Suzanne Friend v Coramella Pty Ltd T/A Australiawide Mercantile Agency

[2015] FWC 2110

[2015] FWC 2110

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Suzanne Friend
v
Coramella Pty Ltd T/A Australiawide Mercantile Agency
(U2015/2914)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 26 MARCH 2015

Application for relief from unfair dismissal.

[1] Ms Suzanne Friend resigned her employment with Coramella Pty Ltd (Coramella) on 25 August 2014 and her last day of employment was 5 November 2014. On 9 February 2015, she filed an unfair dismissal application alleging she had been constructively dismissed.

[2] Her unfair dismissal application was not made within 21 days of the date of the dismissal.

[3] At the hearing, I granted permission for Coramella to be represented by a paid agent because I considered it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. Extension of time applications are generally not complex matters, however, in this matter, there was a lot of evidence put forward by the parties which created some complexity.

[4] 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.

[5] 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;

[6] Ms Friend gave evidence that she was not aware that she could make an unfair dismissal application until she discussed the matter with relatives whilst she was on holidays overseas. She returned to Australia on 25 November 2014 and the next day made an online inquiry to the Fair Work Ombudsman. She attempted to call them on 27 November 2014 but due to the 40 minute waiting time, she could not afford to hang on because she was using a mobile phone. She called them again on 28 November 2014 and was referred to the Fair Work Commission. She then spent some time on the Commission’s website but was unable to navigate it or attach the required documents to her inquiry.

[7] Ms Friend said she posted her inquiry to the Commission on 1 December 2014. In that correspondence, she asked that the documents be reviewed and she be advised further. Those documents did not arrive at the Commission. On 3 February 2015, Ms Friend resent the documents to the Commission with a covering letter again seeking a response. On 6 February 2015, Ms Friend was told she needed to make an unfair dismissal application and she did so on 9 February 2015.

[8] Ms Friend accepted that she took no steps between 1 December 2014 and 3 February 2015 to make any inquires to the Commission about her inquiry. She said she did not want to hassle the Commission as she thought they would be busy, particularly during the Christmas/New Year period.

[9] Ms Friend said she did not know about the 21 day time limit to lodge her application until she completed the form.

[10] It is not unusual for employees to be unaware that they can make unfair dismissal applications. Nor is it unusual for employees to be unaware of the time limit for lodging applications. Ms Friend acted promptly on her return from overseas but instead of making an application immediately, she sought advice by making an inquiry to the Commission. Ms Friend’s explanation for her failure to follow up her inquiry is inexplicable. She could have emailed or telephoned the Commission. Further, there is material on the website about making applications, including information about the 21 day time limit. Ms Friend had access to the internet during this time.

[11] Ms Friend is required to explain the whole of the delay. She has not provided a reasonable explanation for her delay from December 2014 to February 2015. This weighs against granting an extension of time.

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

[12] Ms Friend knew of the dismissal when it took effect. She had the full 21 days to lodge her application. This weighs against granting an extension of time.

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

[13] While Ms Friend raised her concerns about the events that lead to her resignation with the Director prior to her resignation, her letter of resignation did not suggest she had been forced to resign. She did not dispute her dismissal after she gave notice of resignation. This weighs against the granting of an extension of time.

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

[14] There was no submission that an extension of time would cause prejudice to the employer. This weighs in favour of granting an extension of time.

(e) the merits of the application;

[15] An employee who resigns his/her employment, particularly in circumstances where the employee agrees to work a longer period of notice than required by law, will face a difficult task in convincing the Commission that she/he was forced to resign. I am not able to make an 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 Friend’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.

[16] No submissions were made on this criterion.

Conclusion

[17] There are no exceptional circumstances warranting an extension of time. This is not a case where the merits and other factors in favour of such a finding outweigh Ms Friend’s lack of a reasonable explanation for her long delay in lodging her application.

DEPUTY PRESIDENT

Appearances:

S Friend on her own behalf.

P Mullally for the Respondent.

Hearing details:

2015.

Melbourne and Perth by telephone link:

25 March.

 1   [2011] FWAFB 975.

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