Yenny Ong v Sunglass Spectacular Pty Ltd

[2015] FWC 3030

[2015] FWC 3030 [Note: An appeal pursuant to s.604 (C2015/2753 was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 7 July 2015 [[2015] FWCFB 4031] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yenny Ong
v
Sunglass Spectacular Pty Ltd
(U2015/1150)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 1 MAY 2015

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 section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Ms Ong and the respondent ended in February 2015. There was a dispute between the parties about the date of termination of employment. Ms Ong lodged her application at the Fair Work Commission on 16 March 2015.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Ms Ong. The content of paragraph 1.4 of that application is set out below:

I was dismissed on 6 February 2015, I had several phone conversation with the owner requesting the reason for termination. I received separation certificate on 13 February 2015 with the reason for termination given “Employee leaving work voluntarily” I send an e-mail on 13 February 2015 stating that at no time have I submitted a resignation letter nor have I indicated an intention to leave the employment.

The owner of the business, Dean Glasser replied with an email stating that there has been “a serious miscommunication or misunderstanding” (quote). He offered to put me back on the employment when the manager Yanisa Holt came back from a holiday. I have been waiting to hear from them since then (21 days). A phone message that I sent to Mr. Dean Glasser on 10 March 2015 requesting an answer was answered with a blank message. I sent another message alerting him of the blank message but was not answered at all.

[4] I wrote to Ms Ong on 20 March 2015 outlining the matters I was required to consider by the Act and asked Ms Ong to provide a statement addressing these matters within 14 days. Ms Ong provided a detailed submission in response 1.

[5] After a consideration of the Employer Response I determined that the application required that the factual matters be determined by evidence in person rather than on the papers. The date of termination of employment had to be resolved as well as the effect of subsequent communications between the parties.

[6] I heard the application on 7 April 2015. I issued an Order refusing Ms Ong's application for an extension of time and dismissed her application on 16 April 2015.

[7] 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
(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.

[8] 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]

[9] For exceptional circumstances to arise as contemplated by s394 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 s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[10] I had to first determine the date of termination of Ms Ong's employment.

[11] The applicant’s employment was terminated on 3 February 2015. The respondent posted a Separation Certificate to Ms Ong dated 13th February 2015. The Separation Certificate incorrectly identified the date of termination of employment as 6 February 2015.

[12] If the date of termination of employment was 3 February 2015 the application was lodged 20 days outside the time limit for lodgement. If the date of termination of employment was 6 February 2015 the application was lodged 17 days outside the time limit for lodgement.

[13] There was subsequent contact between the parties which Ms Ong contended had caused her to think that her employment had been reinstated.

[14] On 19 February 2015 Mr Glasser for the respondent forwarded an e-mail to Ms Ong and on 22 February 2015 Ms Ong replied. That exchange is extracted below:

Dear Dean,

Thank you for your serious attention regarding my employment with your company.

I would like to bring to your attention that at no time have I submitted a resignation letter.

I am happy to remain in your employment, but please consider that due to this so called serious miscommunications or misunderstanding I have suffered lost of income and severe anguish.

I would appreciate if you could set up a meeting between I, you and Yanisa Holt to ensure that I get at least 18 hours a week just like when I started working with your company. I also would like to discuss a way for us to communicate to ensure that no further misunderstanding occurs.

I will be waiting for further communication from you.

Regards,

Yenny Oviani Ong

Hi Yenny,

There seems to be a serious miscommunication or misunderstanding, as I was definitely under the impression that you were intending to leave for a more permanent position.
Yanisa is away for a few weeks, so I cannot discuss with her. The roster has been finalised for the next few weeks, but I am happy to try to re-roster you on if you want to remain on.

Please advise (and if this is the case, please return the separation certificate).

Regards,

Dean Glasser
Director

[15] Following this exchange Ms Ong contacted Mr Glasser by text but there was no further response from Mr Glasser. Ms Ong waited for Mr Glasser to reply, partly because Ms Holt had to return from holidays and might be consulted.

[16] I was satisfied that the date of termination of employment was 3 February 2015.

[17] I was not persuaded that the correspondence subsequent to termination of employment was a sufficient explanation for Ms Ong waiting a further 19 days before lodging an application pursuant to the Act. I did not consider that it amounted to a reason to grant an exception to the time requirements pursuant to the Act.

[18] 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)

[19] The reason Ms Ong provided for her delay in lodgement was her expectation that she would be reinstated following the correspondence received from Mr Glasser.

[20] I was not persuaded that her 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)

[21] Ms Ong became aware of the end of her relationship with the respondent on 3 February 2015.

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

[22] Ms Ong disputed her dismissal by corresponding with the respondent and lodging this application.

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

[23] I was satisfied that there would be no greater prejudice to the respondent caused by Ms Ong'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)

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

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

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

[26] 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. Ms Ong's circumstances were not out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

 1   Exhibit Ong 1

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