Sylvia Zacker v Southern Cross Cleaning

[2016] FWC 3740

[2016] FWC 3740

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sylvia Zacker
v
Southern Cross Cleaning
(U2016/5759)

COMMISSIONER PLATT ADELAIDE, 8 JUNE 2016

Application for relief from unfair dismissal – extension of time not granted – application dismissed.

Background

[1] On 29 March 2016, Ms Zacker lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with SCC (SA) Pty Ltd T/A Southern Cross Cleaning (Southern Cross Cleaning).

[2] In her application Ms Zacker contends that she became aware that her employment was terminated on 29 February 2016 (or thereabouts). Ms Zacker’s application did not recognise or address the need for an extension of time to be granted.

[3] On 10 May 2016, my Associate corresponded with both Ms Zacker and Southern Cross Cleaning, and advised them that the extension of time issue would be considered at a telephone conference on Friday 3 June 2016. Substantial information about the extension of time issue was provided to the parties. Ms Zacker was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 23 May 2016.

[4] No material was received from Ms Zacker despite numerous to follow the matter up by my associate to the email address and contact telephone number provided in the application.

[5] Due to technical difficulties, the telephone hearing on 3 June 2016 was adjourned to 8 June 2016. Notices of the delayed hearing were provided to each party in the usual manner and additionally by registered post to Ms Zacker.

[6] Southern Cross Cleaning advised in its F3 Employer Response that Mr Zacker was advised of the termination of her employment by letter dated 25 February 2016 and that her entitlements were paid out on 3 March 2016.

[7] The Commission conducted a conference by telephone at 2.00 pm on 8 June 2016. Ms Zacker did not attend. My Associate unsuccessfully sought to contact Ms Zacker by telephone. The conference proceeded at about 2.10pm, Ms Judith Stephanos appeared on behalf of Southern Cross Cleaning. This conference was recorded.

[8] At this hearing I determined that in the absence of “exceptional circumstances” the application would be dismissed. My detailed reasons for that decision follow.

[9] Regrettably Ms Zacker has not provided any information as to why the time to lodge her application should be extended.

[10] Southern Cross Cleaning provided the following information relevant to the extension of time issue:

• the employment was terminated by letter dated 25 February 2016. The letter was sent by post;



• Ms Zacker’s entitlements were paid to her on 3 March 2015;



• the allegations that the dismissal was unfair were contested;



• Southern Cross Cleaning had not been contacted by Ms Zacker after her dismissal. The first time Southern Cross Cleaning were aware of any dispute was when the Commission wrote to them on 10 May 2016 in respect of the extension of time issue;



• there was no prejudice suffered as a result of the delay; and



• there were no other employees in a similar position.

[11] I find that the date of termination was 25 February 2015 and that the application was lodged beyond the time permitted by the Act.

Discretion to extend time

[12] Section 394(3) of the Act states:

“(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.”

[13] I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ which 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.”

[14] Ms Zacker has not sought an extension of time, nor provided any explanation as to the reasons for the delay in lodging her application.

[15] There is no evidence that Ms Zacker took any other action to challenge the termination of her employment other than the lodging of this application on 29 March 2016.

[16] I find that the duration of the delay does not favour a finding that an extension of time of this magnitude would prejudice Southern Cross Cleaning.

[17] In terms of the merits of the application, information which allows a definitive conclusion in this respect is not before me and I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

[18] Considerations of fairness, relative to other persons in similar positions is not relevant in this matter.

[19] I have concluded that the material before me does not establish that Ms Zacker’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order PR581409 giving effect to this decision will be issued.

COMMISSIONER

Appearances:

J Stephanos for the respondent.

Hearing details:

2016.

Adelaide:

June 8.

1 [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

<Price code C, PR581408>