Robyn Nudd v Commonwealth Bank of Australia

[2015] FWC 780

[2015] FWC 780

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Robyn Nudd
v
Commonwealth Bank of Australia
(U2014/14749)

DEPUTY PRESIDENT SAMS SYDNEY, 2 FEBRUARY 2015

Application for relief from unfair dismissal - application lodged ‘out of time’ - serious illness and death of father - representative error - reasons for the delay constitute ‘exceptional circumstances’ - extension of time granted.

[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 of the Fair Work Act 2009 (the ‘Act’). Ms Robyn Nudd (the ‘applicant’) was given notice of the termination of her employment with the Commonwealth Bank of Australia (the ‘respondent’ or the ‘Bank’) on 8 October 2014, effective that same day. The applicant lodged an application for an unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 31 October 2014. Her application was therefore lodged 2 days outside of 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, inter alia, the Form F2 Application for Unfair Dismissal lodged by the applicant. The Commission wrote to the applicant, asking her to provide a statement as to why the application should be accepted ‘out of time’. On 18 December 2014, Ms K Byrnes, the applicant’s solicitor, provided submissions, together with a statement of herself and a statement of the applicant. The Commission wrote to the respondent seeking its views on the application to extend the time for lodgement, given the material filed by, and on behalf of the applicant. The respondent replied through the lodgement of its Form F4 - Objection to Application for Unfair Dismissal Remedy on 22 December 2014. Having considered all of the above material, I issued an Order on 14 January 2015 granting an extension of time and dismissing the jurisdictional objection raised by the respondent. These are my reasons for doing so.

[3] The relevant legislative framework, guiding 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 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 the jurisdictional gateway for the further exercise of the Commission’s discretion to extend the time for filing of 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 s 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 turn now to each of the criteria under s 394(3) of the Act.

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

[6] The witness statement of the applicant set out that she had been especially close to her parents as she had left a violent marriage in November 2012 and that she provides assistance to her visually impaired mother. Her father passed away on 20 October 2014, after being ill for an extended period of time and she had been required to make arrangements for a private cremation (23 October 2014) and memorial service (25 October 2014). While she had spoken to Ms Hammer of the Finance Sector Union of Australia (the ‘Union’) shortly after her dismissal, Ms Hammer had merely said that she would contact the Bank to challenge the dismissal and seek a better outcome for her. Ms Hammer had not mentioned an unfair dismissal application. On or around 23 October 2014, Ms Hammer informed the applicant that the Bank was not willing to resolve the issue. On 28 October 2014, Mr Schembri of the Union called her to ask if she was interested in pursuing an unfair dismissal application.

[7] The applicant requested that her matter be referred to a lawyer, which was done on 29 October 2014. She had noticed a missed call and a message on her phone on 30 October 2014. She had also received an email from Mr David Taylor of Turner Freeman Lawyers, which was as follows:

‘Your details were passed onto us by the FSU in relation to a potential workers compensation matter. The referral indicates that you seek assistance in relation to Workers Compensation. We have referred your matter to our Newcastle office.

I note that the referral also indicates that you were dismissed on 9 November 2014. Do you seek assistance or advice in relation to the circumstances of the dismissal? If so, could you please call me on [number supplied], or Kerry Byrnes of our office on [number supplied] as soon as possible. There is some urgency associated with this as any unfair dismissal claim would need to be commenced with 21 dsays [sic] of termination [emphasis added].’

The applicant said she subsequently spoke to Ms Byrnes for Turner Freeman Lawyers on 31 October 2014, who after a discussion about a draft application, filed the application that day.

[8] In a witness statement, Ms Byrnes said that the referral of the applicant to Turner Freeman Lawyers by the Union on 29 October 2014 set out that the dismissal of the applicant had taken place on 9 October 2014 and that she wished to consult a lawyer in relation to workers’ compensation. The matter was allocated to a partner of the firm, Mr Gerard McMahon. Mr Taylor, who had access to these emails, had noticed that the referral set out that the applicant had been dismissed on 9 October 2014 and he tried to call her on that same day. As Mr Taylor was on leave from 31 October 2014, he had asked Ms Byrnes to speak with the applicant, which she did on 31 October 2014. The application was filed that day.

[9] In submissions for the applicant, Ms Byrnes set out the timeline of the application as described above. She submitted that the reason for the delay was a combination of the death of the applicant’s father and ‘representative error’ relating to the mistaken description of the matter.

[10] In the Form F4 Objection to Application for Unfair Dismissal Remedy, Mr A Mergedichian, Workplace Relations Specialist, put that these reasons would not constitute ‘exceptional circumstances’. There was no explanation for the period from the date the applicant’s employment came to an end and the date on which her father died (12 days).

[11] I find that the combination of the obvious stress and anguish of her father’s illness and his ultimate death and the understandable confusion arising from errors made by the applicant’s representatives, constitute ‘exceptional circumstances’ within the meaning of s 394(3) of the Act. It is entirely understandable that the applicant would be preoccupied with the serious illness of her father and the arrangements for her father’s cremation and memorial service when she had entrusted her matter to her Union representatives and then with lawyers to contest her dismissal. She was entitled to rely on the expertise of her representatives, who regrettably failed to exercise due care in, firstly, correctly identifying the date of the applicant’s dismissal and, secondly, correctly categorising the legal nature of the applicant’s dispute with the Bank. While I would not categorise these circumstances as deliberate or incompetent ‘representative error’, it is clear that incorrect information had been conveyed to Turner Freeman Lawyers, totally outside the applicant’s control. I also note that the applicant was notified by Ms Hammer of the Union, that the Bank did not wish to resolve the matter on the day of her father’s cremation.

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

[12] The applicant’s Form F2, the respondent’s Form F4 and the applicant’s submissions and witness statements all identify 8 October 2014 as the date on which the applicant was advised of her dismissal. I find that the applicant became aware of her dismissal on 8 October 2014.

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

[13] The applicant’s submissions and evidence, which were not contradicted by the respondent, were that she had contacted her Union almost immediately after her dismissal to dispute her termination and in order to seek a resolution. Her actions weigh in favour of a grant of an extension of time for lodgement of the application.

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

[14] Ms Byrnes submitted that the delay in filing the application represented no material prejudice to the respondent. The respondent did not specifically address this point. Given the short delay in filing the application (2 days) and the significant resources available to the Bank, I find that there would be little, if any, prejudice to the respondent in the event that an extension of time were granted.

Merits of the application (s 394(3)(e))

[15] Mr Mergedichian said that it would not be in the public interest to grant the extension of time application sought by the applicant. The applicant had made admissions in relation to her dishonesty in completing her loan application. This was a breach of her employment contract and the Bank’s Statement of Professional Practice. He put that employees of banks are to be held to stricter standards of honesty and integrity than other employees; See: Tokoda v Westpac Banking Corporation T/A Westpac [2012] FWAFB 3995 and Hussein v Westpac Banking Corporation (1995) 59 IR 103.

[16] Ms Byrnes said that the application had clear merit as the issues relating to dishonesty concerned the failure of the applicant to disclose the existence of a credit card with a balance of under $300 when lodging an application for credit with the Bank. It was questionable as to whether there was a valid reason for the applicant’s dismissal, as the credit application was a private matter, unrelated to her employment.

[17] It is important to note 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. Given the circumstances and the limited submissions on the merits, I am able only to make a prima facie assessment that the applicant’s case is not devoid of merit. In addition, contrary to Mr Mergedichian’s submissions, there is no ‘public interest’ test under s 394(3) of the Act. It is not a relevant consideration.

Fairness as between the applicant and another person in a similar position (s 394(3)(f)

[18] Ms Byrne said that the applicant was not aware of another person in a similar position to herself. Mr Mergedichian did not directly address this point. This is a neutral factor in my consideration of this matter.

[19] Having considered all of the matters which the Commission is required to take account under s 394(3) of the Act, I am satisfied that there are ‘exceptional circumstances’ which warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The time for lodgement for an application for an unfair dismissal remedy is extended to 31 October 2014. I confirm my order of 14 January 2015.

DEPUTY PRESIDENT

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