Renee Gutzeit v Liquorland (Qld) Pty Ltd T/A Spirit Hotels Liquorland (South East Queensland)

[2015] FWC 3806

[2015] FWC 3806

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Renee Gutzeit
v
Liquorland (Qld) Pty Ltd T/A Spirit Hotels Liquorland (South East Queensland)
(U2014/10681)

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 application was referred to me for determination by a Full Bench of the Fair Work Commission 1.The date of termination of employment was in dispute and required determination. The application was lodged on 8 July 2014.

[3] If the date of termination of employment was 25 June 2014 the application was due to be lodged no later than 17 July 2014 and was therefore lodged within time on 8 July 2014. If the date of termination of employment was 13 June 2014 the application was due to be lodged no later than 8 July 2014 and was therefore 4 days outside the prescribed statutory time limit on 8 July 2014.

[4] I listed this application for hearing in Brisbane on 23 April 2015. The respondent sought to be legally represented. I refused that application. The applicant was represented by her husband. The respondent was represented by Ms Stevenson a human relations representative from Coles. The applicant's husband did not object to her appearance.

[5] I heard evidence from the applicant. The applicant gave evidence that she was unsure of the date of termination of employment because there was a misstatement of the date of termination in the Separation Certificate dated 25 June 2014 and received on 22 July 2014.

[6] I am satisfied that the Ms Gutzeit was aware that her employment had been terminated at her interview with the respondent on 13 June 2014. I am satisfied that all of Ms Gutzeit’s conduct following that date was consistent with her having an understanding that her employment had been terminated. Ms Gutzeit was aware of impending disciplinary action against her on 12 June 2014 when she was summoned to attend a meeting with Mr Neill. 2 At that meeting Ms Gutzeit conceded that she was told that she would be paid her outstanding entitlements and two weeks’ notice3. She was also asked to return any company property.4 Following the meeting on 13 June 2014 Ms Gutzeit did not work any of her ordinary shifts.5

[7] It was persuaded that Ms Gutzeit demonstrated her understanding that her employment relationship had come to an end after the meeting of 13 June 2014 by the following conduct:

1. Ms Gutzeit left the premises of the respondent immediately following the meeting on 13 June 2014; 6
2. The following week Ms Gutzeit asked a fellow employee to clean out her drawer; 7
3. Ms Gutzeit handed back company keys on the Friday following 13 June 2014; and 8
4. On 26 June 2014 Ms Gutzeit emailed the respondent, enquiring as to her final pay and requesting a copy of her file and licences. 9

[8] I was not satisfied that the error in the Separation Certificate retrospectively altered the date of termination of employment or effected Ms Gutzeit’s understanding of it.

[9] I was satisfied and found that the relationship between Ms Gutzeit and the respondent ended on 13 June 2014 and therefore, the application was lodged 4 days outside the statutory time limit.

[10] Having made that finding it was necessary to determine the Ms Gutzeit’s application for an extension of time.

[11] When determining this application I had before me the Application for Unfair Dismissal lodged by Ms Gutzeit.

[12] 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.

[13] 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]

[14] 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.

[15] 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)

[16] The reasons Ms Gutzeit provided for her delay in lodgement were :

1. Her misunderstanding as to the date of termination of employment;
2. Her very great upset at the termination of her employment, and
3. Her husband's concurrent illness with her application and her obligation to care for him.

I am not satisfied that Ms Gutzeit’s error or misunderstanding of the date of termination of employment was sufficient to amount to a reason to provide an exception to the statutory time limit for lodgement. Nor was I satisfied that her upset and her husband's illness were sufficient either. The test is a very exacting one.

[17] While sympathetic to her circumstances, I was not persuaded that Ms Gutzeit’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)

[18] Ms Gutzeit became aware of the end of her relationship with the respondent on 13 June 2014.

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

[19] Ms Gutzeit disputed her dismissal by lodging this application.

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

[20] I was satisfied that there would be no greater prejudice to the respondent caused by Ms Gutzeit’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)

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

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

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

[23] 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 I dismissed the application. I was not satisfied that her circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

 1   [2015] FWCFB 1257

 2   PN172

 3   PN212

 4   PN213

 5   PN222

 6   PN219

 7   PN225

 8   PN225

 9   PN226

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