Rosslyn Underwood v ABC International Nominees Pty Ltd as Trustee for ABC International Services Trust

[2015] FWC 3307

[2015] FWC 3307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rosslyn Underwood
v
ABC International Nominees Pty Ltd as Trustee for ABC International Services Trust
(U2015/5066)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 19 MAY 2015

Application for relief from unfair dismissal - extension of time not granted.

[1] Ms Underwood has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with ABC International Nominees Pty Ltd as Trustee for ABC International Services Trust (ABC International). This decision details my conclusion with respect to the time for lodgement of that application.

[2] Ms Underwood’s application was lodged on 22 April 2015. In that application her representative Mr Field, of Webster’s Lawyers, advised that Ms Underwood’s employment was terminated on or about 25 February 2015. Ms Underwood’s application sought that the Fair Work Commission (the FWC) consider the following information in deciding whether to accept the application out of time:

“The Applicant sustained injuries in the workplace on 24 February 2015 that required her hospitalisation. Those injuries are subject of a claim pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA). Due to the sudden cessation of her income the worker has been struggling financially and has been engaged in continued discussions with WorkCover with respect to payment of interim payments pending the formal determination of the claim.

The grounds of dismissal as conveyed to the worker on or about 25 February 2015 were unclear and only on receipt of her Separation Certificate from the employer on or about 23 March 2015 did the worker become clearly aware of the allegations made against her and the nature of the alleged grounds of dismissal.

Due to her injuries, treatment requirements, dealing with WorkCover and associated factors the Applicant has been delayed in progressing this application.

The worker will suffer significant prejudice should an extension f time not be granted to pursue the matter and the employer’s actions and approach leading up to and following the dismissal require review by the Commission.” 1

[3] On 30 April 2015 my Associate corresponded with both Ms Underwood and ABC International and advised that the extension of time issue would be considered through a telephone conference on 18 May 2015. Substantial information about the extension of time issue was provided to the parties. Ms Underwood was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 11 May 2015.

[4] Additional information was not received from Ms Underwood within the specified time. However, on 14 May 2015 advice was provided in the following relevant terms:

“3. On 24 February 2015 I sustained injuries in the workplace that required me to attend Emergency Department.

4. The injuries I suffered on 24 February 2015 are now subject of a claim pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA).

5. On 24 February 2015 I attended at the Flinders Medical Centre Emergency Department as a consequence of my injuries and at

6. A WorkCover Medical Certificate was issued to me on 24 February 2015. A copy of that Certificate is annexed hereto and marked “RU1”.

7. In the early afternoon of 25 February 2015 I requested the respondent provide to me a WorkCover Claim Form to enable me to complete the claim with respect to the incident of 24 February 2015.

8. I received a text message on 25 February 2015 at 6:51pm from the respondent advising my employment was terminated and that a letter would be sent to me. A copy of that text message is annexed hereto and marked “RU2”.

9. By email dated 26 February 2015 I was provided a letter dated 26 February 2015 advising of the termination of my employment and asserting various grounds for said termination. I dispute the allegations made in that letter. A copy of the letter is annexed hereto and marked “RU3”.

10. As a consequence of the termination of my employment I did not have any income and was in immediate financial hardship.

11. My employer did not provide me an Employment Separation Certificate for a number of weeks and so at that point my sole potential source of income at that time was to be WorkCover. I spent the next few weeks talking with WorkCover and trying to get provisional payments / interim payments commenced. All the while I was continuing to see my treating medical practitioners and receive ongoing treatment for my injuries.

12. Throughout the time following the dismissal I have been in a dire financial position and significantly restricted in my ability to do things due to the significant injuries I suffered on 24 February 2015.

13. WorkCover have finally agreed to commence payment of interim income maintenance to me and that has enabled me to start dealing with other matters.

14. On or about 23 March 2015 I finally received an Employment Separation Certificate from the respondent after approximately 6 requests to them for that document. The document was dated 19 March 2915 and alleged unsatisfactory work performance which I dispute. A copy of that Certificate is annexed hereto and marked “RU4”.

15. I was only able to apply for Centrelink assistance in late March 2015. Payments from Centrelink commenced on or about 26 March 2015. I obtained a payment summary from Centrelink that was issued to me. A copy of that Payment Summary is annexed hereto and marked “RU5”.

16. I am presently unable to return to work and I am certified unfit for work as a consequence of my injuries. A WorkCover Medical Certificate was issued 25 April 2015 to that effect. A copy of that Certificate is annexed hereto and marked “RU6”.” 2

[5] The Employer’s Response to the application advised that the correct name of the employer was The Trustee for ABC International Services Trust. At the conference on 18 May 2015 this issue was the subject of some discussion. It was agreed that the application should be amended to reflect the correct name of the employer. Subsequent to the conference I received further advice which confirmed that the employer is ABC International Nominees Pty Ltd as Trustee for ABC International Services Trust. I have amended the application accordingly pursuant to s.586 of the FW Act. That Employer’s Response also confirmed that ABC International asserted that the termination of Ms Underwood’s employment was advised to her and took effect on 25 February 2015. ABC International opposed any extension of time and opposed the application on the basis that it was a small business such that the Small Business Fair Dismissal Code had application and that, accordingly, Ms Underwood had not completed the requisite minimum employment period so as to be protected from unfair dismissal.

[6] Ms Underwood participated in the telephone conference. She was represented by Mr Field, of counsel. Ms Zurawska from ABC International also participated in this conference, but ABC International was represented by Mr Lynch of Employsure Pty Ltd. In both cases grants of permission were made pursuant to s.596(2)(a). My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[7] Section 394 relevantly states:

“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.”

[8] On the information before me I am satisfied that the application was made some 35 days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 3 which stated:

“[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.”

[9] I have concluded that Ms Underwood’s reasons for the delay are inconsistent. She asserts that, shortly after the termination of her employment she contacted the Fair Work Commission by telephone and understood from that discussion that the Commission would pursue an application on her behalf. She advised that, it was not until she saw Mr Field approximately one week before the application was lodged that she was informed of the requirement that she lodge the application herself. I am unable to accept Ms Underwood’s advice in this respect represents an exceptional circumstance. I have noted that Ms Underwood makes what amounts to alternative submissions, in that she asserts that she has been on medication since suffering a workplace injury on 24 February 2015 and that this medication limited her capacity to pursue the matter until late April. Medical advice which confirms that degree of incapacity, and its duration, is not before me. In any event, Ms Underwood’s advice is also inconsistent with her advice that, after the termination of her employment, she was preoccupied with matters involving her injury and the pursuit of her workers compensation claim and was unable to be transported to the Fair Work Commission to lodge this application. In this regard she acknowledges that she was transported to other places by family members. Further, Ms Underwood appears to rely on advice about the basis for the termination of her employment her Employment Separation Certificate which she received around 23 March 2015 as a basis for late lodgement of this application. Ms Underwood also asserts that a reason for the delay relates to the financial pressure which she was under at that time such that she was unable to pay the requisite lodgement fee. The various reasons for the delay promulgated by Ms Underwood incorporate such inconsistencies that they negate each other in large measure. Further, none of these reasons are of the nature of exceptional circumstances. I am not satisfied that Ms Underwood was unable to pursue her application or that she took appropriate steps to do so. I am not satisfied that Ms Underwood’s reasons for the delay are at all indicative of exceptional circumstances.

[10] It is clear from Ms Underwood’s application that she was aware of the termination of her employment on the day this termination took effect. I am not satisfied that, apart from the late lodgement of this application, Ms Underwood pursued other actions so as to challenge the termination of her employment as distinct from her pursuit of her workers compensation claim. I consider that an extension of time of this magnitude would most likely prejudice the Respondent but, because this has not been established to me, I have regarded this issue as a neutral consideration.

[11] In terms of the merits of the application, I have noted that ABC International asserts that it was a small business at the time of the termination of Ms Underwood’s employment.

[12] Section 383 states:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

[13] Ms Underwood’s application confirmed that she commenced employment with ABC International on or about 21 July 2014. The Employer’s Response confirms this advice. Accordingly, if ABC International establishes that it was a small business as at 23 March 2015, Ms Underwood is not a person protected from unfair dismissal and cannot pursue her application. Ms Underwood asserts that ABC International is not a small business and that, at the time of the termination of her employment, it was the employer of some 311 interpreters. Accordingly, I have also regarded the merits of the application as a neutral factor in my considerations of the extension of time issue.

[14] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[15] Accordingly I have concluded that the material before me does not establish that Ms Underwood’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR567386) giving effect to this decision will be issued.

Appearances (by telephone):

A Field of counsel for Ms Underwood

M Lynch as Agent for ABC International Nominees Pty Ltd as Trustee for ABC International Services Trust

Hearing (Conference) details:

2015.

Adelaide:

May 18.

 1   Form F2, para 1.4

 2   Statutory Declaration of Ms Underwood, dated 14 May 2015, paras 3 - 16

 3   [2011] FWAFB 975

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