Fair Work Act 2009_

s 394 - Application for unfair dismissal remedy

Application for relief from unfair dismissal - application lodged 'out of time' - consideration of 'exceptional circumstances' - incorrect information from employer - allegations of misconduct - merits of claim not strong - 'exceptional circumstances' not made out - application dismissed.

[1] This decision arises from an application to the Fair Work Commission (the 'Commission') for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the 'Act'). Ms Carolyn Baramilis (the 'applicant') was dismissed from her employment with Residual Property Pty Ltd (the 'respondent') on 18 December 2014. The applicant lodged her application on 9 January 2015. The Act mandates a 21 day time limit for initiating an application for unfair dismissal. The application was therefore lodged one day outside of the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for an Unfair Dismissal Remedy and the Form F3 Employer's Response filed on 21 January 2015. On 27 January 2015, the Commission wrote to the applicant outlining the matters I am obliged to consider under s 394(3) of the Act and asking her to provide a statement, addressing those matters within 14 days. The applicant provided a two page written statement on 8 February 2015. Having considered this material, I issued an order refusing an extension of time and dismissing the application on 10 February 2015. What follows are my reasons for doing so.

[3] The relevant legislative framework, guiding the exercise of the Commission's discretion in relation to applications of this kind, is set out as follows:

(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:

(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

(f) fairness as between the person and other persons in a similar position.'

[4] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 ('Nulty'). While Nulty was decided under the General Protections provisions of the Act, the definition of 'exceptional circumstances' has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, a Full Bench of the Commission 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] HCA 39; (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] HCA 45; (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) [1999] UKHL 4; [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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are "exceptional circumstances", taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when "exceptional circumstances" are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].'

[5] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not 'exceptional circumstances' have been established. Even if 'exceptional circumstances' are established, this is merely the jurisdictional gateway for the exercise of the Commission's discretion to extend the time for filing an unfair dismissal application. In other words, 'exceptional circumstances' may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application 'out of time'; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia [2014] FWCFB 2288 succinctly described the Commission's decision making process under s 394(3) of the Act as: 'The test for granting an extension of time involves both a broad discretion and a high hurdle of 'exceptional circumstances.' I turn now to each of the criteria set out under s 394(3) of the Act.

[6] The applicant was employed as a Casual Bookkeeper. In her written statement, she said that the letter of termination identified 17 December 2014 as her date of termination when it was actually 18 December 2014. This was acknowledged by the respondent in its Form F3 Employer's Response. Her Employment Separation Certificate also contained inaccurate details in relation to her final payments. This was amended on 24 December 2014, but was still inaccurate. A letter of termination correctly identifying her as having been terminated on 18 December 2014 was emailed to her, at her request, on 29 December 2014. She asserted that she should have received the correct letter of termination on the date of her termination.

[7] The applicant explained that she had initially been unaware of the 21 day statutory time limit. At some point she had contacted Commission staff, who had told her that she needed to lodge her application within 21 days of her dismissal. She had incorrectly assumed that she could file on 9 January 2015. She explained that had she lodged her claim immediately, she would have been using incorrect information initially supplied by the respondent. However, she wanted to make sure that the evidence she provided was accurate and complete. For these reasons, she had an unnamed third party evaluate her application and she had to wait for them to do so. In any event, she thought she had lodged the application in time on 9 January 2015. This was preferable to 'rushing it through' earlier. Nevertheless, she believed that the lodging of her application one day late, did not change the facts of her dismissal.

[8] I am unable to conclude that the reasons identified by the applicant constitute 'exceptional circumstances' within the meaning of s 394(3) of the Act. Legal or third party assistance or representation is not required to file an application for a remedy for an unfair dismissal and, indeed, parties frequently lodge their own application and represent themselves in such matters before the Commission. While I note that the applicant had provided approximately ten pages of additional written submissions at the time of lodgement, the only formal requirement was for her to lodge the relevant application form. The Form F2 available from the Commission, is simple and straightforward and extensive guidance is provided on the Commission's website as to the lodgement of such an application.

[9] Nor did the applicant identify the 'incorrect information' provided by the respondent which required her to wait before lodging her application. If she is referring to the inaccuracies in her letter of termination and her Employment Separation Certificate, I cannot see how this would have any bearing on the information required in her application, especially in light of my finding above that the applicant was aware she was dismissed on 18 December 2014. While inaccuracies in relation to her Employment Separation Certificate could conceivably create difficulties for the applicant in gaining access to benefits, they do not constitute any bar on the lodgement of an unfair dismissal application.

[10] Lastly, I note that ignorance of the statutory time limit does not constitute an 'exceptional circumstance' within the meaning of s 394(3) of the Act; See: Nulty at para [14].

[11] In all the circumstances, the Commission cannot be satisfied that the applicant's stated reason/s, either individually or cumulatively, for filing her application 'out of time' constitute 'exceptional circumstances', as contemplated by the statute.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[12] Although the applicant complained that the letter of termination incorrectly identified the date of her dismissal as 17 December 2014, her application and her written statement both make clear that she understood she was dismissed on 18 December 2014. The Form F3 Employer's response also identified 18 December 2014 as the date of the applicant's dismissal. I find that the applicant was first aware of her dismissal on 18 December 2014.

Any action taken by the person to dispute her dismissal (s 394(3)(c))

[13] The applicant referred to contacting the respondent on a number of occasions to have her letter of termination and Employment Separation Certificate amended. However, she made no reference to disputing the dismissal with her employer. I find that the first concrete action taken by the applicant to dispute her dismissal was the lodgement of this application on 9 January 2015.

[14] The applicant did not expressly address this criterion. Given the circumstances and the short delay in filing the application, this is a neutral factor in my consideration of whether to grant an extension of time.

[15] In a number of written statements attached to her Form F2 application, the applicant acknowledged doing her own study and work for a personal client in the respondent's office on Sunday 30 November 2014. However, she had also met Ms Vanessa Croaker, Administration Manager, when she was there. The applicant claimed that this issue was not raised with her again for 18 days. She said that she had never been advised that staff were unable to attend the office alone.

[16] The applicant said that on 18 December 2014 she had been directed to attend a disciplinary meeting and she was offered the opportunity to bring a 'witness'. At the meeting, Mr Don Logan (General Manager) asked what the applicant had been doing when she attended the office alone on a Sunday. The applicant initially thought that he meant the weekend immediately prior to the meeting, when she had attended the office to collect some personal items, although it soon became clear that he was referring to Sunday 30 November. Mr Logan had explained that this was a serious issue. She had replied that she had used her own materials when working on company files at home and that this was no different to working in the office for personal clients. The applicant was advised that she was to be terminated for misconduct immediately.

[17] The applicant made reference to a disability affecting her leg and difficulties that this caused her in relation to fire drills. She had taken exception to a comment made by Ms Croaker about her being a 'high risk' in relation to her working at the respondent's office alone. She also made reference to a personal dispute between her and Ms Croaker. The applicant complained of derogatory comments in relation to her disability and the fact she had not been allocated a closer parking spot when the respondent obtained new parking.

[18] The applicant made a range of complaints about bullying and discriminatory treatment by Ms Croaker and Mr Logan. She said that she had been left in the office alone on number of occasions and that this justified their summary dismissal. She also referred to using her own computer equipment and internet access for the respondent's benefit. She listed a number of supposedly unauthorised charges made by the Sales Manager on the company credit card, which she had raised with management. No action was taken by management. Other staff members had been permitted to sit in the office and make person phone calls in relation to matters such as purchasing a new property, browsing non-work related internet sites, taking long lunch hours and falsifying time sheets.

[19] The applicant said that the respondent had no right to ask for the computer password she had placed on her work computer and said that she had refused to give it to staff of the respondent after she had been terminated. The respondent said that the material on the computer was the property of the respondent and that the applicant was obliged to provide the relevant password. I agree with this submission. The applicant provided transcripts of emails in which she said that she had been 'threatened' and 'bullied' by Mr Logan in relation to this issue. Having perused the emails between the applicant, Mr Logan and Mr Georges Pentecost (also of the respondent's office) which were annexed to her application, I can find no cogent evidence of bullying or threatening conduct in relation to retrieving the password.

[20] The applicant provided a two page statement listing 'Benefits I brought to the Company'. I observe that there was nothing in this document that was outside the normal realm of duties for an employee in her position.

[21] In its Form F3 response, the respondent said that applicant would have been aware that she would not have been allowed to remain in the office alone since January 2013, when this policy was implemented by Mr Logan. She had been reminded of this on a number of occasions. When Ms Croaker found the applicant in the office on 30 November 2014, she was in possession of two shopping bags with arch lever files which did not belong to the respondent. Ms Croaker confronted the applicant, who admitted that she was doing work for personal clients. When asked about this in the meeting of 18 December 2014, she repeatedly claimed that she was only in the office doing her studies and that she was not in the office alone, as her daughter was to pick her up shortly.

[22] It is appropriate to note that a consideration of the merits of an application at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis; See: Kyvelos v Champion Socks Pty Limited Print T2421, 10 November 2000. However, it seems clear that the applicant was dismissed for misconduct in that she failed to follow the employer's reasonable direction not to attend or remain at the offices of the respondent alone and that she was using the respondent's resources for her personal bookkeeping business. Given that she was dismissed for misconduct, rather than for performance related issues, the so-called 'benefits' she brought to the respondent's business are not relevant to my consideration of this case.

[23] I also consider the numerous complaints of differential treatment and allegations of misappropriation levelled at other staff were merely an attempt by the applicant to divert attention from her own conduct. Strangely, the applicant hinted that some of these staff were from 'the same church' as Mr Logan. I am not sure what inference I was expected to draw from this observation. I am satisfied, on a prima facie basis, that there were valid reasons for the applicant's termination and am able to make a prima facie assessment that the applicant's prospects of success are not particularly strong. This factor weighs against an extension of time being granted.

Fairness as between the person and other persons in a similar situation (s 394(3)(f))

[24] The applicant did not expressly respond to this criterion, although she made a number of allegations as to differential treatment (see above). For the reasons I have given above (see para [23]), I do not consider the applicant's position in relation to another person in a similar position is unfair. Her dismissal appears to be a conventional summary dismissal on the grounds of misconduct.

[25] Having considered all of the matters which the Commission is required to take account under s 394(3) of the Act, I am not satisfied that there are 'exceptional circumstances' which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed by the material submitted by the applicant, are not 'out of the ordinary course, unusual, special or uncommon'. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 10 February 2015.

Printed by authority of the Commonwealth Government Printer

var _gaq = _gaq || []; _gaq.push(['_setAccount', 'UA-9592794-1']); _gaq.push(['_trackPageview']); (function() { var ga = document.createElement('script'); ga.type = 'text/javascript'; ga.async = true; ga.src = ('https:' == document.location.protocol ? 'https://ssl' : 'http://www') + '.google-analytics.com/ga.js'; var s = document.getElementsByTagName('script')[0]; s.parentNode.insertBefore(ga, s); })();