REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shweta Sahay
v
Chief Executive, Department of the Premier and Cabinet (Department for Health and Ageing - Central Adelaide Local Health Network)
(U2014/13536)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 4 DECEMBER 2014

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

[1] Dr Sahay 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 the Central Adelaide Local Health Network T/A Royal Adelaide Hospital (the respondent). At a telephone conference convened on 3 December 2014 I advised that I was not satisfied that an extension of the time limit specified in s.366 of the FW Act should be granted and that, accordingly, Dr Sahay’s application would be dismissed. These reasons for decision set out the basis for my conclusion.

[2] I have amended the application pursuant to s.586 of the FW Act so as to specify the respondent asChief Executive, Department of the Premier and Cabinet (Department for Health and Ageing - Central Adelaide Local Health Network).

[3] Dr Sahay’s application was lodged on 31 October 2014. In that application she confirmed that the termination of her employment took effect on 31 January 2014. In her application, Dr Sahay requested that the Fair Work Commission (the FWC) take into account the following information:

“I complained about my unfair dismissal to the CEO of Royal Adelaide Hospital (David Panter) on 28/02/2014 and was met by a representative of HR Department the next week. After lodging my complaint and asking for reinstatement of my contract, I did not get any response from them for more than a month; in spite of a reminder. So I consulted a lawyer and lodged an application in the court against SA Health. After lodging the case my lawyer got a reply from Royal Adelaide Hospital; which did not address the issue of workplace exploitation and breach of contract (which was my main complaint); instead it mentioned that my dismissal was not really a termination (which made no sense as the termination letter I received terminated my job). SA Health asked for extension in court to give a formal reply and later replied that even if I could prove in court that there was a breach of contract; I could not claim compensation as I subsequently took up another job under SA Health in Queen Elizabeth Hospital commencing 03/02/2014. I resigned from the job at Queen Elizabeth Hospital on 19/03/2014 as I did not fulfil the job description that was given to me verbally at the time of accepting the job.

My lawyer advised me that I would need an industrial lawyer to go ahead with my case of breach of contract and workplace exploitation. Since I am unemployed since 19/03/2014 and could not afford to go ahead with the case; I withdrew my case on 02/09/2014. Subsequently I put in a complaint with the Office of Public Employment and Review, but was told that this is not within their jurisdiction. So I am finally applying to fair work commission even though the time duration is beyond 21 days of dismissal.” 1

[4] The Employer’s Response forms (Form F3 and F4) to the application confirmed that Dr Sahay was employed in the Department of Health and Ageing and worked at the Royal Adelaide Hospital and The Queen Elizabeth Hospital within the Central Adelaide Local Health Network and that her employment was pursuant to s.34 of the Health Care Act 2008. She was employed by a delegate of the Chief Executive of the Department for Health and Ageing on behalf of the South Australian Government. The respondent contended that the FWC had no jurisdiction to consider this application as ss. 13 and 14 of the FW Act define national system employees and employers. Section 14(1)(a) defines a Constitutional Corporation as a corporation to which paragraph 51(xx) of the Constitution applies. Additionally, s.30 extends the meaning of a national system employee and employer to employers and employees in a State that is referring State. The respondent advised that South Australia is a referring State for the purposes of the FW Act but that, pursuant to s.6(b) of the Fair Work (Commonwealth Powers) Act 2009 (South Australia), matters relating to public sector employees are excluded from the South Australian referral of power to the Commonwealth. The respondent advised that the Fair Work (Commonwealth Powers) Act 2009 (South Australia) defines a public sector employee as a Chief Executive of an administrative unit or any employee in an administrative unit or other person employed or appointed by a public sector agency. The respondent advised that employees employed on behalf of the Crown under the Health Care Act 2009 are public sector employees in the South Australian public sector and accordingly are covered by the South Australian industrial relations system and are not covered by the provisions of the FW Act.

[5] The respondent sought that the application be dismissed on this basis. Additionally, I note that the respondent objected to an extension of time and to Dr Sahay’s contention that she had been dismissed. In this respect the respondent contended that Dr Sahay had not been dismissed at the initiative of the employer.

[6] On 5 November 2014 my Associate provided advice to the parties to the effect that the extension of time issue would be the subject of a telephone conference on 3 December 2014. Substantial information about the application of the FW Act was provided and Dr Sahay was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue. This advice also stated:

“In terms of the merit of your application, I suggest that you carefully consider whether, if you were a State Australian Government employee, you can pursue this application at all. I suggest you carefully consider the information relating to eligibility to make this application. This is on the Commission’s website (
[7] Dr Sahay provided a witness statement in which she detailed the basis for a request for an extension of time.

[8] The application was the subject of a telephone conference on 3 December 2014. Dr Sahay participated in this conference and the respondent was represented by Ms Wolf, a Principal Workforce Relations Adviser with SA Health. A sound file record of this conference was kept.

[9] Section 394 states:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[10] Dr Sahay’s application was not lodged within the 21 day time limit. It was lodged some 10 months outside of that 21 day time limit. Notwithstanding what I described as a fundamental concern over the extent to which the Fair Work Commission had any jurisdiction to consider Dr Sahay’s application I have considered each of these factors in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 3. That decision relevantly states:

“[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.”

[11] Dr Sahay has provided a range of reasons for this very substantial delay. In essence however, these go to her decision to endeavour to discuss and challenge what she understood to be the termination of her employment through a number of channels before making this application. Dr Sahay acknowledges that as of March 2013 she was aware of the 21 day time limit. Her decision to pursue other avenues relative to her employment arrangements before lodging this application cannot represent an exceptional circumstance. It does not reflect any form of acceptable reason for the delay.

[12] Dr Sahay agrees that she became aware of the conclusion of her employment before that took effect. This simply exacerbates the absence of any acceptable reason for the delay.

[13] Dr Sahay has explained a number of actions she took to dispute what she saw as the termination of her employment. I have taken those actions into account in considering her circumstances.

[14] I have concluded that the very long delay in lodging this application would prejudice the employer.

[15] In terms of the merits of the application I do not consider that the FWC has the jurisdiction to further consider Dr Sahay’s application. Section 380 of the FW Act states:

“380 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

Note: See also Division 2 of Part 6-4A (TCF contract outworkers taken to be employees in certain circumstances).”

[16] Dr Sahay was a South Australian public sector employee. She agrees that she was an employee of the Royal Adelaide Hospital. Her advice to me indicated some degree of confusion on her part about the distinction between an employer and someone to whom she reported. As a South Australian public sector employee she was not engaged by a national system employer in that the Fair Work (Commonwealth Powers) Act 2009 (South Australia) does not extend to public sector employees. On her own application, Dr Sahay was clearly neither a national system employee nor was she employed by a national system employer. Accordingly, I am not satisfied that the unfair dismissal provisions in Part 3-2 of the FW Act have application to her circumstances. Dr Sahay’s employment is subject to the provisions of the South Australian industrial relations system and there is simply no jurisdiction available to the FWC to further consider the application. Accordingly, any consideration of the factors specified in s.394(3) must be effectively overshadowed by the absence of any jurisdiction to further consider the application. In straightforward terms, the merits of the application cannot be further considered by the FWC and consequently any extension of time would be necessarily futile.

[17] Considerations of fairness between Dr Sahay and persons in like situations strongly mitigate against any extension of time.

[18] Consequently, I am satisfied that no extension of time should be granted and the application will be dismissed accordingly. An Order (PR558585) to this effect will be issued.

Appearances (By telephone):

Dr Sahay on her own behalf.

V Wolf representing Chief Executive, Department of the Premier and Cabinet (Department for Health and Ageing - Central Adelaide Local Health Network).

Hearing (Conference) details:

2014.

Adelaide:

December 3.

1 Form F2, para 1.4

2 FWC correspondence to applicant dated 5 November 2014, para 4

3 [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

Shweta Sahay v Chief Executive, Department of the Premier and Cabinet (Department for Health and Ageing Central Adelaide Local Health Network)

[2014] FWC 8737

4 DECEMBER 2014

REASONS FOR DECISION