Window v Queensland Metal Recyclers Pty Ltd

[2016] FWC 1112

[2016] FWC 1112

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Tara Window
v
Queensland Metal Recyclers Pty Ltd
(U2015/16710)
SENIOR DEPUTY PRESIDENT DRAKE	SYDNEY, 18 FEBRUARY 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 Window and the respondent ended on 6 November 2015.

Ms Window lodged her application at the Fair Work Commission on 11 December 2015. Ms

Window’s application was lodged 14 days outside the statutory time limit.

[3]        When determining this application I had before me the Application for Unfair

Dismissal lodged by Ms Window. I wrote to her on 4 January 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. On 20 January I forwarded a copy of my request to Ms Window and

asked if she intended to respond. I did not hear from her and issued an Order refusing her

application for an extension of time and dismissed her application on 11 February 2016.

Immediately following the issue of my Order the applicant forwarded a copy of an email that

she indicated she had forwarded on 17 January 2016. I have no record of that email. However

in providing these reasons I intend to deal with the explanation for delay provided by Ms

Window.

[4]        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

[2016] FWC 1112

(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:

[2016] FWC 1112

‘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) 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.
[2016] FWC 1112
reason for the delay-s.394(3)(a)

[8]        The reasons Ms Window provided for her delay in lodgement were :

 she had found it difficult to move forward after the termination of her employment;

 her depression and anxiety had made it difficult to perform everyday tasks;

 being unable to receive Centrelink payments increased her stress and therefore her

depression and anxiety, and

 she had insufficient money to find available internet connections or travel.

whether the person first became aware of the dismissal after it had taken effect-

s.394(3)(b)

[9]        Ms Window became aware of the end of her relationship with the respondent on 6

November 2015.

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

[10]      Ms Window disputed her dismissal by lodging this application.

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

[11]      I was satisfied that there would be no greater prejudice to the respondent caused by Ms

Window’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)

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

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

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

[14]      I did not have Ms Window’s explanation for delay to hand when I issued my Order. I

issued my Order because of her failure to respond. However, I have now considered all of the

matters to which my attention is directed by the Act and I am satisfied that there were no

exceptional circumstances which would warrant my granting an exception to the statutory

time limit, and on that basis, had I had to hand Ms Window’s correspondence, I would have in

any event dismissed her application. Ms Window’s circumstances were not out of the

ordinary course, unusual, special or uncommon.

[2016] FWC 1112

SENIOR DEPUTY PRESIDENT

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