Samantha Micallef v Garfield Child Care Pty Ltd t/as Garfield Child Care

[2013] FWC 5447

[2013] FWC 5447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 365 - Application to deal with contraventions involving dismissal

Samantha Micallef
v
Garfield Child Care Pty Ltd t/as Garfield Child Care
(C2013/4440)

DEPUTY PRESIDENT SAMS SYDNEY, 8 AUGUST 2013

Application to deal with contraventions involving dismissal - alleged dismissal due to pregnancy and/or family responsibilities - jurisdictional objection - whether application ‘out of time’ - date of dismissal specified and positively ascertainable - ‘exceptional circumstances’- medical emergency - applicant met with legal representatives before and after medical emergency - whether genuine redundancy - no ‘exceptional circumstances’ - prospects of success not strong - application dismissed.

INTRODUCTION

[1] On 20 May 2013, Ms Samantha Micallef (the ‘applicant’), lodged an application pursuant to s 365 of the Fair Work Act 2009 (the ‘Act’) seeking relief in respect to the termination of her employment by Garfield Child Care Pty Ltd t/as Garfield Child Care (the ‘respondent’ or the ‘Centre’) on 2 May 2013. The applicant asserts that the termination of her employment was in contravention of ss 84, 340 and 351 of the Act.

[2] The letter terminating the applicant’s employment, dated 26 April 2013, was expressed as follows:

‘Dear Samantha,

I regret to advise that Your (Samantha’s) services is no longer needed after the review of staffing levels in the Centre as of 29 April 1012 [sic]. We advised in our letter dated 22 February that your employment will be terminated after the maternity leave. However the circumstances have changed after the recruitment of Annalise Brown. Our salaries have gone up significantly in the past few months and it is prudent to cut costs for the survival of the operation of the centre.

In addition, your employment entitlements in accordance with the Fair Work Australia will be paid because we could not keep you as a full time staff until 15 June 2013 as you planned and agreed.

All entitlements can be paid either as a one off Lump sum payment on Thursday 2 May or over a period of six weeks commencing 2 May so that you would get regularly fortnight payments until your Government maternity pay. Please advise your preference.

Thank you for your service and wish you all the best for a bright future.

Yours Sincerely,

Sri Anandrajah

Managing Director’

[3] It was not disputed that the applicant’s employment was terminated in a meeting with the Managing Director of the Centre on 26 April 2013 and she was given the above letter during the meeting. As her s 365 application was lodged 24 days later, it falls foul of the 21 day time limit set by s 366 of the Act. This decision will determine whether the time for filing the application should be extended by the Fair Work Commission (the ‘Commission’), in the exercise of its discretion under s 366(2) of the Act.

[4] Notwithstanding that the respondent sought to argue against the Commission’s grant of an extension of time, the application was listed for conciliation on 6 June 2013. No agreement was reached and the respondent pressed for its objection to be determined. Directions for the filing and service of submissions and any evidence relied upon were issued. The respondent filed one statement from Mr Sivakolundu Srianandarajah, the Centre’s Managing Director and the applicant relied on a statement of her solicitor, Mr Cameron Richard Burge. Both statements were uncontested and neither deponent was required for cross examination. Their evidence largely serves to set the background of the applicant’s employment and her termination of employment.

BACKGROUND

[5] The Centre has been operating since October 2007. In January 2013, it employed nine full time staff, including the applicant and one trainee. The applicant commenced employment on 27 September 2010. In January 2013, Mr Srianandarajah consulted his financial advisors concerning existing staffing levels, with a view to reducing costs. He was advised that the Centre did not require two Certificate Three employees and could afford to lose one and replace that person with a trainee. He decided to retain another employee over the applicant, due to the former’s performance, good relations with other staff, the children and parents, her longevity of service and family commitment to the business. Mr Srianandarajah then met with his managers. He was aware by this time that the applicant was pregnant. He said that in order to be fair to her, he decided to delay the decision to make her redundant.

[6] On 22 February 2013, Mr Srianandarajah met the applicant and discussed redundancy, her termination and his reasons for the decision. The applicant had applied for maternity leave from 15 June 2013. Mr Srianandarajah proposed to keep her ‘on the books’ to facilitate her entitlement to Centrelink benefits.

[7] During the week before 29 April 2013, Mr Srianandarajah claimed his salary costs were blowing out and he decided to bring forward the applicant’s redundancy to 26 April 2013. The applicant received the letter of termination (see para [2]) and did not return to the Centre after leaving that day. On 30 April 2013, the applicant returned her keys to the Centre to a manager offsite.

[8] On 29 April and 30 April, the applicant emailed to the Centre a WorkCover NSW Certificate of Capacity citing an injury date of 17 April 2013. Mr Srianandarajah claimed he had no record of any incident or injury at work that day, although he believed the applicant was on sick leave on 18 and 19 April 2013. When she returned to work, the applicant did not mention that she was stressed or had suffered a psychological injury. Another medical certificate of 21 April 2013 recommended she was fit to resume work. Her WorkCover claim was denied by the insurer on 4 June 2013.

[9] In the next pay run after the applicant’s termination (2 May 2013), she was paid her termination payments and provided with an employment separation certificate. The letter of 2 May 2013 and separation certificate consistently expressed her last employment day, and her termination entitlements, including redundancy calculation was up to 26 April 2013.

[10] Mr Burge’s evidence dealt with the instructions he received from the applicant on 29 April 2013. A conference with Counsel was arranged for 6 May 2013. At the conference, the applicant undertook to provide Mr Burge with further information and documentation ‘before any application for unfair dismissal was lodged.’

[11] Mr Burge said that on 8 May 2013, the applicant went into labour and gave birth to a ten week premature daughter. Mr Burge did not receive the earlier requested documentation until 14 May 2013. On 15 May, the documentation was forwarded to Counsel and on 20 May 2013, the application for the Commission to deal with a general protections dispute was filed.

SUBMISSIONS

For the respondent

[12] Mr C McArdle, Solicitor, opposed the application to extend time for filing the application and said that there were no ‘exceptional circumstances’ which warranted the Commission’s exercise of its discretion to extend time. He emphasised that the applicant was genuinely redundant and she was advised of the situation on 22 February 2013. Her last day of employment was 26 April 2013. On that day, she had removed her belongings, vacated the premises and had not returned at any time subsequently. Her final termination pay was paid in the respondent’s next pay run (2 May 2013). It included a redundancy payment of six weeks pay, to which she was not entitled, as the employer was exempt from paying redundancy pay as it employed less than 15 employees at the relevant time. She also received an employment separation certificate identifying her last day of employment as 26 April 2013.

[13] Mr McArdle submitted that the applicant had clearly understood and accepted that she had been dismissed on 26 April 2013 because she:

(a)	did not return to the premises of the respondent to work after she left on 26 April 2013;
(b)	did not dispute the payments made to her on the termination of her employment;
(c)	did not dispute the date of dismissal specified on the employment separation certificate until the filing of her outline of submissions in these proceedings.
(d)	In her F8 application, she notes, without any explanation, that the date of her dismissal was 2 May 2013; and
(e)	instructed her solicitors on Monday 29 April that her employment had been ‘purportedly terminated’ on Friday 26 April 2013.

[14] Mr McArdle rejected the applicant’s claim that the 26 April letter (see para [2]) was not valid. Firstly, the reference to her services being no longer required as of 29 April simply meant that she was not required to work on, and from, her next scheduled work day after the weekend of 27-28 April. Secondly, the respondent was seeking to assist the applicant by proposing that her termination pay be structured in such a way so as to ensure she remained eligible for the Federal Government’s Paid Parental Leave Scheme. Neither of these factors were relevant to the actual date of her dismissal - 26 April 2013.

[15] As to the effect of the date she was paid her entitlements (2 May 2013), this was also irrelevant to the date of dismissal as:

● she did not perform work at any time after 26 April;
● it is not unusual for an employer to finalise and make payments of termination well after the date of dismissal;
● the respondent wanted to assist her in retaining eligibility for the Paid Parental Leave Scheme; and
● s 365 provides for the 21 days to commence on the date the dismissal takes effect, not any subsequent date related to the receipt of termination payments.

[16] It was further put by the applicant that the date of her dismissal was not specific. If this was the case, her application would be beyond jurisdiction, because s 365 is predicated on a dismissal having taken effect.

[17] In directly addressing the matters the Commission is required to take into account in this case, Mr McArdle relied on Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (‘Nulty v Blue Star’). He noted that the applicant first became aware of her dismissal on 22 February 2013 and was actually dismissed on 26 April 2013. She did not return to work and instructed her solicitor that she had been terminated on 26 April.

[18] As to the reasons for the delay in filing her application (s 366(2)(a)), the applicant said it was due to the premature birth of her child on 8 May 2013 - the twelfth day after dismissal. Prior to this time, she had:

(a)	completed a form titled ‘WorkCover NSW - Certificate of Capacity’ and sent it to the respondent with a medical certificate;
(b)	instructed her solicitor regarding the dismissal;
(c)	instructed her solicitor to contact the respondent and to brief Counsel;
(d)	instructed her solicitor to send a letter to the respondent; and
(e)	met with her solicitor and Counsel and provided relevant documentation to them.

[19] On 14 May, the applicant provided additional documents to her solicitor, yet the application was not filed for a further six days. The applicant took no action to dispute her dismissal between 22 February and 20 May (s 366(2)(b)) and importantly, made no allegation during this time, of having been selected for redundancy due to her pregnancy.

[20] Mr McArdle claimed the respondent would be prejudiced in having to expend further costs and time in defending the claim, particularly given the applicant’s WorkCover claim has been declined by the insurer (s 366(2)(c)).

[21] As to the merits of the application (s 366(2)(d)), Mr McArdle submitted that there had been no evidence provided of any contravention of ss 84, 340 or 351 of the Act. The applicant was not on maternity leave at the time of her dismissal - a prerequisite to jurisdiction under s 84 and s 340. Moreover, the applicant was dismissed for reasons of genuine redundancy and at no time in over two months, did she contest the validity of her redundancy.

[22] Mr McArdle maintained that the respondent has been very fair to the applicant in that it had:

(a)	delayed her redundancy to ensure her eligibility for the Paid Parental Leave Scheme.
(b)	paid her six weeks redundancy pay, when it was not legally obliged to (actually four weeks, after taking account of two weeks notice).

[23] In oral submissions, Mr McArdle accepted that if someone was hospitalised or recuperating for 21 days after dismissal, then that was likely to constitute ‘exceptional circumstances’. However, that was not the case here. There was no explanation for the delay in filing in the 12 days before her medical emergency, particularly given she was instructing solicitors and seeking advice from experienced Counsel. Nor did it account for the delay when she left hospital and had resumed communication with her solicitors. Mr Burge’s statement did no more than outline the sequence of events. It did not address the reasons for the application not being lodged within time; See: Manning v The Star Pty Limited T/A The Star [2013] FWC 57 (‘Manning v The Star’).

[24] Mr McArdle emphasised that the applicant was not dismissed because of her pregnancy or her family responsibilities, but because of a genuine need for the employer to restructure its business. Accordingly, the merits of her case were not great.

For the applicant

[25] Mr Latham, of Counsel, submitted that two questions arose in this case; firstly, whether the application is, in fact, out of time, and secondly, whether an extension of time for filing the application should be granted. Mr Latham relied on the authorities of Thickbroom v Newcastle Wallsend Coal Company Pty Ltd (1998) 83 IR 193 (‘Thickbroom’) and Morton Sundour Fabrics Limited v Shaw (1967) 2 ITR 84 (‘Morton Sundour Fabrics’) that the date of termination must be clear or be able to be ascertained. This is not the case here, because:

(a)	the applicant was told on 22 February that her termination was to be at the end of her maternity leave, i.e. 15 June 2013;
(b)	there are two dates in the letter - 26 and 29 April - making the letter invalid because it was not specific;
(c)	it was unclear whether notice of termination began on either of those days or whether termination occurred on either day; and
(d)	the applicant received her final entitlements on 2 May, inferring that this was the day her employment ended. If this was so, her employment would have remained on foot and the application would be in time.

[26] Mr Latham then dealt with the principles discussed in Nulty v Blue Star as to what constituted ‘exceptional circumstances’. Cirucmstances would not be exceptional if they were regularly, routinely or normally encountered and there may be more than one circumstance or a combination of circumstances making them ‘exceptional’. Mr Latham addressed each of the elements in s 366(2) as follows:

(a)	the reason for the delay; being the giving birth by the applicant which is clearly exceptional;
(b)	any action taken by the person; the applicant has clearly taken action to dispute the dismissal;
(c)	prejudice to the employer (including prejudice caused by the delay); given the very short delay, the prejudice to the employer is minimal;
(d)	the merits of the application; It would be sufficient for the applicant to establish that the substantive application was not without merit. In circumstances where the allegations are contested and there is limited evidence as to the conduct, it is right not to undertake a full hearing of evidence as to the merit of the application: Robin v Interstate Transport Pty Ltd [2011] 211 IR 347.

[27] In oral submissions, Mr Latham cited my decision in Beasley v Australian National University t/as ANU[2010] FWA 7308 (‘Beasley’) and Morton Sundour Fabrics to reinforce his submission that the date of termination must be clear, unambiguous and not subject to conditions. Mr Latham said that the two dates of 26 April and 29 April were important, because if the former is the date of termination, the application was filed ‘out of time’, but if it was the later, the application was filed within time. The issue is further clouded by an earlier letter of 22 February identifying that ‘Your employment will be terminated after the maternity leave.’

[28] Mr Latham also noted that the applicant had the option of receiving the redundancy pay of six weeks as a lump sum or spread over six weeks as if she had been working. Mr Latham suggested there could be six dates of termination:

● 26 April;
● 29 April;
● Unspecified Notice began on 29 April;
● 2 May notice of entitlements;
● 3 weeks notice from 2 May; or
● 6 weeks after 2 May.

All but the first date would mean the application was within time.

[29] As to ‘exceptional circumstances’, Mr Latham stressed that this was not just a case of having a baby. Rather, the applicant had undergone a very serious medical emergency. On any view, this would constitute ‘exceptional circumstances’. Mr Latham observed that the respondent was on notice, through the applicant’s solicitors, that she was disputing her dismissal. On the respondent’s best case, the delay was only one day.

[30] As to merits, Mr Latham submitted that the Commission should consider this issue by applying a slightly different test - is the application without merit? If the applicant could prove that her pregnancy was at least one of the reasons for her redundancy, then she would win her case. Furthermore, the onus is on the respondent to disprove her allegation.

[31] In reply, Mr McArdle said that there was no room for argument that the applicant was not required to work on Monday 29 April and that 26 April was her last day of employment. It did not say ‘we are thinking about it.’ Moreover, she clearly understood her last day was 26 April 2013, because she went to her solicitors on 29 April. The wording of the letter positively ascertained that her last day was 26 April, as did subsequent documents she recived and did not query. Unlike Thickbroom, there is simply no potential for two meanings to the letter.

[32] Mr McArdle said there was simply no evidence, at all, that the applicant was, or may have been terminated because she was pregnant.

CONSIDERATION

The date of dismissal

[33] In my opinion, there can be no doubt that the termination of the applicant’s employment was 26 April 2013. I am fortified to this conclusion by the following uncontested evidence:

(a)	the applicant was informed in a meeting on 26 April and in a letter of the same day that her employment was to end that day. The reference to ’29 April’ is no more than reinforcing the fact that her services were no longer required on, and from the next working day - 29 April 2013;
(b)	at no time between 26 April and 20 May did the applicant ever dispute that 29 April was the date of her dismissal;
(c)	the applicant did not return to work, or attempt to work, after 26 April 2013;
(d)	there was no evidence the applicant contacted the respondent to either dispute the date of dismissal, or to seek a return to work;
(e)	the applicant returned her work keys on 30 April;
(f)	all of the documents subsequently received by the applicant (termination payments, letter and separation certificate) make it abundantly clear that she was dismissed on and paid up to 26 April 2013. There was no evidence the applicant challenged the dates in these documents;
(g)	the applicant instructed her solicitors that she had been ‘purportedly terminated’ on Friday 26 April 2013; and
(h)	the applicant met her solicitor on 29 April and Counsel on 6 May. This was hardly consistent with any view she may have had that she had not been dismissed.

[34] In my assessment, the applicant knew and understood, at all relevant times, that she had been dismissed on 26 April 2013. The actions she took or did not take were entirely consistent with this understanding. In my view, Mr Latham’s reliance on Morton Sundour Fabrics and Thickbroom do not assist the applicant’s case. The date was specified and was ‘positively ascertainable’. There was nothing uncertain about the date of 26 April 2013 as being the date the redundancy would take effect. There was no potential for two meanings in the letter of 26 April 2013.

[35] Nevertheless, Mr Latham constructed a number of other novel scenarios, which raised issues as to whether the date of dismissal was so unclear or indeterminate, that the original letter of dismissal was invalid. I have already dealt with the date of 29 April 2013 as being the next working day the applicant’s services were no longer required. The submission that the letter was therefore unclear and invalid is rejected.

[36] Another submission was that the first letter of 22 February 2013, indicating the applicant would be made redundant after the expiry of her maternity leave, meant she was still employed as at June 2013. The inherent problem with this proposition is that it post dates the date of filing her s 365 application (20 May 2013). Jurisdiction under s 365 is predicated on a factual finding that a dismissal has taken effect. The plain language of s 365(1) and the heading of the Part (Subdivision A - Contraventions involving dismissal) make it absolutely clear that a dismissal must have occurred for a valid application under s 365 to be made. Axiomatically, an application alleging a contravention involving dismissal cannot be validly made, where the person has not yet been been dismissed. The application under s 365 would therefore be ultra vires and I would be required, pursuant to s 587(1) of the Act, to dismiss it. In this respect, I refer to what I said in Beasley at para [15]:

‘[15] In my view, the interpretation of the provisions in s 365 and s 366 of the Act, for the purposes of this application, is relatively straightforward. I cannot see how it is possible, given the principles of statutory construction earlier referred to and applying the ordinary English meaning of the words ‘has been dismissed’, to construe the words as having a prospective operation. The words ‘has been’ are in the past tense and can only mean that an event has already occurred or taken place, not that it may, is likely to or will take place. In the present context, the event is the actual dismissal of the employee, not the giving of the notice of dismissal, whether it be six months, three months, one week or in the case of summary dismissal, no notice at all.’

[37] It was further submitted that the date the final termination payments were paid (2 May 2013) could be inferred to be the actual date of dismissal. Such a submission is not only wrong in law, but is contrary to relevant authority and flies in the face of plain commonsense.

[38] Firstly, it is common employment practice that final termination payments are paid to a dismissed employee after the actual date of dismissal. Indeed, the Commission is often called upon to deal with side disputes in unfair dismissal matters, long after a dismissal has occurred, as to what a person’s final termination payments should have been. Usually for practical purposes, the employer’s next pay run is the appropriate point for final payments to be made. It is silly to suggest that final payments made weeks or months after a dismissal has taken effect, invalidates that dismissal, because it was said to be uncertain or unclear.

[39] Secondly, the submission is in direct contradiction to the plain, ordinary language used in the letter of 26 April 2013 and to the applicant’s own understanding of what occurred on 26 April 2013. Mr Latham’s reliance on Beasley is misconceived. The facts and circumstances of Mr Beasley’s ongoing employment were according to very specific terms of his Enterprise Agreement. Furthermore, the employer in that case had not dismissed Mr Beasley, or taken any final steps to terminate his employment. His entitlements continued to accrue. As was said at para [16]:

‘The act of dismissal constitutes the severance of the employment relationship. Given that the applicant continues to be employed by the respondent (notwithstanding he is not at work) and presumably continues to accrue certain rights as a result of that employment, it cannot be said that the employment relationship has been severed or has been brought to an end at the employer’s initiative. All that has occurred, in the legal sense, is the giving of notice of termination according to the express terms of the industrial instrument covering both parties. The notions of ‘notice’ and ‘dismissal’ are entirely different legal and industrial concepts.’

[40] Thirdly, it cannot seriously be put that a payment made by an employer, in lieu of notice, still means the employment remains on foot until the notice period expires. Such a proposition is nonsense and cannot withstand scrutiny. I refer to what Wilcox CJ said in Siagian v Sanel Pty Ltd (1994) 122 ALR 333 at page 355:

‘It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase “payment in lieu of notice”; it accords with common sense. An employer who wishes to terminate an employee’s services, and is prepared to pay out a period of notice without requiring the employee to work, will surely wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made; and there is the disadvantage that the employer will be burdened with employment related costs, such as workers’ compensation insurance, payroll tax, liability for leave payments etc. The employer also incurs the risk that some new burden will be imposed in respect of the employment during the period.’

Of course, the legal position is entirely different if the employee works out the notice and is effectively terminated at the end of the notice period.

[41] In addition, I would wish to emphasise that the common practice of employers paying employees in lieu of notice is expressly recognised by the statute. s 117(2) deals with the circumstances which must apply if the employer is seeking to terminate an employee’s employment. It reads as follows:

‘117 Requirement for notice of termination or payment in lieu

...

Amount of notice or payment in lieu of notice

(2) The employer must not terminate the employee’s employment unless:

(a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or

(b) the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.’

Clearly, then, the legislature intended that an employer may terminate an employee’s employment if the relevant notice is either worked or paid out. One cannot construe these provisions as meaning the termination is invalid, where the employer has met its obligations under s 117(2) of the Act. The Commission finds that the date the applicant’s dismissal took effect was 26 April 2013. In the result, her s 365 application is three days ‘out of time’, according to the provisions of s 366(1) of the Act.

Relevant statutory provisions and authorities

[42] By virtue of the passage of the Fair Work Amendment Act 2012, the time limit for filing an application under s 365 of the Act was reduced from 60 days to 21 days for dismissals which took effect after 1 January 2013. Otherwise, the provisions of s 366 of the Act remain unaltered. The section is expressed as follows:

‘366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(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.’

[43] Both parties relied on Nulty v Blue Star, a decision of the Full Bench of Fair Work Australia (‘FWA’) (as it then was), which considered the meaning of ‘exceptional circumstances under s 366(2) of the Act. I note that the provisions are very similar to s 394(3) of the Act, which deals with unfair dismissal applications lodged ‘out of time’, (except in s 394(2)(b) there is reference to when the employee first became aware of the dismissal taking effect). In Nulty v Blue Star, 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.”

[44] I shall deal with each of the elements of s 366(2) seriatum.

Reason for the delay (s 366(2)(a))

[45] The Commission accepts unreservedly that the applicant had experienced a serious medical emergency, which, on any objective analysis, would constitute an ‘exceptional circumstance’ for the relevant purposes of s 366(2) of the Act. However, given the surrounding circumstances, both before and after, her unexpected stay in hospital, that cannot be the end of the matter. The very next working day after her dismissal, the applicant was actively engaged with her solicitor about her workers’ compensation claim and her dismissal. She met with her Counsel on 6 May - two days before her medical emergency. Letters were sent from her solicitor to the respondent on 30 April and 2 May. In other words, the applicant was actively pursuing her claims against the respondent, yet seemingly forgot, ignored or put to one side, the very significant matter of actually filing an application in the Commission. There was no explanation why this was so.

[46] While it is not entirely clear when the applicant left hospital (as there was no evidence from her at all), she was seemingly not so incapacitated or preoccupied to be unable to pursue her claims, as she provided further documents and instructions to Mr Burge on 14 May 2013. It was not for another six days that her application was filed. Again, there is no explanation for the delay during this period of time. I note that there was no medical evidence suggesting the applicant’s incapacity during this period.

[47] Neither party in the proceedings alluded to whether there might have been some element of representative error in this case. That being so, it is not appropriate that I should say anything about it, let alone make specific findings on the matter. Nevertheless, I feel bound to observe that it beggars belief that experienced legal practitioners, actively involved in claims by a dismissed employee, could ignore or forget the very step necessary to get the employee to ‘first base’. Even more so, given the ease and simplicity with which application form F8 can be accessed and filed electronically with the Commission.

[48] In any event, I conclude that events that occurred during the period, at least from 8-13 May, constituted ‘exceptional circumstances’. What remains unanswered is why the application was not filed on any of the other fifteen days before the expiry of the time limit?

[49] Furthermore, I do not accept the argument (although not explicitly advanced here) that the applicant’s legal representatives were awaiting further documentation and instructions before filing the claim. It seems at least that final instructions were given on 14 May after a conference with Counsel on 6 May. That said, any application can be discontinued if further information comes to light which might affect its prospects of success or if some other avenue of litigation is considered more appropriate or advantageous to the dismissed employee.

Any action taken by the person to dispute the dismissal (s 366(2)(b))

[50] There is no doubt the applicant had taken steps to dispute her dismissal by engaging a solicitor the next working day after her dismissal. She continued to agitate the matter through her solicitor over the following few weeks. Ordinarily, this would be a factor in the applicant’s favour. However, as I have just mentioned, it seems inexplicable that with this level of activity, no one took the basic step of lodging the application within 21 days.

Prejudice to the employer(s 366(2)(c))

[51] Aside from the usual prejudice of the costs and time the employer has expended in preparing and defending this claim and the workers’ compensation claim, I do not apprehend there to be any more burdensome prejudice that a defendant to any action would usually encounter in a similar matter. This is a neutral factor in this case.

Merits of the application (s 366(2)(d))

[52] Obviously, a determination of the merits of the application, at such a preliminary stage and without the assistance of any evidentiary foundation, will be problematic. Rather than putting it as an assessment of the merits, Mr Latham put the issue in the negative, i.e., that the Commission would need to find that the applicant’s case had no merit. It followed, he submitted, that such a finding was not open on the materials before the Commission. However, in my view, there is some force to Mr McArdle’s submission that there is simply no evidence that the applicant’s dismissal arose from her pregnancy or pending family responsibilities.

[53] While the applicant may have genuinely believed it to be the case and there was an obvious coincidence in timing, the objective evidence was that in January 2013, when Mr Srianandarajah was considering measures to reduce staffing costs, he had not known that the applicant was pregnant. There was no evidence from the applicant as to when she had told him or anyone else at the Centre of her pregnancy. Furthermore, there was no challenge, let alone contradiction, to Mr Srianandarajah’s evidence that savings measures were necessary for the business to reduce its costs.

[54] In any event, it is somewhat counter-intuitive for a child care centre, employing mostly women, to dismiss an employee due to her pregnancy through an elaborate subterfuge of claiming she was redundant instead. It just does not ‘ring true’. I conclude therefore, that the applicant’s prospects of success are not strong.

Fairness between the person and the person in a like position (s 366(2)(e)

[55] In my judgement, there were three matters which reflect favourably on the respondent and permit a conclusion that she was actually being treated more fairly than another person in a like position:

1.	The respondent put off the applicant’s redundancy from 22 February to 26 April in consideration of her personal circumstances, in particular to ensure she was eligible to benefit from the Federal Government’s Paid Parental Leave Scheme.
2.	Rather than it being a criticism, the respondent offered to stagger her redundancy payments over a six week period to give her some certainty of regular income over the period.
3.	The applicant was paid redundancy when she was otherwise not entitled to it, as the respondent employed less then 15 employees at the relevant time.

[56] Having regard to all the matters I am required to take account in s 366(2) of the Act, I am not persuaded that the applicant has discharged the onus she bears in demonstrating ‘exceptional circumstances’, such as to justify the exercise of my discretion to allow her application under s 365 to be accepted ‘out of time’.

[57] While the delay in this case is not significant, it must be plainly understood that the legislature has deliberately set a high threshold for the exercise of the Commission’s discretion under s 366(2) by use of the words ‘exceptional circumstances’. In the absence of any explanation, let alone a convincing one, as to why her application was not filed in the days before and after her medical emergency, the application to extend time must be doomed.

[58] Accordingly, there is no valid application before the Commission. Pursuant to s 587(1) of the Act, it must be dismissed. An order that effect will accompany the publication of this decision.

DEPUTY PRESIDENT

Appearances:

I Latham of Counsel, with C Burge, Solicitor for the applicant

C McArdle, Solicitor for the respondent.

Hearing details:

2013

Sydney

6, 21 June

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