Vanessa Kosmidis v A & J (Qld) Pty Ltd T/A Remax Partners Hervey Bay

[2016] FWC 3593

[2016] FWC 3593

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vanessa Kosmidis
v
A & J (Qld) Pty Ltd T/A Remax Partners Hervey Bay
(U2016/2089)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 3 JUNE 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 Mrs Kosmidis and the respondent ended on 8 April 2016. Mrs Kosmidis lodged her application at the Fair Work Commission (the Commission) on 4 May 2016. Her application was lodged five days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mrs Kosmidis. I wrote to her on 9 May 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. Mrs Kosmidis provided a comprehensive statement on 20 May 2016. I issued an Order refusing her application for an extension of time and dismissed her application on 30 May 2016.

[4] 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.

[5] 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]

[6] 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.

[7] 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)

[8] The reasons Ms Kosmidis provided for her delay in lodgement are set out in this statement she provided from which I have extracted the relevant sections below:

“There are special circumstances that I believe apply in my case and I respectfully submit for your consideration in determining whether an extension should be granted. There are two key reasons for the delay in lodging my application.

Firstly, I was not aware I had been dismissed until 14 April 2016 when I realised a deposit was made into my bank account with the description “Final Pay”. The 21 day time period to lodge my application expires on 5 May, the day after I lodged my application with the Commission. The timeline of events were as follows:

• 7 April 2016 – last day I was at work. It was on this day I took sick leave due to the stress induced by my employer, Adam Kratzmann, who was abusive and bullying conduct. In 20 years of work, I have never been subjected to such behaviour. Mr Kratzmann states he believes I resigned on that day which I did not.

• 7 April 2016 – I notified Mr Kratzmann by email that I would not be at work the next day.

• 8 April 2016 – I went to my GP, Dr Nat Chanlenglert, for help. Dr Chanlenglert advised me to take some time off work and provided a medical certificate excusing me from work from 8 April to 15 April 2016. A copy of this medical certificate is attached. A further statement provided by Dr Chanlenglert dated 14 April 2016 is also attached.

• 8 April 2016 – Mr Kratzmann replied to my email of 7 April advising he had decided to hire someone else as he treated my absence as a resignation. A copy of this email is also attached. Mr Kratzmann relied upon my action of walking out of the office on 7 April and leaving behind my work keys without saying anything as grounds for assuming I resigned. In my case this was the most appropriate way to react to Mr Kratzmann’s conduct towards me on that day.

• 9 April 2016 – I responded to Mr Kratzmann by email, attaching a copy of the medical certificate confirming the need for leave from work, and refuting his statement that I had resigned. I restated the facts as I saw them, including his appalling behaviour towards me. A copy of this email is also attached.

• 10 April 2016 – Mr Kratzmann replied by email “You do what you need to do”.

• 11 April 2016 – a deposit was made into my account by my employer.

• 13 April 2016 – I became aware of the deposit made on 11 April and saw the payment details noted ‘Final Pay’ and emailed Mr Kratzmann to confirm if this was a termination payment. A copy of email my email of 13 April and reply of 14 April is attached with this letter.

• 14 April 2016 – Mr Kratzmann’s reply confirmed he viewed it as a resignation.

• 4 May 2016 - Application submitted to Fair Work Commission.

From the 8 April until 14 April the Respondent, Mr Kratzmann, continued to claim I had resigned. This does not represent notice of termination. There is also nothing provided to Mr Kratzmann by me to represent I had resigned employment. It was only after he marked my wage payment as “Final Pay” and my subsequent enquiry on 14 April that he enforced termination, despite calling it my resignation.

Based on this timeline of events it is arguable that my application was submitted within 21 days of termination. The number of days from the date termination was confirmed to me, 14 April, to the date of lodgement of the application, 4 May, was 20 days.

Secondly, I am experiencing serious anxiety, triggered by the behaviour and final confrontation with Mr Kratzmann. I have not been mentally in a frame of mind to research and complete the paperwork required to lodge the application with the Fair Work Commission. Since the day I walked out of the office I have been suffering from anxiety and have been struggling to concentrate. Every time I think about the day of my confrontation with Mr Kratzmann it brings on an anxiety attack. It has meant I am having trouble focussing upon anything to do with my employment there. As a result of this, working on this application becomes an extremely difficult thing to do. Evidence of this provided in the medical certificates provided by Dr Chanlenglert.”

[9] Mrs Kosmidis acknowledged in her statement that her employer had advised her on 8 April 2016 that he had decided to hire someone else and treat her absence as a resignation.

[10] The medical evidence provided by Mrs Kosmidis does not provide support for an incapacity to lodge Mrs Kosmidis’s application in time.

[11] I was not persuaded that Mrs Kosmidis’s 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] Mrs Kosmidis became aware of the end of her relationship with the respondent on 8 April 2016.

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

[13] Mrs Kosmidis disputed her dismissal by lodging this application.

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

[14] I was satisfied that there would be no greater prejudice to the respondent caused by Mrs Kosmidis’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)

[15] Merit was a neutral issue in my consideration of this application.

fairness as between Ms Kosmidis 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. Mrs Kosmidis’s circumstances were not out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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