Victoria Richards v Clare Country Club Unit Trust T/A Clare Country Club

[2015] FWC 1398

[2015] FWC 1398

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Victoria Richards
v
Clare Country Club Unit Trust T/A Clare Country Club
(U2015/2794)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 11 MARCH 2015

Application for relief from unfair dismissal - extension of time not granted.

[1] Ms Richards has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with Clare Country Club Unit Trust T/A Clare Country Club (Clare Country Club). At a telephone conference convened on 3 March 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion

[2] Ms Richard’s application was lodged on 4 February 2015. In that application Ms Richards advised her employment was terminated with effect from 13 January 2015. In her application, Ms Richards advised that the application was lodged within time.

[3] On 10 February 2015 my Associate corresponded with both Ms Richards and Clare Country Club and advised that the extension of time issue would be considered through a telephone conference on 4 March 2015. Substantial information about the extension of time issue was provided to the parties. Ms Richards was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 25 February 2015.

[4] Additional information was received from Ms Richards in the following terms:

“Dear Senior Deputy President
I had sent the application on Monday the 2nd of February and was hoping for you to receive the application on the 3rd which was the last day of the 21 days. I knew that it would get to Adelaide over night but I didn’t know it had to be sent to Melbourne after receiving it in Adelaide, that is why it was received a day late. In between those times I had depression as I have lost a lot of money and worried about paying for everything and I lost track of time. I am very sorry for the delay.
Sincerely
Victoria”

[5] Further, advice was received from Ms Richard’s father in the following terms:

“Dear Sir,
I do most humbly apologize for the apparent lateness of this application, I posted this application on behalf of my daughter Victoria on the 2nd of February. In good conscience I believed the 21 days was the 3rd of February and the point of destination for registration was ADELAIDE. And I believed by sending it registered mail it would arrive by the appointed dead line.
This event has been a devastating blow for my daughter who always tried to do the right thing. Her boyfriend unintentionally, let her down; her employer let her down, now I foolishly have let her down.
Please don’t penalise my daughter for my mistake I will humbly accept any penalty for my short coming. My daughter is only just starting out in life and it’s a hard thing to see your daughter taken down in such an unfair manner adding hardship to injury. I would gladly take a lengthy prison sentence if it would give her a fair go.
Please penalise me for this mistake and give my daughter a chance to redeem her integrity.
With my humble apologies.
Sincerely
David Richards”

[6] The Employer’s Response to the application did not express a position relative to the extension of time issue but advised of the correct name of the employer. I have utilised the discretion available to me to amend the application accordingly.

[7] Ms Richards participated in the telephone conference. Ms King and Mr Roberts from the Clare Country Club also participated in this conference. My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[8] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

(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.”

[9] On the information before me I am satisfied that the application was made one day outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 1 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 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.”

[10] Ms Richards’ advice about the posting of the application was somewhat inconsistent with the advice from her father but irrespective of this she has not provided an acceptable reason for the delay. It appears that Ms Richard’s application was sent to the Fair Work Ombudsman and to the Fair Work Commission, in Melbourne. Ms Richards advised that she “lost track of time”. None of the reasons for the late lodgement appear to me to meet the requirements for an exceptional circumstance. It is clear from Ms Richards’ application that she was aware of the termination of his employment on the day it took effect. I am not satisfied that, apart from the late lodgement of this application, Ms Richards pursued other actions so as to challenge the termination of her employment. I do not consider that an extension of time of this magnitude would prejudice the Respondent but this, of itself, does not provide a basis for an extension of time.

[11] In terms of the merits of the application, the information before me does not enable a definitive conclusion. Accordingly, I have regarded this factor as a neutral factor relative to the extension of time.

[12] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[13] Accordingly I have concluded that the material before me does not establish that Ms Richards’ circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR561485) giving effect to this decision will be issued.

Appearances (by telephone):

V Richards on her own behalf.

S King and G Roberts for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

March 10.

 1   [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

<Price code C, PR561483>