Suzanne Gratton v National Trust of Australia (NSW)

[2016] FWC 8518

[2016] FWC 8518

FAIR WORK COMMISSION

DECISION

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

Suzanne Gratton
v
National Trust of Australia (NSW)
(U2016/9524)

SENIOR DEPUTY PRESIDENT DRAKE BRISBANE, 9 DECEMBER 2016

Application for relief from unfair dismissal.

[1] This decision arises from an application by Ms Suzanne Gratton for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Ms Gratton and the respondent ended on 26 May 2016. Ms Gratton lodged her application with the Fair Work Commission (the Commission) on 18 July 2016. Ms Gratton’s application was lodged 31 days outside the statutory time limit.

[3] I wrote to Ms Gratton on 28 July 2016 outlining the matters I was required to consider by the Act and requesting that she respond within 14 days. The Commission subsequently received a response from Ms Gratton on 8 August 2016, which stated in part:

“Attached is an email dated 8 June 2016 sent to [email protected] from Dubbo ITP who have facilitated my application as I have limited access to computers, printers and internet as I recently moved from Dundullimal Homestead where I lived with my husband Tim Gratton for the duration of my employment with the National Trust.

It is my understanding that the terms of making a claim to the Commission was 21 days from when the redundancy was finalised by the employer and that date is 26 May 2016”.

[4] The email referred to in Ms Gratton’s letter is an “Acknowledgment of registration” stating, amongst other things, that:

“[R]egistering does not mean you have lodged an application”.

[5] Further, this email also stated:

“[P]lease note time limits apply for lodging some applications”.

[6] I heard Ms Gratton’s application for an extension of time in Sydney via video-link to Dubbo on 27 October 2016. During the hearing Ms Gratton stated that she lodged an application for unfair dismissal remedy on 19 May 2016 (prior to the effective date of the dismissal). She accepted that there was no acknowledgement of that application having been received by the Commission, or any action taken by the Commission in respect of such an application. Ms Gratton’s accountant lodged a further application for an unfair dismissal remedy on Ms Gratton’s behalf on 18 July 2016, upon Ms Gratton realising that her first application had not been received by the Commission. 1

[7] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out in s.394 of the Act:

394 Application for unfair dismissal remedy
...
(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.

[8] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. The Full Bench stated:

“[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]

[9] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. The factors outlined in s.394(3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[10] As a preliminary matter, I am not satisfied that an application was filed by Ms Gratton on 19 May 2016 or otherwise other than the present application which was filed on 18 June 2016. The Commission has no record of an application having been filed by Ms Gratton on 19 May 2016 and there is no evidence before me of any attempt to file such an application on this date. Further, the email attached to Ms Gratton’s submission of 8 August 2016 makes it clear that no application has been lodged and reminds the recipient that time limits may apply to making applications. Therefore Ms Gratton’s only application is the present application filed on 18 July 2016. For Ms Gratton to proceed with this application an extension of time is required.

[11] I will now consider the various criteria under s.394(3) of the Act.

reason for the delay-s.394(3)(a)

[12] The reasons Ms Gratton provided for her delay in lodgement are:

1. The application of 18 July 2016 was filed after it became apparent to Ms Gratton that there had been no response by the Commission to the application of 19 May 2016 that she thought she had filed;

2. she was shocked about the termination of her employment;

3. she was stressed, unwell and tearful and seeking treatment for those symptoms;

4. she was ignorant of the obligation to file within the statutory time limit. 2

[13] While sympathetic to Ms Gratton’s circumstances, I am not persuaded that her difficulties were out of the ordinary, unusual or uncommon. Ms Gratton had registered as a user but had not successfully lodged an application. Further, if Ms Gratton believes that an application had been made on 19 May 2016 she made no attempt to contact the Commission or otherwise query this lodgement for some time. The first time Ms Gratton took any further action in contact with the Commission was the lodgement of a second application on 18 July 2016, some two months later.

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

[14] It is not disputed that Ms Gratton’s termination was effective on 26 May 2016.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[15] Ms Gratton gave evidence that between 12 April 2016 and mid-May 2016 she commenced her own research into unfair dismissal remedies and spoke to her support person. In mid-May 2016 Ms Gratton also contacted the United Services Union for advice. 3

prejudice to the employer-s.394(3)(d)

[16] I am satisfied that there would be no greater prejudice to the respondent caused by Ms Gratton’s application being listed now than there would have been had it been lodged in time. Prejudice to the respondent is a neutral consideration.

the merits of the application-s.394(3)(e)

[17] Ms Gratton raises a number of matters in respect of her dismissal that would need to be determined at a subsequent hearing should she be granted an extension of time. Merit is a neutral issue in my consideration of this application.

fairness as between Ms Gratton and other persons in a similar position-s.394(3)(f)

[18] There is no issue of fairness in relation to any other person in a similar position.

[19] Having considered all of the matters to which my attention is directed by the Act I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis I dismiss the application. Ms Gratton’s circumstances were not out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

Appearances:

S. Gratton on her own behalf.

A.Weinman for the National Trust of Australia (NSW)

Hearing details:

2016.

Sydney:

27 October.

 1   Transcript, 27 October 2016, PN 98-99

 2   Transcript, 27 October 2016, PN210

 3   Ibid PN92

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