Ruth Gebbie v Intework Incorporated Employment T/A Intework ADE

[2015] FWC 2281

[2015] FWC 2281

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ruth Gebbie
v
Intework Incorporated Employment T/A Intework ADE
(U2015/2394)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 31 MARCH 2015

Application for relief from unfair dismissal.

[1] Ms Ruth Gebbie alleged that the termination of her employment by Intework Incorporated Employment on 19 December 2014 was unfair.

[2] Ms Gebbie’s unfair dismissal application lodged on 15 January 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 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]

(a) the reason for the delay;

[5] Ms Gebbie advised that her husband was a fly in fly out worker and her sons were overseas visiting an ill relative at the time of her dismissal. She submitted that it was a difficult time for her as she had to deal with the dismissal without their support.

[6] She submitted that she filed an application with the Western Australian Industrial Relations Commission which delayed the process. That application was lodged on 12 January 2015. Even if Ms Gebbie had lodged her application with the Fair Work Commission on that date her application would not have been lodged in time. She said that the combination of the holiday season and her state of mind created an environment of helplessness in face of her unfair dismissal.

[7] At the telephone conference, Ms Geddie said she thought she had 28 days to file her claim. Only when advised by the WAIRC that she was in the wrong jurisdiction, did she find out that she was out of time to lodge her application. It is not unusual for employees to be unaware or mistaken about the time limits that apply for lodging an unfair dismissal application.

[8] It is not unusual for employees to be negatively impacted by dismissal. While Ms Gebbie made reference to her state of mind no medical evidence was put to the Commission to support a finding that her condition prevented her from making an application. I do not consider Ms Gebbie’s explanation for the delay weighs in favour of finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[9] Ms Gebbie became aware of the dismissal when it took effect. She had the full 21 days to lodge her application. This does not weigh in favour of finding that there are exceptional circumstances.

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

[10] Ms Gebbie took no steps other than lodging an unfair dismissal application first with the WAIRC and then the Commission. This does not weigh in favour of finding that there are exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[11] Intework did not make any submissions that it would be prejudiced if an extension of time were granted. This weighs in favour of finding exceptional circumstances.

(e) the merits of the application;

[12] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. However, as I am unable to conclude that Ms Gebbie’s claim has no prospects of success, this weighs in favour of finding that there are exceptional circumstances.

(f) fairness as between the person and other persons in a similar position.

[13] No submissions were made in relation to this criterion.

Conclusion

[14] Ms Geddie’s explanation for the delay does not support a finding of exceptional circumstances. While there are factors that weigh in favour of an extension of time they are not so strongly in favour as to outweigh the lack of a reasonable explanation for the delay.

[15] Ms Geddie’s application for an extension of time is dismissed and consequently her application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

R. Gebbie on her own behalf.

F. Bellazzini-Eiszele for the Respondent.

Hearing details:

2015.

Melbourne and Perth by telephone link:

31 March.

 1   [2011] FWAFB 975

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