its very name pseudo-dementia is not dementia and pseudo-dementia is treatable.

[11] The mental health issues of the Applicant do not explain the delay in making the application in this matter.

Difficulty in getting advice and confusion as to roles of FWO and FWC

[12] Ordinarily these two reasons would not give rise to the existence of exceptional circumstances. When Parliament first enacted the Fair Work Act2009, Parliament considered that the appropriate time frame in which, in ordinary circumstances, a person should be able to make a general protections application involving dismissal was 60 days. At the same time Parliament considered that the appropriate time frame in which, in ordinary circumstances, a person should be able to make an unfair dismissal application was 14 days. Parliament later changed its view and determined that 21 days was the appropriate time frame in which, in ordinary circumstances, a person should be able to make either, a general protections application involving dismissal, or, an unfair dismissal application.

[13] The ordinary circumstances facing a person who has been dismissed includes a level of stress, anxiety and includes the issues around trying to find new employment and meeting existing financial obligations as well as trying to find out what legal rights the person may have to challenge the dismissal and then to initiate such a challenge. Parliament has determined that in the ordinary circumstances facing a dismissed employee that 21 days is sufficient time to make an application to the Commission.

[14] The Applicant describes her own circumstances in such a way that they appear to be within the ordinary circumstances facing a person who has been dismissed.

[15] Further the Applicant’s circumstances post dismissal must be seen in light of the Applicant’s conduct prior to the dismissal.

[16] The Respondent identifies that in the 8 month period prior to being dismissed that the Applicant had been stood down from work and that in that period the Applicant had made a complaint to the Fair Work Ombudsman which led to mediation occurring in relation to that complaint and that the Applicant had also approached Worksafe WA and made allegations of bullying against the Respondent which led to a Worksafe WA investigation.

[17] Unlike many persons who are dismissed the Applicant had practical experience of contacting and using different statutory bodies in relation to workplace issues.

[18] Nothing put to the Commission by the Applicant in relation to this issue would explain the delay in making the application.

Any action taken by the person to dispute the dismissal

[19] The Applicant does not make any specific contention that she took action to dispute her dismissal which was separate from the making of the application in this matter.

[20] In the application lodged with the Commission on 1 March 2017 the Applicant stated:

“I spoke to fwo (sic) last week and told them I have been now sacked, ……., and its not it fwo remit as they say speak with you at fwc (sic).”

[21] The reference to “last week’ identifies that the Applicant only spoke to the FWO at a time after the 21 day period specified in s.366(1)(a) had passed.

[22] The Respondent provided a response to this criteria in s.266(2)as follows:

“The termination letter provided to the Applicant included the following:

‘If you have any further questions regarding or evidence disputing this decision, please forward them through to the HR department via [email protected]. Any disputes will be independently reviewed by the Chief Executive Officer and your evidence must be put in writing with evidence to support your claims. Should the business not receive any response in writing by 22 January 2017, your employment will come to an end and entitlements processed at the earliest opportunity.

Despite having been off work for eight months’ on full pay immediately before her termination, the Applicant failed to dispute her termination directly with the Respondent either by 22 January 2017 or at any time thereafter.”

Prejudice to the employer (including prejudice caused by the delay)

[23] The Respondent contends that “the lateness of the application has caused the Respondent significant disadvantage and unfairness.” The Respondent also contended that:

“The Respondent has already been put to cost and inconvenience in addressing the Applicant’s various vexatious attempts to delay the disciplinary process during the course of her employment. As a consequence, the Applicant was provided with pay over an eight month period whilst the Applicant was suspended on full pay.

The Respondent was then put to further cost and inconvenience in responding to the present application that has been filed out of time, and has now provided its Outline of Submissions despite the Applicant having failed to provide hers.”

[24] No evidence was provided by the Respondent to identify the prejudice it would suffer. The Commission could not reach a conclusion that the Respondent would suffer any prejudice if an extension of time was granted to the Applicant. In the present matter this criteria neither weighs in favour of or against a finding as to the existence of exceptional circumstances.

The merits of the application

[25] As is often the case neither the Applicant nor the Respondent have addressed the merits of the Applicant’s case in any detailed manner and it is not appropriate for the Commission to embark on a detailed consideration of the substantive case. 2 In the present matter this criteria neither weighs in favour of or against a finding as to the existence of exceptional circumstances.

Conclusion

[26] Having taken into account each of the criteria in s.366(2) which are relevant the Commission is not satisfied that there are any exceptional circumstances in the present matter which would give rise to the need for the Commission to consider exercising its discretion to grant an extension of time. As the application in this matter was not filed within the time specified by s.366(1)(a) the application is out of time and out of jurisdiction. The application is dismissed.

COMMISSIONER

 1   [2011] FWAFB 975.

 2   Kyvelos v Champion Socks Pty Ltd Print T2421 [14].

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