Tracey Neagle v Pharmacy Guild of Australia, The-Queensland Branch

[2015] FWC 6372

[2015] FWC 6372

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Tracey Neagle
v
Pharmacy Guild of Australia, The-Queensland Branch
(U2015/7657)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 15 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] This decision arises from an application 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 Tracey Neagle and The Pharmacy Guild of Australia, Queensland Branch (the Guild) ended on 1 February 2013. Ms Neagle lodged her application at the Fair Work Commission on 18 May 2015. Ms Neagle’s application was lodged over two years and three months outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Ms Neagle. I wrote to her on the 25 May 2015 outlining the matters I was required to consider by the Act and asked her to provide a statement addressing these matters within 14 days. Ms Neagle provided a statement on 8 June 2015.

[4] Ms Neagle’s application relied upon an allegation of a sham redundancy instituted by the Guild to terminate her employment. She alleges that she was informed of this information by another worker on 12 April 2015.

[5] I listed this application for hearing on 26 August 2015 in Brisbane. Both parties were given permission to be represented. As well as the Application and the Employer Response, I had before me for consideration a statement provided by the applicant, 1 an affidavit of Ms Neagle dated 25 August 2015,2 an updated statement of Ms Neagle in response to the respondents materials dated 26 August 2015,3a statement of Ms Chown dated 8 June 2015,4and a statement from Ms Ede.5

[6] Ms Neagle, Ms Chown and Ms Ede gave evidence and were cross-examined.

[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 below:

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 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]

[9] I considered the various criteria to which my attention is directed by s.394(3) of the Act.

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

[10] The reasons Ms Neagle provided for her delay in lodgement were:

● that she was unaware that her redundancy was not genuine until Ms Laura Bos provided her with that information, some years later,

● she then sought to consult a lawyer which further delayed her,

● so that she could lodge this claim, she sought to gain relevant documentation and,

● the documentation took longer than expected.

[11] In this case the applicant was already well outside the time limit for lodgement. When she discovered the possibility of a sham redundancy, instead of immediately lodging her application, she took further time to make enquiries and consider the position. Her explanation was that she was already so late that she thought that it would not matter if she was a little bit later. Ms Neagle provides some explanation for her delay but once she considered that her redundancy may not have been genuine she did not act quickly and I was not persuaded that her difficulties were out of the ordinary, unusual or uncommon.

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

[12] Ms Neagle became aware of the end of his relationship with the respondent on 1 February 2013.

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

[13] Ms Neagle disputed her dismissal by lodging this application.

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

[14] I was satisfied that there would be some prejudice to the respondent caused by Ms Neagle’s application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a somewhat negative consideration.

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

[15] I heard and accepted the evidence of Ms Ede. Merit was a negative issue in my consideration of this application.

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

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

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

SENIOR DEPUTY PRESIDENT

Appearances:

S.A Mackie, of counsel, for Ms Neagle.

K.N Garner, of counsel, for the Pharmacy Guild of Australia, Queensland Branch.

Hearing details:

2015.

Brisbane.

26 August.

 1   Exhibit Neagle 1.

 2   Exhibit Neagle 2.

 3   Exhibit Neagle 3.

 4   Exhibit Neagle 4.

 5   Exhibit PGA 2.

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