Tracy Lui v Sally's Kitchen
[2018] FWC 4093
•10 JULY 2018
| [2018] FWC 4093 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Tracy Lui
v
Sally’s Kitchen
(C2018/723)
COMMISSIONER PLATT | ADELAIDE, 10 JULY 2018 |
Application to deal with contraventions involving dismissal – extension of time – application dismissed.
Summary
[1] Ms Tracy Lui has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that her employment was terminated by Sally’s Kitchen on 17 January 2018 in contravention of the general protections provisions of the Act.
[2] This application was lodged on 12 February 2018.
[3] The application identified that it was made beyond the 21 days from the date of dismissal (although she selected both “yes” and “no” when completing the form) and provided the following explanation:
• The form was initially sent on the 24 January 2018; and
• That she received an email with the paperwork again so assumed that she had to resend the form.
[4] Sally’s Kitchen filed a form F8A Employer Response on 20 March 2018 which indicated that the dismissal occurred on 17 January 2018 and raised a jurisdictional objection on the basis that the application was lodged out of time. This decision only deals with the extension of time issue.
[5] On 2 July 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a hearing by telephone conference on 9 July 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties who were directed to provide an outline of argument of their respective positions.
Submissions
[6] Ms Lui did not provide any written submissions.
[7] Sally’s Kitchen provided written submissions which are relevantly summarised as follows:
• There was no valid reason given for the delay in lodging the application;
• No submissions have been made by Ms Lui as to why the extension of time is warranted;
• The merits of the application do not warrant an extension of time;
• Nothing suggests that there are exceptional circumstances present which would warrant an extension;
• Sally’s Kitchen has suffered prejudice due to the actions of Ms Lui in that it has incurred ongoing legal costs and their time has been wasted; and
• Ms Lui’s position was made redundant and she was paid all of her entitlements – therefore the claim is “doomed to fail” and Sally’s Kitchen will be prejudiced if they have to continue to incur legal costs dealing with an “unmeritorious claim”.
[8] A hearing was conducted by way of telephone hearing on 9 July 2018. A sound file record of the hearing was kept. Ms Lui was represented by herself and Mr Michael Holmes of Terrill & Holmes Lawyers, with permission, represented Sally’s Kitchen.
[9] The Applicant provided the following information at the hearing:
• She initially sent the application by email using a friend’s computer to the Department of Foreign Affairs (DFAT) on 24 January 2018;
• On or about 12 February 2018, Ms Lui contacted the Commission Help Line and was advised that the Commission had no knowledge of her application. The Commission’s Help Line file notes state that the Applicant advised that the Form F8 had been incorrectly emailed to DFAT;
• Ms Lui lodged this application on the same day;
• On 13 February 2018, the Commission emailed Ms Lui requesting additional material as she had not provided payment or completed the waiver form;
• Ms Lui contends that the way her employer treated her and the fact that she was made redundant was not fair as she was a good worker and she had been made redundant when others remained employed on a full-time basis;
• The dismissal had significantly impacted her health and financial position; and
• That she was unable to articulate how her dismissal was a breach of the general protection provisions.
[10] The hearing was adjourned for an hour to allow Ms Lui an opportunity to submit any documentation (such as a copy of the email sent on 24 January 2018 to DFAT) in support of her application for an extension. No such material was provided, although during the adjournment Ms Lui forwarded an email sent from the Commission on 13 February 2018 (referred to above) and a Letter of Recommendation from a staff member of the Respondent.
[11] The Respondent reiterated its submissions and contended the claim had no merit and no exceptional circumstances existed.
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] The general protections application by Ms Lui was made 5 days outside of the 21 day time limit and, therefore, can only be pursued if this time limit is extended.
[15] 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
[16] Ignorance of the timeframe does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time: Rose v BMD Constructions Pty Ltd.2
[17] It is common for employees to suffer shock and trauma as a result of dismissal from employment: Rose v BMD Constructions Pty Ltd.3
[18] If Ms Lui has failed to provide a credible explanation for any part of the delay, that would tend to weigh against a finding of exceptional circumstances: Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters. 4
[19] There is nothing to corroborate the Applicant’s contention that she (via a friend) lodged her claim within time with DFAT. This is in spite of the directions to file material and the provision of a short adjournment at the hearing to produce the material. The only corroboration of this conduct is a report given to the Commission’s Help Line by the Applicant.
[20] I am not persuaded that Ms Lui has explained the delay.
Any action taken by the person to dispute the dismissal
[21] Ms Lui contends that she (via a friend) emailed her application mistakenly to DFAT on 24 January 2018. As detailed above, there is no independent corroboration of this action, despite the use of a Gmail account, which would in the normal course have saved a copy of the sent item. The only evidence in support is a self-serving statement by the Applicant.
Prejudice to the employer (including prejudice caused by the delay)
[22] Sally’s Kitchen submits that the grant of the application for an extension would prejudice them as a result of the costs associated in continuing to defend the claim. The delay is relatively small and prejudice is not determinative in this matter.
The merits of the application
[23] In terms of the merits of the application, my preliminary view is that Ms Lui was made redundant and that there does not appears to be a sound basis for a complaint that Sally’s Kitchen has breached either s.344 or any other general protections provision under the Act. It appears to me that Ms Lui’s key complaint was that the redundancy was not a genuine redundancy within the meaning of s. 389 of the Act. This may give rise to the basis for an application pursuant to s. 394 of the Act, however, that is not the nature of the application before me and I do not have the power to so amend the application.
[24] I have regarded the merits as a factor which weighs against the extension of time.
Fairness as between the person and other persons in a similar position
[25] Consideration of fairness relative to other persons in similar positions is a neutral factor.
Conclusion
[26] For the reasons I have set out above, I am not satisfied that Ms Lui’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order5 reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
T Lui on behalf of the Applicant.
M Holmes of Terrill & Holmes Lawyers on behalf of the Respondent.
Hearing (Conference) details:
2018.
Adelaide:
9 July.
1 [2011] FWAFB 975.
2 [2011] FWA 673.
3 [2011] FWA 673.
4 [2018] FWCFB 901.
5 PR608897.
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