Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Potinak P/L ATF Rainbow Motor Inn Unit T/A Rainbow Inn

Application for an unfair dismissal remedy - jurisdiction - date of effective termination - extension of time - no exceptional circumstances present - unfair dismissal application dismissed.

[1] On 4 April 2017, Ms Claudette Deeb filed an application pursuant to subsection 394(1) of the Fair Work Act 2009 (the Act) claiming she was unfairly dismissed by her employer, Potinak P/L ATF Rainbow Motor Inn Unit T/A Rainbow Inn (Rainbow Inn).

[2] Rainbow Inn have objected to the Fair Work Commission (the Commission) exercising its jurisdiction to deal with the application because it was lodged more than 21 days after the dismissal took effect, which according to Rainbow Inn, occurred on 9 March 2017.

[3] It is Ms Deeb's contention that while she met with Rainbow Inn on 9 March 2017, she understood she had been stood down pending further investigation into account discrepancies. She had been employed by Rainbow Inn for more than 20 years.

[4] In order for the Commission to determine the merits of the application, it must first determine the date in which the employment relationship ended prior to determining whether, in the circumstances, an extension of time should be granted, if at all.

[5] Directions were issued on 14 August 2017 requiring the parties to file written submissions in support of their respective positions. A Determinative Conference was conducted by telephone on 13 September 2017. Ms Deeb appeared for herself. Rainbow Inn was represented by Mr Brian Jorgensen, Director, who gave evidence. Mr Chris Jorgensen, Marketing Manager and the son of Mr Brian Jorgensen also gave evidence, but was absent for the Determinative Conference when Ms Deeb and Mr Brian Jorgensen gave evidence.

[6] Mr Brian Jorgensen informed Ms Deeb she was not to attend work on 7 March 2017. A long-term manager from another of the Respondent's motels attended for work, and it is Mr Jorgensen's evidence that together they audited the front reservations revenue system of the motel. He alleged they discovered a number of fraudulent activities which he attributed to Ms Deeb, resulting in there being cash missing.

[7] Mr Jorgensen sent a text message to Ms Deeb at 9.28pm on 7 March 2017 stating relevant to the following day, 8 March 2017:

'Have the morning off and come in for the wages calculations at 2pm then you can go home.'

[8] Ms Deeb replied by text at 1.50pm on 8 March 2017 stating:

'Not feeling well won't be coming in I'll drop my detailed doctors certificate tomorrow when I pick up my pay'

'Claudette...you have been stood down pending further investigation of motel accounts discrepancies. You are invited to come in to explain transactions performed by you from last monday and before. You should do this before any pays are collected by you.'

[10] On 9 March 2017 Ms Deeb met with Mr Brian Jorgensen and Mr Chris Jorgensen. Ms Deeb's account of the meeting is as follows:

'...I went to meet Mr Jorgensen at his request in the restaurant, his son Chris was with him, on arrival Mr Jorgensen asked me to give him my handbag and mobile phone and said he did not want any recording devices??, as we started our meeting, he presented three transactions in dispute and I explained and reminded him that all the transactions in question were paid in cash and given to him as instructed by him, but he had an acute memory loss and was not interested in viewing his cctv that would show him receiving the money when he was in the bar, he tried to bully me with his intimidating tactics threatening me with CIB and police to try to scare me, I was totally devastated that my twenty years of loytaly (sic) would be rewarded with such cruelty, but I encouraged him to do so and that I had done nothing wrong as I was about to walk of (sic) I told him if they wish to contact me I will be going to Townsville on the weekend as my son was undergoing chemo and radiation treatment for six to eight weeks and I asked him if I could take my personal items from the back office since I was going to be away for two months to be my sons carer so he escorted me to the office and I took my coffee cup and couple of photographs.

At no time there was any discussion of terminating my employment, his son (the witness) will be only too happy to say anything in his father's favour especially when he had a massive hate toward me and has been trying to get rid of me for past two years and I have no doubt that he had a great influence on his father.

As far as I'm concerned, I was still stood down pending investigations of terminating my employment in writing not any separation certificate, considering I had been working for Mr Jorgensen for twenty years that should warrant written notification to end any confusion.'

[11] Mr Brian Jorgensen's account of the meeting of 9 March 2017 was as follows:[1]

"We set up a table in the restaurant where we wouldn't be interrupted and we had documentary evidence of certain specific accounts and these were put to Claudette to explain two particular guest rooms whereby the guests had been issued with receipts by Claudette from the computer that showed that no cash was paid but an amount of the room tariff was charged.........

We soon discovered there was a whole range of fraudulent transactions, reversals and stuff like that that just didn't match up. It was clear that I have been dudded. When I had the meeting with Claudette I made no secret about it. It wasn't an allegation or it was just direct accusation that she'd taken the money. And she said, "Well, I gave it to you." And I said, "Well, that's a nonsense Claudette." These transactions were specifically on the last day of your shift and at 1.00 o'clock and 1.30 - I think they both were - and she's saying, "I gave it to you. I wasn't even in the property."

So to me it was no doubt and I left no doubt in Claudette's mind that the matter would be referred to the police and that there had been a whole publicised section of small business with people being prosecuted for fraud and of small businesses in Cairns and that she would fall into that path and that if convicted she'd probably be doing gaol time because I suspected the amount was over $20,000.00.

So with that we walked to the office. She collected her belongings and then when she was walking away I asked her for a contact where she would be. And she said she'd be in Townsville and that was it. I'm still holding moneys (sic) and I asked the police what happens in these cases that have been well publicised as far as entitlements of long service leave and perhaps unpaid uncollected wages and they said, "You just refer them on to us." These Fair Work Ombudsmans and so on.

And certainly I was expecting that Ms Deeb would be back with some sort of representation to collect the - some money - but it never happened and I formed the belief that I thought Claudette's going away and doesn't want to raise the issue because she was hoping I would just let the matter drop. But just concluding - as far as the termination with collecting of it and handing in the keys and then vacating the property of personal effects and the words that were stated to her and then certainly threats left no one in any doubt that she had been dismissed."

[12] Mr Chris Jorgensen gave the following evidence during the Determinative Conference:[2]

'MR C JORGENSEN: Okay. Yes, I took a seat with Brian in the restaurant at the Rainbow Inn and - within a few minutes Claudette arrived. A conversation took place about just the situation that had arose and - the meeting went for about - I'd say about half an hour. At the end of the meeting - it was pretty clear that at that position, at that stage, Claudette won't be returning. She handed the key over to Brian and requested if she could just have some of her personal possessions from the office. She went down to the office, took her stuff and then left the site.

MR C JORGENSEN: At the meeting? It was just a question about - just the ethics or the process that we had sort of come across a couple of days beforehand that sort of raised red flags and we just asked Claudette to come in just to explain the situation of what happened.

THE COMMISSIONER: So she's there. What words are said?

MR C JORGENSEN: Well, we were questioning a couple of dates of - with cash being confirmed taken from guests. I had personally gone up and questioned the guests of how they had paid for a few of their rooms and they responded "by cash" - but there was no evidence of cash on the reservation system and that sort of raised the awareness of obviously something going on incorrectly. After looking at the reservation system there was quite a few different transactions or adjustments to payments and dates of guest's accounts and we spoke about just why the things were moved around, why wasn't some transactions allocated to certain rooms and how payments were taken.

THE COMMISSIONER: And how did the meeting conclude?

MR C JORGENSEN: The conclusion of the meeting was Claudette handing back the key across the table to Brian to request of that - you know - that was the ending of the employment and that will be followed up by a police - - -

THE COMMISSIONER: Well, who said that, Mr Jorgensen?

MR C JORGENSEN: What words did he use? Well, that it will be followed up under some sort of investigation - a police matter - and that she's not come to on site. Once Claudette had - you know - requested to go back and get her personal belongings from the office and hand the key in. I mean the employment on that - from that time onwards was terminated.

THE COMMISISONER: Well, was it done by words or by actions?

THE COMMISSIONER: Whose words? I need to - you're generalising. And there are some facts here. I know that the keys were handed over ?

MR C JORGENSEN: Yes. Sorry, I was - yes, that's okay. I haven't sat in here for half an hour. So I don't know how detailed you wanted to get. Yes. So - they were the words of Brian to Claudette that from here on in, you know, the employment situation was terminated. The key to be returned and her personal belongings to leave the premises. So Claudette passed the key in and walked down to the front reception. From then I didn't follow her down but what I know of is she'd got her personal belongings and walked off site.

THE COMMISSIONER: All right, Mr Brian Jorgensen do - - -?

MR C JORGENSEN: Sorry, did you want any more details over that?

THE COMMISSIONER: Well, tell me everything that you know relevant to the issue as to whether there was a dismissal or whether or not Ms Deeb can assert that she understood that there was - the investigation was still pending?

MR C JORGENSEN: No. No. Well, Claudette did say that - you know - we won't be hearing from her again but Brian did say that this matter would be followed up because it is a serious - you know - situation. Claudette has worked here for a long time and - you know - this was a situation that - you know - had to follow up professionally.'

[13] In cross-examination of Mr Chris Jorgensen, the following evidence was given:[3]

'THE COMMISSIONER: Well, Mr Chris Jorgensen was present. That's your evidence and he's now said that you said during that meeting, "You won't be hearing from me again." Do you wish to challenge him on that issue?

MS DEEB: Well, he knows very well that I never said that. And why would I say that. For every single case which was thousands of them ever since these dealings we've had any ombudsman involvement or through a payroll never once. I'm not stupid not to know that people are going to be dismissed can't apply for unfair dismissal. So why would I be saying I'm never going to be here or you're never going to be hearing from me again?

THE COMMISSIONER: Well, Mr Chris Jorgensen, I take that Ms Deeb is putting to you that you did not - that she did not say that. What do you say to that?

MR C JORGENSEN: I personally believe that maybe Claudette was probably startled. Like, I mean this is a huge - you know - this is a huge thing that arose very quickly. And I mean in her situation maybe just getting out of there as soon as possible and hoping that it all ended at that point was probably the result that she was looking for. But I mean it's such a serious case that - I don't know - maybe it's played on her mind a bit and following something up was what she wanted to do but at that point - - -

THE COMMISSIONER: Well, I'm not asking you, Mr Chris Jorgensen, what you thought she thought?

THE COMMISSIONER: Did she say words to the effect you won't be hearing from me again?

THE COMMISSIONER: Ms Deeb, any further questions of Mr Chris Jorgensen?

MR C JORGENSEN: Yes, well that - I mean that's incorrect. So - - -'

[14] Mr Brian Jorgensen questioned Ms Deeb as detailed below[4]:

'MR B JORGENSEN: And Claudette, it was very significant when you said during our meeting or towards the end of our meeting that you - "I will not hearing from" - you said and "You will not be hearing or seeing from me again." Was that - was that - like an indication that I won't - you won't be hearing from me again and hopefully I'll let the matter drop with the police? What did you mean by when you said that?

MS DEEB: I didn't mean anything because I never said that and you very well know that. I simply informed you that I am about to go to Townsville and if the police want to contact me they can reach me on - by phone - and make whatever arrangements they need to. I never said anything about you weren't going to hear from me. I was going to Townsville - not planet Mars.

MR B JORGENSEN: Yes. Sure. The meeting concluded by you saying to me, I recall, "So that's it then - I'm finished." And I said, "Yes. And the matter will be referred to the police." You don't recall that comment?

[15] In answering questions from me, Ms Deeb denied that Mr Brian Jorgensen had informed her that she would be found guilty and would be 'doing gaol time'. It is her evidence that he informed her that the allegations were now with Detective Sergeant Heaton based in Cairns. Ms Deeb stated that Mr Brian Jorgensen had said he had referred the allegations to Detective Heaton, and 'other people' had gone to gaol for similar matters.

[16] In trying to understand when Ms Deeb considered the employment to have come to an end, and hence when she determined it was appropriate to bring the application, the following exchange occurred[5]:

'THE COMMISSIONER: So there's a number of days there and you had capacity, it seems, to file the application on the 4 April. Can you explain that period of time?

MS DEEB: Well, like I said, by about the third week my son was at his worse state. He was on - being tube-fed - and in a lot of pain and his morphine patches were increasing. They're going up to cope and continue with his treatment. I then further drove him here to Cairns so he can recover for the weekend and that's when my brother passed away and that took a massive toll on my family and his children were supposed to come in and be with me also to help with my son for his treatment, and they had to cancel, because we suddenly had a funeral to attend to. And I couldn't, obviously because I had my son to focus on, so I had to cancel everything and to stay by my son's side. So for the entire five days it was including the weekend and including my brother passing away. So, again, another reason why I just was in my worse state and nothing else was focused on.

THE COMMISSIONER: What triggered you on the 4 April to bring the application?

MS DEEB: Because I felt at the time it was starting to - it was action time. We had to make some effort to try to address this.

THE COMMISSIONER: Did it come to you on that day it was appropriate?

MS DEEB: No. We had obviously intentions to do it, actually that week, but then my brother passing away just stalled it for a couple of days until we got back into Townsville and we tried to see when it was going to be a suitable time for - you know - to get my head together so I can sit down and try to lodge an application because it was quite involved obviously.'

[17] The following evidence from Ms Deeb is also relevant[6]:

'THE COMMISSIONER: What were you doing from the 8 March? I understand you would have been at hospital for some time, is that right?

MS DEEB: That's right. I went a few days later to Townsville for six weeks but I was home on the weekend.

THE COMMISSIONER: Right. And at what point did you conclude that your employment had ended?

MS DEEB: Well, when the first week went and I never got back for the weeks that I worked or anything else that was the beginning of my conclusion and then by week two and week three I was pretty determined. Obviously, he wasn't going to pay me anything and that was the end of that. So I then lodged the application.

THE COMMISSIONER: Well, on the 8 March this meeting occurred. When did you conclude that your employment had ended?

MS DEEB: After about the third week when I - obviously then - well, I was pretty sure that he was never going to pay me anything. Obviously he doesn't want me then to come back. I'm still waiting.'

[18] Ms Deeb confirmed she had access to a mobile telephone and was within mobile phone coverage. She did not attempt to contact Mr Brian Jorgensen because she stated that she was waiting to hear from him.[7]

[19] The preliminary issue to be determined is on what date the employment relationship ended. If I find that the employment relationship ended on 9 March 2017, then Ms Deeb's application was not made within the statutory time limit unless I decide to grant an extension of time pursuant to s. 394(3) of the Act.

[20] Below are relevant provisions of the Act for consideration:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388."

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[21] Throughout the application process and the Determinative Conference conducted, there appeared to be some confusion as to what date Ms Deeb met with Mr Brian Jorgensen and Mr Chris Jorgensen. Several references were made to the meeting taking place on 8 March 2017. However, having identified that Ms Deeb was stood down via a text message received on 8 March 2017, and requiring her to attend a meeting the following day, it is clear that the meeting between Ms Deeb and Rainbow Inn took place on Thursday, 9 March 2017.

[22] As indicated above, the preliminary issue to be determined is whether the employment relationship came to an end at the meeting between the parties on 9 March 2017.

[23] A dismissal takes effect when it is communicated to the employee who is being dismissed,[8] and can be communicated orally.[9] A termination at the initiative of the employer involves some action of the employer that it intended to bring the employment relationship to an end, or had that probable result.[10]

[24] There is competing evidence before the Commission as to what was said by Mr Brian Jorgensen and Ms Deeb at the meeting on 9 March 2017. What is uncontested is that Ms Deeb returned the keys she had in her possession, and she also took with her personal photographs that had been in the workplace, together with her coffee cup.

[25] It is Ms Deeb's contention she did these things because she knew she would be away from the workplace for some time, caring for her adult son who was undergoing treatment for cancer. Some years earlier she had returned from leave to discover Mr Chris Jorgensen had renovated an office and her personal belongings had been misplaced.

[26] The act of Ms Deeb returning the keys and taking with her personal photographs and her coffee cup weighs in favour of a finding that Ms Deeb's employment had been terminated. If she considered she was simply being stood down with a likely return to the workplace, it was available to her to put the personal photographs and cup in a safe place within the workplace.

[27] As to what words were stated by Mr Brian Jorgensen at the meeting, I consider the meeting was acrimonious, particularly when at the commencement of the meeting, Mr Jorgensen examined Ms Deeb's bag to ensure she was not recording the conversation. Mr Jorgensen considered he had been 'dudded' by Ms Deeb, and she considered she was being unfairly accused of a crime after 20 years of service. It is not necessary, of course, to determine for the purposes of this jurisdictional objection whether the Commission finds on the balance of probabilities that Ms Deeb had committed the acts alleged of her.

[28] Ms Deeb's evidence is that Mr Brian Jorgensen did not state that she would go to gaol, but that others in the community had gone to gaol where similar matters had been investigated and the person found guilty. On the balance of probabilities, I prefer Mr Brian Jorgensen's evidence on this issue, as I do consider that he was firmly of the view that Ms Deeb had stolen from him. I determine that Mr Jorgensen was very forthright, indignant and outraged, and informed Ms Deeb that the matters were being referred to the Police, and on his view, she could expect to 'be gaoled' for the crimes he considered she had committed.

[29] Where Mr Jorgensen stated she could expect to hear from the Police, I do not accept that could reasonably be expected to mean that she could expect to hear from Rainbow Inn relevant to her continued employment after the Police had reviewed the accusations.

[30] I do not accept that Ms Deeb said words to the effect, "You will never be hearing from me again." It does not make sense that Ms Deeb said those words, and within one month she commenced these proceedings and seeks payment for wages and statutory entitlements that have not yet been paid to her.

[31] I do accept that Ms Deeb said, "So that's it then - I'm finished" and Mr Brian Jorgensen said, "Yes. The matter will be referred to the police." On the balance of probabilities, and in the absence of any statements that Ms Deeb had been stood down pending the police investigation, I consider this to have been when the dismissal took effect.

[32] Ms Deeb was not able to positively state that Mr Brian Jorgensen had said to her that she could take as much time as she needed to care for her ill son, await further communication from the respondent, and to stay in touch. I accept that Mr Brian Jorgensen informed Ms Deeb that she could expect to be contacted by the Police, but not by the respondent.

[33] At no time following 9 March 2017 did Ms Deeb attempt to contact Mr Jorgensen to inquire as to how the investigation was progressing. While I have given all relevant consideration to Ms Deeb's genuine and necessary preoccupation with attending to her son, Ms Deeb's failure to contact Mr Jorgensen to make inquiries weighs against her contention that she understood she was suspended from her employment, but not dismissed.

[34] If Ms Deeb considered she was suspended from her employment, such suspension would necessarily be a paid suspension. Alternatively, if she considered that she was suspended and on carer's leave, attending to her ill son, she could expect to be paid. Wages payments were made to employees in cash. Ms Deeb did not make any contact with Rainbow Inn to discuss how she might organise collection of her cash wages over at least three weeks. The failure to initiate any contact with Rainbow Inn weighs against Ms Deeb's contention that she considered her employment was suspended.

[35] In her application to the Commission, Ms Deeb sought the following remedy:

1. My last full week worked 60 hours ending Tuesday 7th March;
2. Three weeks holiday leave over 150 hrs (not including any additional entitlement since been stood down)
3. Two weeks notice that was not given
4. 7 years pro rata long service leave
5. My superannuation (roughly 9 weeks worth)
6. My group certificate
7. Six weeks compassion leave (to care for my son having chemo/radiation treatment in Townsville) since for 20 years I hardly ever used any sick leave. This was asked for shortly prior to being stood down.'

[36] The items Ms Deeb was seeking were largely existing entitlements (wages, annual leave, long service leave and superannuation). Ms Deeb's request for 7 years' pro rata long service leave appears to be in error, given her 20 years of service where she would have a full entitlement to long service leave.

[37] The only remedies Ms Deeb appeared to be seeking relevant to her claim that she had been unfairly dismissed were in relation to two weeks' notice (which would actually be five weeks' notice given her age and length of service), and payment for carer's leave if the Commission found she should not have been dismissed.

[38] Ms Deeb's evidence is that two to three weeks following the meeting of 9 March 2017, she had concluded that she would not be paid the entitlements she considered she was owed, and therefore she brought the claim for unfair dismissal.

[39] I am satisfied that Ms Deeb's employment was terminated by Mr Brian Jorgensen at the meeting of 9 March 2017. I accept that Mr Jorgensen did not say words to the effect, "You are terminated" or "Your employment is terminated".

[40] I find that Mr Jorgensen made serious allegations against Ms Deeb at the meeting, and informed her she could expect the Police to be in touch with her, and on his view, she could expect to go to gaol.

[41] Ms Deeb collected her personal belongings and returned the respondent's keys. As I have stated in [31] above, when Ms Deeb concluded that her employment had ended, Mr Jorgensen confirmed that was the case, and accordingly the employment ended with immediate effect.

[42] Given how acrimonious the meeting was, and Mr Jorgensen's accusations and statements that she could expect to go to gaol, together with Mr Jorgensen confirming "Yes" to Ms Deeb's question, "So that's it then - I'm finished", it is not reasonable to conclude that Ms Deeb considered that she was simply suspended. Further, Ms Deeb failed to make inquiries as to wages owed to her for work performed before 9 March 2017, together with paid carer's leave.

[43] It follows and I find that the effective date of dismissal is 9 March 2017. As the application was filed in the Commission on 4 April 2017, Ms Deeb's application has been made five days outside the 21 day time limit prescribed by the Act. It is therefore necessary for me to consider whether Ms Deeb should be granted an extension of time.

[44] Subsequent to my above finding that the employment ended on 9 March 2017, it is now necessary to determine whether exceptional circumstances are established and whether discretion to extend time should be exercised.

[45] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd[11] 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] 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." [Endnotes not reproduced]

[46] 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) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[47] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable.[12]

[48] In addressing the issue of 'exceptional circumstances', I adopt the approach taken by Whelan C in Parker v Department of Human Services[13] (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)[14] as set out below:

"[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) [1999] UKHL 4; [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."[15]

[49] In considering an application for an extension of time I must be satisfied that there are "exceptional circumstances" taking into account those matters in s.366(2) of the Act. I will consider each of those matters in turn.

[50] The reasons for the delay advanced by Ms Deeb is that initially she believed she had only been stood down by Rainbow Inn, and that she was very focused on taking care of her adult son who was undergoing cancer treatment at the time in Townsville.

[51] Further, Ms Deeb's brother passed away from a heart attack on 1 April 2017. During the Determinative Conference, Ms Deeb explained that it came as a shock to the family, and despite only having visited her brother on two occasions in the last 20 years in Lebanon, she experienced grief. Family members who were scheduled to assist Ms Deeb in caring for her son became tasked with preparing a funeral for Ms Deeb's brother.

[52] I accept that in light of her having to attend to her adult son's treatment in the coming weeks, there may have been some confusion on Ms Deeb's part following the meeting between herself and Rainbow Inn on 9 March 2017. She may well have been very shocked at the allegations, even more so if she is not guilty of the allegations. However, it is surprising that Ms Deeb made no attempt to question the outcome of the meeting with Rainbow Inn at any stage following the conclusion of the meeting on 9 March 2017 until lodging her unfair dismissal application on 4 April 2017.

[53] Ms Deeb's evidence is that as the weeks progressed on her son's cancer treatment, he became more ill. She was, however, not permanently by his side in hospital, nor was her son staying overnight in hospital. Ms Deeb and her son travelled weekly from Cairns to Townsville and were accommodated in an apartment. There was considerable time available after hospital treatments where Ms Deeb and her son returned to the apartment and Ms Deeb had with her a laptop with internet access. Ms Deeb and her son returned to Cairns on weekends.

[54] While sympathetic to Ms Deeb's circumstances, particularly those in relation to her 30 year old son's cancer treatment, her brother's sudden death in Lebanon and what she might have considered to be a vague dismissal, I am not persuaded that Ms Deeb has provided a satisfactory explanation as to why she could not lodge her unfair dismissal application during the required 21 day statutory time limit.

[55] The death of Ms Deeb's brother occurred on 1 April 2017, after the 21 day statutory time had passed. Ms Deeb did, shortly thereafter on 4 April 2017 bring the application.

[56] On Ms Deeb's evidence, she considered by around week two or three after the 9 March 2017 meeting that she needed to challenge Rainbow Inn. While her submission is that she was preoccupied with caring for her son, the considerable time available to her when in the apartment (as opposed to a hospital) weighs against Ms Deeb and her failure to bring the application within the statutory time limit.

[57] I have had regard to the decision of Spencer C in McKenzie v Kartaway (QLD) Pty Ltd T/A Kartaway Miniskips Queensland [2013] FWC 544. The Commissioner determined that exceptional circumstances did not arise where the applicant in that matter was dealing with a number of family emergencies such as caring for his 17 year old son who had been involved in a serious accident, and the passing of the applicant's stepmother, requiring interstate travel to attend her funeral. It is noted that the Commissioner found there were some days within the statutory time limit of 14 days (at the time) where the applicant in the matter before the Commissioner could have made his application.

[58] In a decision of Cribb C in Ebbott v FMSA [2010] FWA 2177, the Commissioner found the reasons for the delay in bringing an application before the Commission, which included distress from having been bullied at work, the applicant's girlfriend's high risk pregnancy including cervical cancer, and the death of his grandmother, as awful as the personal events were, did not prevent the applicant from bringing a claim within the statutory time limit.

[59] I am not satisfied that Ms Deeb has provided a reasonable explanation for the whole of the delay and this weighs against a finding that there are exceptional circumstances.

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

[60] Although Ms Deeb contends that she considered herself stood down following the meeting on 9 March 2017, it should have been reasonably apparent to her that her employment had been terminated on that day. While she has denied that she personally was threatened with gaol time, I find that Mr Brian Jorgensen did in fact threaten this could occur as a consequence of the allegations he made against her.

[61] Ms Deeb concluded by no later than two weeks following the meeting on 9 March 2017 that she needed to do something in order to have her payments made to her, and that is why, in my view the remedy in [35] is drafted so. Ms Deeb was largely seeking to recover entitlements owed to her.

[62] On Ms Deeb's own evidence, she was still within the 21 day time limit when she determined she needed to do something to challenge Rainbow Inn's actions.

Any action taken by the person to dispute the dismissal

[63] There is no evidence before the Commission that Ms Deeb took any steps to dispute her termination until the lodging of her unfair dismissal application on 4 April 2017.

Prejudice to the employer (including prejudice caused by the delay)

[64] There is no evidence of prejudice to Rainbow Inn if an extension of time were to be granted. While I note the respondent has contended that it is a small business employing less than 15 employees, there is a reasonable contention that associated entities may take the number of employees to 15 or more. It is not necessary to determine this issue at this point in time.

[65] The "mere absence of prejudice to the employer is an insufficient basis to grant an extension of time".[16] I therefore consider this to be a neutral factor.

[66] In the matter of Kornicki v Telstra-Network Technology Group[17] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."[18]

[67] The merits of the application based on what has been received in submissions and evidence by both parties is clearly contested. Rainbow Inn strongly claims that Ms Deeb has committed fraud to which Ms Deeb denies. It is also clear that I am not in a position to form any view about the respective merits based on the material before me.

[68] After considering the material filed by the parties it is clear that there are factual disputes between the parties and it is not apparent that the application is without merit or that merit is anything other than a neutral consideration.

[69] If Rainbow Inn was seeking to rely on the Small Business Fair Dismissal Code at s.388(1) of the Act to argue in a substantive determination of the issue that it held a belief on reasonable grounds that Ms Deeb's conduct was sufficiently serious to justify immediate dismissal, it would be necessary for the Commission to first determine if Rainbow Inn, in light of Mr Jorgensen having interests in other motels, is in fact a small business.

Fairness as between the person and other persons in a similar position

[70] I do not consider that there are any other relevant persons in a similar position to Ms Deeb. I therefore find this to be a neutral consideration.

[71] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied there are exceptional circumstances which would warrant granting an exception to the statutory time limit.

[72] Ms Deeb's circumstances, while distressing to her at the time are not out of the ordinary course, unusual, special or uncommon.

[73] As Ms Deeb has not demonstrated that there are exceptional circumstances sufficient for me to exercise my discretion to extend time, I refuse the application for an extension of time. The application has been filed outside of the time required by s.394(2)(a) of the Act. The application must be dismissed.

[74] I order that the Application be dismissed.

[75] Rainbow Inn has acknowledged that it owes to Ms Deeb a number of entitlements including wages, unpaid annual leave and long service leave. Mr Brian Jorgensen's explanation for not having paid these entitlements to Ms Deeb is that he considers that she has stolen money from him.

[76] Ms Deeb is to be presumed innocent of the allegations. To the Commission's knowledge she has not been charged with any offence. The Commission does not have any power under the Act to order Rainbow Inn to pay to Ms Deeb the entitlements owed to her.

[77] Ms Deeb is encouraged to contact the Fair Work Obudsman to assist with the recovery of all monies owed to her.

Mr B. Jorgensen appeared on behalf of the Respondent.

[8] Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, 21 November 2000) print T3496.

[9] Plaksa v Rail Corporation NSW [2007] AIRC 333.

[10] Searle v Moly Mines Limited [2008] AIRCFB 1088 at para 2.

[11] [2011] FWAFB 975.

[13]Wheelan C, [2009] FWA 1638, [30] and [31].

[14] Lawler VP, [2010] FWA 1394.

[15] In this regard Wheelan C referred to Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.

[16] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[17] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

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