Sharon McNeill v Polevine Pty Ltd T/A Permacast

[2015] FWC 2830

[2015] FWC 2830

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sharon McNeill
v
Polevine Pty Ltd T/A Permacast
(U2015/3492)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 APRIL 2015

Application for relief from unfair dismissal.

[1] Ms Sharon McNeill alleged that the termination of her employment by Polevine Pty Ltd (Polevine) was unfair.

[2] In her application, Ms McNeill said that she was told by the General Manager on 3 February 2015 that her employment had been terminated. However, she said she did not receive written confirmation of the termination until Friday 6 February 2015.

[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] As Ms McNeill was dismissed on 3 February 2015, she had until 24 February 2015 to lodge her application. Ms McNeill thought that as she did not receive written confirmation of her dismissal until 6 February 2015, she had until 27 February 2015 to lodge her application.

[6] On 3 February 2015, Ms McNeill telephoned the help line and asked for a Form F2 which is an unfair dismissal application form. She was told that further information was available on the website and a link was provided. A copy of the form was sent to her that day.

[7] Ms McNeill then used the Commission’s electronic lodgment system on 4 February 2015 when she paid a filing fee and lodged some documents. Ms McNeill attached a letter sent by Polevine on 30 January 2015 about possible termination of employment and her reply to that letter. Ms McNeill was sent a return email that advised her that her application was not filed until she was advised that it had been accepted. On the same day, she was advised by the Commission that no application form had been received.

[8] On 8 February 2015, Ms McNeill asked for a form to be sent so she could complete it right away. A form was sent on 9 February 2015.

[9] On 11 February and 18 February 2015, the Commission staff sent Ms McNeill emails advising her that she had not filed her application. On 18 February 2015, Ms McNeill responded advising that she was finding it hard to get her supporting documentation and asking what her deadline was. She was told that she had 21 days from the date of her dismissal and that she did not require copies of documents, only the Form F2 at this time. At this time, she was still within time to file her application. Ms McNeill did not then file her application until 27 February 2015.

[10] When asked why she did not lodge her application by 24 February 2015, she said it was because she thought the relevant date was the date she received written advice that her employment was terminated. Also, she submitted that she was hoping to receive a reference and she delayed filing her application in the hope that this would be received.

[11] Ms McNeill submitted that she was waiting for documents and but she did not receive them. She also submitted that as some documents had been stolen from her car, she needed to get them sent again.

[12] Ms McNeill said she was struggling to understand why her employment was terminated.

[13] I do not consider that Ms McNeill had a reasonable explanation for the delay in lodging her unfair dismissal application. She knew her employment had been terminated on 3 February 2015. Ms McNeill contacted the Commission the same day and as a result of that discussion, she was sent an unfair dismissal application. Ms McNeill paid a fee on 4 February 2015. The Commission reminded her on two occasions that she needed to lodge her application. On another occasion, she was told by the Commission of the 21 day time limit and she was told she did not need to file additional documents.

[14] Even if I accepted that Ms McNeill thought she was entitled to count the days from the date she received the termination letter, her ignorance of when the 21 days run out is not unusual.

[15] While I can understand that Ms McNeill thought that she was unlikely to get a reference if she lodged her unfair dismissal application form, the decision to delay lodging her application had consequences. I also can understand that Ms McNeill was upset at losing her job. However, that is not unusual.

[16] I do not consider that Ms McNeill had a reasonable explanation for the delay in lodging her application. This weighs against extending time.

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

[17] Ms McNeill knew that she had been dismissed on 3 February 2015. She had the full 21 days to lodge her application. This weighs against extending time.

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

[18] Ms McNeill said she spoke to the General Manager after her dismissal and asked for a letter from him and asked about her formal complaint. She also said that she tried to get evidence that her dismissal was unfair. Mr Michael Southwell, the Director, said he was unaware of any action taken by Ms McNeill to dispute the dismissal.

[19] The actions taken by Ms McNeill neither weigh in favour or against extending time.

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

[20] Mr Southwell submitted that Polevine would suffer prejudice as it would be required to defend the claim and it should be able to get on with its business. The prejudice suffered by Polevine does not weigh against extending time.

(e) the merits of the application;

[21] Ms McNeill submitted that her dismissal was unfair. She submitted that the issues raised with her were not valid and that she was not warned that her performance was unsatisfactory. Polevine was not a small business. Mr Southwell submitted that Ms McNeill was guilty of insubordination and failure to perform her work. He said her relationship with the General Manager had broken down.

[22] 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 McNeill’s claim has no prospects of success, this weighs in favour of granting an extension of time.

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

[23] No submissions were made on this criterion.

Conclusion

[24] Ms McNeill submitted that there were exceptional circumstances because the dismissal changed her life dramatically and has caused her stress. She feels she has wasted two years of her life as she has lost her job and has no reference. She submitted that she was representing herself.

[25] I do not doubt Ms McNeill has been negatively impacted by losing her job. However, that is not exceptional. In fact, it is a very common reaction. I am unable in this matter to find that there are exceptional circumstances. This is not a case where the merits of the case outweigh the lack of a reasonable explanation for the delay in lodging her application. Accordingly, Ms McNeill’s application is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms S McNeill on her own behalf.

Mr M Southwell on behalf of the Respondent.

Hearing details:

2015.

Melbourne and Perth via telephone:

22 and 23 April.

 1   [2011] FWAFB 975.

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