Tamara Waltke v Maylands Dental Trust T/A Adelaide One Dental Pty Ltd (Maylands Dental)

[2019] FWC 279

[2019] FWC 279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Tamara Waltke
v
Maylands Dental Trust T/A Adelaide One Dental Pty Ltd (Maylands Dental)
(C2018/7095)

COMMISSIONER PLATT ADELAIDE, 17 JANUARY 2019

Application to deal with contraventions involving dismissal – extension of time – application granted.

Summary

[1] Ms Tamara Waltke has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that her employment with Maylands Dental Trust T/A Adelaide One Dental Pty Ltd (Maylands Dental) ceased on 20 November 2018 in contravention of the general protections provisions of the Act.

[2] This application was lodged on 14 December 2018.

[3] The application did not identify that it was made beyond the 21 days from the date of dismissal.

[4] On 19 December 2018 the Commission corresponded with the parties and advised that it appeared that the application had not been lodged within the 21 day statutory time limit, and sought consent for the conduct of a Conciliation conference. Consent was not received and the matter was allocated to my Chambers.

[5] On 8 January 2019, the parties were sent a notice that the extension of time issue was listed for a Hearing via telephone at 2:00pm on 17 January 2019 and provided information about the matters that would be considered by the Commission. The Applicant was advised that her material in support of her extension of time application was to be provided 4:00pm on 14 January 2019 and any submission by the Respondent by 4:00pm on 16 January 2019.

[6] The Applicant did not file her material on time, only submitting her material after a Non-compliance Directions Hearing was listed. It appeared that the Applicant did not understand the Directions.

[7] A Hearing was conducted by telephone on 17 January 2019. The Applicant was self-represented and Ms Lorraine Thompson represented the Respondent. The Hearing was recorded.

Submissions

[8] Ms Waltke provided written and oral submissions which are relevantly summarised as follows:

•  She was sent a text message by her employer on 19 November 2018 and advised that an email had been sent to her. The email advised that her employment had been terminated with effect from 20 November 2018.

•  Ms Waltke rang the employer and disputed the decision on that day.

•  On 9 December 2018 Ms Waltke tried to email her Form F8 to the Commission, but the Commission’s lodgement system rejected the application as the file size was too large. An error message was generated but was sent to Ms Waltke’s spam file.

•  Ms Waltke became aware that her email failed on 13 December 2018 and she contacted the Commission and filed her application on 14 December 2018.

•  Ms Waltke contends she had the benefit of pre-determined part-time hours under her contract of her employment and was dismissed when she refused to agree with her employer’s request to vary them.

[9] Maylands Dental provided a submission that was based on the application being a section 394 unfair dismissal application. The jurisdictional objections raised (Minimum Employment Period and the Small Business Fair Dismissal Code) do not apply to a general protections application.

[10] Ms Waltke’s description of the dismissal process and explanation of the delay was not disputed.

[11] Ms Thompson submitted that the Commission should not extend the time for filing of the application.

Applicable Law

[12] Section 366 of the Act relevantly states:

“Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[13] I have considered the provisions of s.366(2) of the Act 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 every day 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.”

Consideration

[14] I find that Ms Waltke was dismissed on 19 November 2018 and the dismissal took effect on 20 November 2018.

[15] This general protections application by Ms Waltke was made 3 days outside of the 21 day time limit and therefore can only be pursued if this time limit is extended.

[16] Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[17] The reasons for the delay was the belief by Ms Waltke that her application had been lodged in time and that the delivery failure email went to her spam file and was unknown to her. Upon becoming aware of that information Ms Waltke promptly lodged her application. Ms Waltke has explained the delay.

Any action taken by the person to dispute the dismissal

[18] Ms Waltke disputed her termination on the day of the dismissal.

Prejudice to the employer (including prejudice caused by the delay)

[19] There is no submission that the granting of an extension of time represents prejudice to the employer.

The merits of the application

[20] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.

Fairness as between the person and other persons in a similar position

[21] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[22] For the reasons I have set out above, I am satisfied that Ms Waltke’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted.

[23] An Order 2 reflecting this decision will be issued.

[24] At the conclusion of the Hearing I attempted to conciliate the matter. The matter was not able to be resolved and a Certificate to that effect will be issued.

COMMISSIONER

Appearances:

T Waltke the Applicant

L Thompson on behalf of the Respondent.

Hearing details:

2019.

Adelaide.

17 January.

Printed by authority of the Commonwealth Government Printer

<PR703932>

1 [2011] FWAFB 975.

 2   PR703933.