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[46]
[2018] FWC 3454
General information, not legal advice.
Fair Work Commission
2018-06-13
Original judgment source is linked above.
s.365 - General protections
Medical and Aged Care Group T/A Humphries Road Medical Clinic
Application to deal with contraventions involving dismissal - extension of time - application dismissed.
[1] Ms Maree Howard has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that her employment was terminated by Aged Care Group T/A Humphries Road Medical Clinic (HRMC) on 29 March 2018 in contravention of the general protections provisions of the Act.
[2] This application was lodged on 3 May 2018.
[3] Ms Howard's application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:
"I emailed the Operations Manager after speaking to Jobwatch on Tuesday after Easter.
was dismissed on 29th of March but not able to talk to Jobwatch or any other agency to gain advice until reopening after Easter as all public holidays (sic).
Not sure where to go for help approached several government areas difficult to get through as well (sic).
(so really still finding information or any on which proved difficult also (sic))."
Did not see all through was calendar days just 21 days (sic). decided to go ahead after speaking with representative (sic)."
[4] HRMC filed a form F8A Employer Response on 15 May 2018 which indicated that the dismissal occurred on 29 March 2018 and raised a jurisdictional objection on the basis that the application was lodged out of time.
[5] On 17 May 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 12 June 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties who were directed to provide an outline of argument of their respective positions by 25 May 2018.
[6] Ms Howard provided a written submission which is relevantly summarised as follows:
She was notified of her dismissal verbally on 29 April 2018 (sic).
The reason for the dismissal was that she "was not the right fit".
She was quite upset after leaving the HRMC's premises on the Thursday before Easter (29 March 2018) and was unsure as to how to proceed at that point.
She was unable to seek assistance or legal advice over the Easter period.
She visited her General Practitioner on 30 March 2018 who gave her a medical certificate and referred her to a psychologist.
She saw the psychologist on 4 and 17 April 2018.
She contacted Jobwatch and other Government agencies, including the Fair Work Commission.
At some point she became aware that the 21 days limit included all days and not just "business" days.
The application was lodged on 3 May 2018.
She corresponded with HRMC regarding the reason for the dismissal on 3 April 2018 and was advised by email on 4 April 2018 that she was not able to meet the busy clinic's requirements.
Ms Howard believes her dismissal was unfair.
[7] HRMC provided a written submission which is relevantly summarised as follows:
The dismissal occurred on 29 March 2018 and Ms Howard was advised verbally on that day.
Ignorance of the timeframe for lodgement is not an exceptional circumstance.
The correspondence on 3 and 4 April 2018 did not contribute to the delay.
Ms Howard was dismissed during her probationary period.
The General Protections claim has little substantive merit.
There are no substantive or reasonable excuses for the delay.
[8] A Hearing was conducted by way of telephone conference on 12 June 2018. A sound file record of the telephone conference was kept. Ms Howard represented herself and Mr David Wenban (AHIG Legal) sought permission to appear based on HRMC not having a HR department, no experience with the Commission and that the matter would proceed more efficiently. Ms Howard opposed the s.596 application.
[9] Permission was refused based on the fact that the parties submissions did not identify that the matter was complex from a factual or legal basis and that the submissions of the parties were already before the Commission and that HRMC had already articulated its factual and legal position.
[10] HRMC was represented by Ms Melissa Van Rennes (Operations Manager).
[11] Ms Howard reiterated the information contained in her submissions and further advised:
The unfair dismissal application form was downloaded on 13 April 2018.
Ms Howard felt apprehensive, stressed and anxious about lodging the application.
At some point in time (which she was unable to articulate) Ms Howard was aware that there was a 21 day limit, but presumed that it was measured in business days. At some point just before lodgement she became aware that the 21 days was measured in calendar days but decided to lodge the complaint and seek an extension of time.
Ms Howard believes she was discriminated against as she revealed that she had a previous workplace injury.
[12] HRMC reiterated it submissions and contended that it was unaware of the previous workplace injury prior to the dismissal. HRMC contended the claim had no merit and no exceptional circumstances existed.
[13] Section 366 of the Act relevantly states:
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(e) fairness as between the person and other persons in a like position."
"[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 every day 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."
[15] This general protections application by Ms Howard was made 14 days outside of the 21 day time limit and therefore can only be pursued if this time limit is extended.
[16] Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
[17] The reason for the delay was Ms Howard's ignorance that the 21 days limited referred to calendar days and not working days and that she was apprehensive, stressed and anxious about lodging the claim.
[18] Ignorance of the timeframe does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time: Rose v BMD Constructions Pty Ltd.[2]
[19] It is common for employees to suffer shock and trauma as a result of dismissal from employment: Rose v BMD Constructions Pty Ltd.[3]
[20] If Ms Howard has failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances: Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters.[4]
Any action taken by the person to dispute the dismissal
[21] Ms Howard corresponded with HRMC on 3 April 2018, the communication sought a better explanation of the reasons for the dismissal. HRMC responded to the communication on 4 April 2018. In my view the communication did not contest the dismissal.
Prejudice to the employer (including prejudice caused by the delay)
[22] There are no submissions before me that the granting of an extension of time represents prejudice to HRMC.
[23] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.
Fairness as between the person and other persons in a similar position
[24] Consideration of fairness relative to other persons in similar positions is a neutral factor.
[25] On having considered the material before me, I am not satisfied that Ms Howard's circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order[5] reflecting this decision will be issued.
Printed by authority of the Commonwealth Government Printer
Maree Howard
Medical and Aged Care Group T/A Humphries Road Medical Clinic [2018] FWC 3454
(1989) 167 CLR 372
(2004) 223 CLR 513