Sirirat Taylor v The Reject Shop Limited T/as the Reject Shop

[2015] FWC 974

[2015] FWC 974

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Sirirat Taylor
v
The Reject Shop Limited T/as The Reject Shop
(U2014/15961)

DEPUTY PRESIDENT SAMS SYDNEY, 13 FEBRUARY 2015

Application for relief from unfair dismissal - constructive dismissal - application lodged 'out of time' - unfitness for work or study for two days - non-English speaking applicant - inability to obtain advice - earlier legal advice - whether 'exceptional circumstances' - no 'exceptional circumstances' - application dismissed.

INTRODUCTION

[1] This decision arises from an application for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394(3) of the Fair Work Act 2009 (the ‘Act’). Ms Sirirat Taylor (the ‘applicant’) claims she was ‘forced to resign’ from her employment with The Reject Shop Limited T/as The Reject Shop (the ‘respondent’) on 21 November 2014. The applicant lodged an application for unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 15 December 2014, in which she claimed she had been constructively dismissed. The Act mandates a 21 day time limit for initiating an application for a remedy from unfair dismissal. Her application was therefore lodged at least 3 days outside the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to both the Form F2 Application for Unfair Dismissal and the Form F3 Employer Response. The Commission wrote to the applicant on 7 January 2015 outlining the matters I am required to consider under s 394(3) of the Act, and asking her to provide a statement addressing these matters within 14 days. The applicant’s representative provided a statement of three pages. Attached to that statement was a medical certificate disclosing that the applicant was unfit for work and/or study from 24 November 2014 until 25 November 2014 inclusive. Having considered this material, I issued an Order refusing an extension of time and dismissed the application on 6 February 2015. These are my reasons for doing so.

RELEVANT STATUTORY PROVISIONS AND PRINCIPLES
[3] The relevant legislative framework, guiding the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘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.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, the Full Bench of the Commission 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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].’

[5] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing of an unfair dismissal application. Put another way, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application ‘out of time’; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia[2014] FWCFB 2288 succinctly described the Commission’s decision making process under 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I now turn to each of the criteria under s 394(3) of the Act.

CONSIDERATION

Reason for the delay (s 394(3)(a))

[6] The applicant advanced two reasons for the delay in filing her unfair dismissal application. The first reason relates generally to the applicant’s mental state, and the second reason concerns the applicant being unaware of unfair dismissal laws. I will address each reason in turn.

[7] The applicant contended that she was suffering from acute anxiety and stress, related to her employment with the respondent. In support of this claim, she provided a medical certificate which certified her unfit for work on both 24 November 2014 and 25 November 2014. Unhelpfully, the medical certificate does not disclose the nature of the applicant’s unfitness, although I have no grounds to disbelieve what the applicant asserted. The applicant further claimed that she was engaged in a GP Mental Health Treatment Plan on 20 November 2014.

[8] While I am sympathetic to the applicant’s mental condition, I am not satisfied that this reason constitutes an ‘exceptional circumstance’ within the meaning of s 394(3) of the Act. The medical certificate discloses that the applicant was not fit for work or study on 2 days only. It does not indicate that she was otherwise unable to function normally or was unable to complete simple daily tasks. I note that the relevant application form, available from the Commission, is simple and straightforward and extensive guidance is available on the Commission’s website as to the lodgement of such an application, including by lodgement over the phone. On the material available to the Commission, I am unable to conclude that the applicant was incapable of filing an unfair dismissal application either on the days she was certified unfit for work or study or subsequently. Perhaps more importantly, there was no medical evidence, general or otherwise, as to why the applicant could not function normally in the remaining 17 days of the statutory time limit, when presumably she was fit for work or study.

[9] Secondly, it was submitted that the applicant was not aware of her rights to make an unfair dismissal application until seeking legal advice on 15 December 2014. In this respect, it was stated:

‘She only became aware of her rights with respect to unfair dismissal on this day. After it was explained to her that she had rights under the Fair Work Act. Her application to the Commission was made on that same day.’

[10] In addition, it was claimed that the applicant was from a non-English speaking background, was educated in Thailand and Thai was her native language.

[11] I do not accept the proposition that the applicant was unaware of her legal rights as constituting an ‘exceptional circumstance’ within the meaning of the Act. An applicant’s lack of knowledge of their legal rights does not of itself, constitute an ‘exceptional circumstance’; See Nulty at para [14]. It should be emphasised that the 21 day time period for lodging an unfair dismissal application starts from the date of dismissal, not from the date on which the applicant becomes aware of their legal rights. Furthermore, legal assistance or representation is not required to file an application for a remedy for unfair dismissal and, indeed, parties frequently represent themselves in such matters before the Commission. It is curious that the applicant said she had sought legal advice prior to her resignation about issues she was having in the workplace, yet did not seek any further legal advice from the date she said she was forced to resign until 15 December 2014.

[12] In my view, the applicant’s language barrier is not a factor that warrants special consideration. The Commission’s website provides a link that allows for the website to be translated into over eighty different languages - Thai being one of those languages. Furthermore, the applicant had the opportunity to nominate a representative (legal or otherwise) to assist her in the preparation of her unfair dismissal application. The Commission provides a number of means by which an unfair dismissal application can be lodged. These various methods mitigate language barriers experienced by applicants from non-English speaking backgrounds. In addition to electronic lodgement, an unfair dismissal application may be filed in person at the Commission’s registry or by post. An unfair dismissal application can also be made by phone; See: Fair Work Commission Rules 2013 Rule 9.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[13] The applicant resigned from her employment on 21 November 2014. The applicant identifies that she was aware of her termination of employment on this date. This is a neutral factor in this case.

Any action taken by the person to dispute the dismissal (s 394(3)(c))

[14] This criterion was not addressed in the letter outlining the applicant’s reasons for delay. It was submitted that the applicant only became aware of her legal rights on the 15 December 2014, the same day she lodged her unfair dismissal application. There is no evidence to indicate that the applicant took any action, save from the filing of this unfair dismissal claim, to dispute her alleged constructive dismissal. This factor must weigh against the extension of time being granted, particularly given the applicant had sought legal advice prior to her resignation.

Prejudice to the employer (s 394(3)(d))

[15] It was submitted by the applicant that, ‘any prejudice caused due to the short delay would be minimal’, in the event that an extension of time was granted. Given that the application was lodged 3 days outside of the statutory time limit, I agree with this submission. I do not consider there is any significant prejudice to the employer, save for the usual prejudice of costs and time expended in defending the claim. This is a neutral factor in this case.

The merits of the application (s 394(3)(e))
[16] It is important to note that a consideration of the merits of an application, at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis. The applicant alleges that her resignation amounted to a constructive dismissal. It was asserted that since November 2013 she has had a series of ongoing and escalating issues with the respondent which resulted in her suffering significant psychological stress and anxiety. These issues included, but were not limited to, the changing of her roster at short notice and her inability to carry out duties for which she was not trained. The applicant alleged that the respondent’s conduct amounted to her being ‘victimised’ and ‘bullied’. A prima facie assessment of this material does not conclusively illustrate that the respondent’s actions constituted a constructive dismissal; that is a termination of employment at the initiative of the employer: See Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200. The alleged events leading up to the applicant’s resignation might simply disclose the exercise of managerial prerogative, rather than the victimisation of the applicant. While I make no conclusive finding on this question, a prima facie assessment of the material filed would seem to suggest that the applicant’s prospects of success are limited, at best.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))
[17] The applicant did not address this criterion. It was said that the applicant resigned from her employment due to significant psychological stress and anxiety. Such a finding would always be assessed on a ‘case by case’ basis. Accordingly, it is unlikely there were other persons in a comparative position to that of the applicant. This is a neutral factor in this case.

CONCLUSION

[18] Having considered all of the matters which the Commission is required to take into account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 6 February 2015.

DEPUTY PRESIDENT

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