Application for extension of time for filing of unfair dismissal application.

[1] On 17 February 2010, Ms Attracta Gallagher ('the applicant') filed an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 ('the Act'). The applicant worked for seven and a half years as a child care worker employed by Kidz Biz Pre-School & Long Day Care ('the respondent'). Her application records her dismissal date as 18 January 2010.

[2] Prima facie then, her application for an unfair dismissal remedy is not competent as it falls foul of s 394(2)(a) of the Act, which prescribes a 14 day time limit from the time the dismissal took effect to the filing of the application. However, the applicant asks Fair Work Australia (FWA) to exercise its discretion to allow an extended time limit for the filing of her application, pursuant to s 394(3) of the Act. That section is expressed as follows:

3. FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.

[3] At this juncture, it is necessary for me to set out the respondent's dilatory approach to not only the circumstances surrounding the applicant's dismissal, but also its apparent disdain for these proceedings before FWA. On 13 March 2010, both parties were advised of a telephone conciliation on 30 March 2010, before a Fair Work Conciliator. On 25 March 2010, FWA wrote to the respondent pointing out that it had not:

a) provided a contact number for the conciliation conference; and

b) provided an employer's appearance advice or the employer's response to the application.

[4] The conciliation conference did not take place because Ms Maria Damaschino (said to be the owner of the pre-school), did not wish to participate and another of the respondent's representatives, Ms Dianna Jones, was unavailable. It appears from a letter from Ms Damaschino to Ms Jones that she had resigned her directorship and as licensee of the Kidz Biz Pre-School on 22 December 2009, and had nominated Ms Jones (her sister-in-law) as Managing Director and Secretary of the Company.

[5] The application was referred to me for a jurisdictional hearing on 7 May 2010. Ms Damaschino was advised by registered mail of the listing, together with directions to both parties to file and serve an outline of submissions, any witness statements and other documentary material. The respondent did not comply with the directions in any way. I was informed by the applicant that she had personally delivered her material in support of her application to the respondent's address.

[6] On the day of the hearing, after the respondent failed to appear or be represented, my Associate spoke to Ms Damaschino by phone. She stated that she was not aware of the listing or that she was required to attend. I note again that the respondent was advised of the listing and the directions by registered mail and facsimile. The applicant said her daughter took a phone call from Ms Damaschino the night before the hearing asking if she was required to attend. The applicant's daughter had no idea what Ms Damaschino was asking her about. Ms Damaschino had also spoken to the applicant the week before asking about the 7 May hearing.

[7] Notwithstanding Ms Damaschino's explanation, which I reject, I proceeded to hear the jurisdictional issue, ex parte. I have set out this background in some detail, as I consider it to be a relevant factor in determining this jurisdictional application. I have no reason to doubt the applicant's version of events from 17 January 2010 to 3 February 2010, as she described in her statement and during the proceedings. There appears to be no letter advising of her dismissal and no one had actually told her she had been dismissed. It follows that such a dismissal may constitute a constructive dismissal, about which more, will no doubt, be said in future proceedings.

[8] The applicant and two other permanent staff had a meeting with Ms Dianna Jones on 17 January 2010, the day before the pre-school was due to re-open after the Christmas/New Year break. Ms Jones told the applicant that she was not required until she knew the number of children who would be enrolled for the year. The applicant accepted this, notwithstanding she had been rostered to work on 18 to 22 January, before the Christmas break. The applicant said she waited and waited to be called and when she learnt that casuals had been employed at the pre-school, she filed a complaint with the Fair Work Ombudsman (FWO) on 3 February 2010. The next day she was advised that the FWO did not investigate unlawful termination complaints and she was advised to file her complaint with FWA. After requesting a fee waiver and eventually paying the fee, the present application was filed on 17 February 2010. The applicant said she had received no notice of her dismissal, there was no valid reason for her dismissal and the employer had not responded to any approaches to conciliate the matter.

[9] Considering these circumstances, I conclude that the applicant has demonstrated that the delay in filing her application was reasonable and she had not been derelict in disputing her dismissal. I accept that she:

a) had no idea she had been constructively dismissed on the first day of the new term;

b) had been rostered to work from 18 to 22 January 2010;

c) had initiated incorrect proceedings challenging her constructive dismissal when she realised the respondent would not be contacting her about further work; and

d) took immediate steps to initiate unfair dismissal proceedings by inquiring about a waiver of the filing fee.

[10] On one view, the applicant's constructive dismissal was on 3 February 2010; thereby resulting in the application being only 1 day late. For abundant caution, however, I shall accept the applicant's contention that the date of her dismissal was 18 January 2010.

[11] That said, I find that subsections (a), (b) and (c) of s 394(3) of the Act, have been satisfied in that the applicant has given a completely reasonable explanation for the delay in filing this application. She first became aware of her constructive dismissal on or about 3 February 2010, and had taken immediate action to dispute the dismissal when she realised she would not be offered any more work. I also find that there would be no prejudice to the employer in granting this application, given that it appears it has done virtually nothing in response to the application. Having regard for what the applicant has advised the Tribunal and which has not been disputed by the respondent, and given her seven and a half years of employment, there is, in my opinion, substantial merit in the applicant's claim and she has significant prospects of success (subsection (e)). I note also that subsection (f) does not apply in this case.

[12] Before determining whether the above factors constitute 'exceptional circumstances' comprehended by s 394(3) of the Act, I shall refer to the meaning of this expression as it is, in my opinion, conceptually and definitionally different to the previous statutory tests under the former Workplace Relations Act 1996 (s 643(14)): See Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298.

[13] It is an unassailable proposition that the inclusion of the expression 'exceptional circumstances' in s 394(3) of the Act represents a substantially higher bar to the exercise of the Tribunal's discretion than when the test was 'special circumstances' under the Workplace Relations Act: See note to s 643. In this respect, I have had occasion to consider the recent decision of Lawler, Vice-President in Christopher Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394, and I respectfully agree with his Honour's conclusions at paras [25] to [28], as follows:

[25] There have only been a handful of decided cases on extension of time, under the FW Act. In only two of those cases has there been any consideration of what is meant by "exceptional circumstances".

[26] In Shields v Warringarri Aboriginal Corporation 2 Kaufman SDP said:3

"The requirement that there be exceptional circumstances was not found in the Workplace Relations Act 1996 (the WR Act), the Act that preceded and was repealed by this Act. [FW Act]. Time for making an application under the Act [FW Act] is also shorter than it was under the WR Act: 21 days under the WR Act and 14 days under the Act [FW Act]. It seems to me that the alterations between the two acts evince an intention by the parliament that applications for relief should be confined to 14 days, except in rare cases; cases where there are exceptional circumstances. The use of the word "exceptional" also, in my view, evinces an intention that the hurdle for extensions of time is higher under the Act [FW Act] than it was under the WR Act."

[27] In Parker v Department of Human Services 4, Whelan C addressed the issue as follows:

"[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression 'exceptional circumstances' as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression "exceptional circumstances" is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

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."

[Mann v Minister for Immigration and Citizenship [2009] FACFC 150]

[28] While I agree with Kaufman SDP that the introduction of the requirement that there be "exceptional circumstances" means that "the hurdle for extensions of time is higher under the [FW Act] than it was under the WR Act." However, with respect, I prefer the analysis of Whelan C in relation to what constitutes "exceptional circumstances" and I adopt it. The articulation of the meaning of the word "exceptional" relied upon by the Full Court in the judgment cited by Whelan C was directed at the ordinary English meaning of the word and, in the absence of any indication to the contrary in the FW Act, that is the meaning to be given to the word "exceptional" in s. 394(3).

[14] I have also had regard for the general principles underpinning the waiver of time limits for the initiation of civil proceedings. These principles are encapsulated in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, where McHugh J said at p 551:

The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates"…

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (26). Second, it is oppressive, even "cruel", to a defendant to allow an action to be bought long after the circumstances, which gave rise to it, have passed (27). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (28). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (29), as the New South Wales Law Reform Commission has pointed out (30)…

…In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s. 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". (35) But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

[15] Taking into account the factors I have earlier referred to, in particular the applicant's reasonable prospects of success, I am well satisfied that the test of what constitutes exceptional circumstances has been established in this case. These circumstances are, to my mind, unusual, uncommon and not regular, routine or normally encountered.

[16] Accordingly, I propose to exercise my discretion under s 394(3) of the Act, to allow this application's time for filing to be extended by the requisite time to bring it within FWA's jurisdiction; being 16 days after the 14 days following her date of dismissal. An order shall be issued giving effect to this conclusion.

[17] I propose to now set this matter for substantive hearing and will list the application for arbitration on Wednesday, 30 June 2010, commencing 10:00am.

[18] In preparation for the further hearing of the application, I issue the following directions:

1. The applicant is to file and serve any evidence on which the applicant relies by 4:00pm on 25 May 2010.

2. The respondent is to file and serve any evidence on which the respondent relies by 4:00pm on 15 June 2010.

3. The applicant is to file and serve any evidence in reply by 4:00pm on 22 June 2010.

4. This decision is to be served on the respondent by registered mail and email.

[19] The respondent is reminded that a failure to comply with these directions and/or a failure to attend the proceedings on Wednesday, 30 June 2010, may result in the Tribunal deciding to determine the application, ex parte. This could result in adverse orders being made against the respondent.

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