Trembath v Lloyd's Wheel Alignments Pty Ltd
[2016] FWC 2129
•6 April 2016
[2016] FWC 2129
REASONS FOR DECISION
| Fair Work Act 2009 | |
| s.394—Unfair dismissal | |
| Angela Trembath | |
| v | |
| Lloyd’s Wheel Alignments Pty Ltd | |
| (U2016/1057) | |
| SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 6 APRIL 2016 |
| 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 s.394 of the Fair Work Act 2009 (the
Act).
[2] The relationship between Ms Trembath and the respondent ended on 12 February
2016. Ms Trembath lodged her application at the Fair Work Commission (the Commission)
on 9 March 2016. Ms Trembath’s application was lodged 5 days outside the statutory time
limit.
[3] When determining this application I had before me the Application for Unfair
Dismissal lodged by Ms Trembath. Ms Trembath was asked in paragraph 1.4 of her
application for the reason for her delay in lodgement. She stated the following:
“I have only just found out that the owner Ian Lloyd has put on another office person
and that they have been about the time I was terminated. I was given a letter stating
that there was not enough work to keep me on. I started working 3 days then went
down to 2 days then have been working 1 day for the past 4 months before my
dismissal. I also know that he did similar to this to the lady that was before me. I had
not done anything out of line and I had verbal abuse thrown at me not by him but also
his and she would be looking over my shoulder while I worked as she was there due to
medical reasons. I had done everything he asked and then get treated like this. It’s not
fair. He had talked about maybe lowering my hourly rate from $28 but I didn’t hear
anything else about it. Was not given the option to agree or not.”
[4] This paragraph did not provide an explanation for delay. I wrote to Ms Trembath on
14 March 2016 outlining the matters I was required to consider by the Act and asked her to
provide a statement addressing these matters within 14 days. I did not receive a reply from Ms
Trembath. I refused her application for an extension of time and issued an order dismissing
her application on 30 March 2016.
[2016] FWC 2129
[5] The relevant legislative framework for the exercise of the 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.
[6] 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
[2016] FWC 2129were 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
[2016] FWC 2129
situation which is out of the ordinary course, unusual, special or uncommon.”
[Endnotes not reproduced]
[7] 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. All of
the factors outlined in s.394(3) of the Act must be considered and weighed when deciding
whether or not exceptional circumstances, circumstances sufficient to support an exception,
exist.
[8] 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)
[9] Ms Trembath did not provide an explanation for the delay.
whether the person first became aware of the dismissal after it had taken effect-
s.394(3)(b)
[10] Ms Trembath became aware of the end of her relationship with the respondent on 12
February 2016.
any action taken by the person to dispute the dismissal-s.394(3)(c)
[11] Ms Trembath disputed her dismissal by lodging this application.
prejudice to the employer-s.394(3)(d)
[12] I was satisfied that there would be no greater prejudice to the respondent caused by Ms
Trembath’s application being listed now than there would have been had it been lodged in
time. Prejudice to the respondent was a neutral consideration.
the merits of the application-s.394(3)(e)
[13] Merit was a neutral issue in my consideration of this application.
fairness as between Ms Trembath and other persons in a similar position-s.394(3)(f)
[14] There was no issue of fairness in relation to any other person in a similar position.
[15] Having considered all of the matters to which my attention is directed by the Act I was
not satisfied that there were any exceptional circumstances which would warrant my granting
an exception to the statutory time limit and on that basis dismissed the application. I was not
aware of any circumstances which were out of the ordinary course, unusual, special or
uncommon.
[2016] FWC 2129
SENIOR DEPUTY PRESIDENT
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