FWA 4829
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Joy Bradbury
Interact Australia (Victoria) Ltd
MELBOURNE, 8 JULY 2010
Termination of employment – general protections claim – extension of time.
 Ms Joy Bradbury (the applicant) has made an application under s.365 of the Fair Work Act 2009 (the Act) for Fair Work Australia to deal with a dispute relating to her dismissal which is said to be in contravention of Part 3-1 of the Act (general protections). The applicant was dismissed by Interact Australia (Victoria) Ltd (the respondent) on 3 September 2009.
 The application has been lodged outside of the legislative timeframe, prescribed in Section 366(1) of the Act, of 60 days. The application was lodged on 24 November 2009 which was 18 days outside the 60 day time limit. The matter was listed for conciliation. However, the respondent objected to conciliation prior to determination of the extension of time.
 The applicant then sought an extension of time which was opposed by the respondent. Directions were issued to the parties regarding the filing of submissions, witness statements and any other material. The hearing took place on 17 February 2010.
 The applicant was represented by Ms K Wischer from the Health Services Union (the union) and the respondent by Ms F Anderson, solicitor.
 The applicant and Ms G Moore, State Organiser with the union, gave evidence on behalf of the applicant. Ms S O’Neil, Learning Manager, Ms C Woods, Human Resources Manager and Ms L Greenwood, Assistant Program Manager, Croydon appeared for the respondent.
 The applicant gave oral evidence and also provided a written statement. 1
 Ms Bradbury commenced work with the respondent on 9 June 2009. In addition, she was employed with the Department of Human Services (DHS) on a casual basis. 2 Prior to commencing with the respondent, Ms Bradbury received a letter from them confirming the offer of employment and enclosing an employment contract which included details of her remuneration.3
 It was recalled that, about the third week of her employment with the respondent, she realised that she was not being paid the rate contained in her contract. She telephoned Human Resources and was told that they had made an error in her contract in that the contract rate of pay was that for a full time employee and not a part time employee which she was. 4 Ms Bradbury proposed to the respondent that she work full time at Croydon only at the rate set out in her contract.5 The applicant indicated that she had had numerous discussions with Ms O’Neil about the issue and that Ms O’Neil had told her that she was waiting for a decision from Head Office.6 It was the applicant’s view that the respondent’s letter of 29 July 20097 advising her of her salary (the pro-rata part time rate) did not resolve the matter.8
 Ms Bradbury stated that, on 3 September 2009, she was advised that her contract was to be terminated because she was not suited to working with the company because of the issues that had happened earlier (questioning the contract). She recalled that she was also told that she did not seem happy working with high support needs participants. 9
 With respect to when she had contacted the union, Ms Bradbury said that, as the meeting had ended after working hours on 3 September 2009, she had rung the union first thing on 4 September 2009. The applicant recalled speaking to Ms Moore and telling her what had happened. Ms Moore told her to send her all the documentation. This was done on 7 September 2009. 10 The applicant indicated that she had spoken to the union again on 14 and 28 September 2009. On 1 October 2009, Ms Bradbury said that Ms Lovell advised her that her application would be a general protections application rather than an unlawful termination application. She stated that she had rung the union again on 12, 20, 23 October and 12 November to check on the progress of her claim. The applicant indicated that, on 19 November she was advised by the union that her application was out of time. She recalled being advised, at that time, that the time limit was 60 days but that the union had believed, incorrectly, that it was six months. She was also told that there had been uncertainty within the union as to who was preparing her application and that it had been inadvertently overlooked for a period of time.11 It was stated by the applicant that she had contacted the union about 16 times in the first two months after her dismissal.12
 It was recalled by the applicant that Ms Moore had told her several times that there was a six month time period for lodgement of the application. 13 Ms Bradbury stated that she had accepted the advice from the union regarding the timeframe as she had contacted the union to get advice regarding her dismissal.14
 During cross examination, the applicant indicated that, when she had run her own company, she had attended to all of the regulatory requirements herself including taxation. Ms Bradbury stated that she used the internet frequently. 15 She also confirmed that, prior to joining the respondent, she had had prior contact with the union.16
 With respect to her employment with the respondent, the applicant agreed that her preference, right from the beginning, was to work at Croydon for location reasons. 17
 In terms of the meeting with Ms O’Neil on 3 September 2009, it was the applicant’s evidence that:
• Ms O’Neil asked her if she was happy working with Interact and then said that they had the impression that she was not happy working with high support needs participants. 18
• She had responded by saying that she was happy and then that it had nothing to do with the clients as she was happy working with high support needs. 19
• Ms O’Neil then said how good the applicant’s performance was and how good she was with clients but because of the issues they had had with her early on, she did not fit into Interact’s structure and so her contract was being terminated. 20
• By “issues earlier on”, she understood Ms O’Neil to mean her questioning her contract as this was the only issue she had ever had with her. She also understood that this was the reason she was being dismissed. 21
• Ms O’Neil had a problem with the applicant questioning her contract because she had said to her that she did not want to lose her but if she pursued this... The applicant had assumed that Ms O’Neil meant that if she continued to pursue the issues about her contract rate. 22
• Ms O’Neil had referred her to Human Resources but the applicant had already spoken to them. 23
• The applicant confirmed that she had emailed Ms Killmeyer and that she received a letter from Mr Doyle dated 29 July 2009. She stated that this letter was the result of her discussions with Ms O’Neil who had told her that she would be receiving a letter. The applicant recalled telling Ms O’Neil that the letter would not change the contract. 24
• It was the applicant’s view that she was offered a position at a particular salary and that she understood that that was what she would be paid. When it became known that the respondent had made an error with the rate, the applicant said that she would not accept the change. 25
• The reason she had not contacted Mr Doyle after receiving the letter of 29 July 2009 was that she and Ms O’Neil had put in place a proposal for her to work full time at the contract rate. The proposal was still pending when she was dismissed. 26
• It was confirmed that she was on probation at the time her employment was terminated. 27
• She believed her dismissal was unfair for two reasons. The first one was that she had been promised one rate and was paid another rate (and was therefore owed money). The second reason was that she felt that her dismissal was unfair. 28
• She disputed some of the content of Ms Greenwood’s notes of the meeting on 3 September 2009. 29 She confirmed the first point and that Ms O’Neil had said they had concerns about the applicant fitting in. She said that she had never made it a secret that she wanted to be at Croydon rather than Balwyn but that it had nothing to do with the staff or the clients. She indicated that most of the dot points represented what Ms O’Neil had said but that the wording in the notes was not the way things were said at the meeting. However, she did not recall Ms O’Neil saying all of the things, for example, one week’s pay in lieu.30
 Ms Moore, State Organiser with the union, gave oral evidence and also provided a written statement together with a number of attachments. 31 Ms Moore confirmed that she was first contacted by Ms Bradbury on 4 September 2009 and that she had advised her, at least once, that the time period for lodging the application was six months. She said that the advice she was given was that the timeframe for a general protections dispute application was six months.32
 With respect to her discussions with Ms Bradbury, Ms Moore recalled that the applicant felt that she had been terminated as a repercussion for some controversy over inaccuracies in her contract. She had wanted the union to take up her case industrially. 33
 Ms Moore spoke to the emails, commencing on 12 November 2009, between herself and Ms Svendsen asking about the status of Ms Bradbury’s application 34 and also to the union’s telephone log of calls between the applicant and the union.35
 It was Ms Moore’s recollection that the purpose of Ms Bradbury’s application was to seek a remedy for what the applicant believed was her unfair dismissal. She said that Ms Bradbury was a person who had faith in the union’s advice and who took it on board. She also stated that the applicant was very concerned to ensure that the application was made. Ms Moore recalled that the applicant was fully accepting of the union’s advice regarding the timeframe. 36
 Ms O’Neil, Learning Manager with the respondent gave oral evidence and provided a written statement. 37 It was Ms O’Neil’s evidence that she had been approached by Ms Tibari and Ms Greenwood regarding the applicant’s performance. She recalled them having concerns about Ms Bradbury’s skill set and also the way she presented to the clients. It was said that the applicant had also commented to other staff, on a number of occasions, that she would prefer to be working at Croydon.38 It was indicated that her conversation with Ms Tibari and Ms Greenwood had occurred after the applicant had queried her rate of pay and it was her understanding that the issue had been completely resolved.39
 Ms O’Neil denied absolutely saying to the applicant that the respondent “did not want to lose you but if you question this…” She indicated that it was likely she had suggested that the applicant seek the assistance of the union – which was her standard of practice. 40 Ms O’Neil also stated that she had not told the applicant during the meeting on 3 September 2009 that she did not fit into the company’s structure because of the issue earlier on regarding her contract.41
 It was confirmed that the applicant had contacted her about her contract and that she had referred the applicant to Human Resources as she had played no part in the preparation of her contract. Ms Bradbury had raised her contract with her on two occasions and she had also proposed that she work full time at her contract rate. Ms O’Neil said that, as she had referred the applicant to Human Resources, she had assumed that they would have got back to the applicant. 42 It could not be recalled by O’Neil as to whether or not she had referred the applicant’s proposal regarding working full time to Head Office.43
 Ms O’Neil stated that the applicant’s performance issues, which had been raised with her by Ms Tibari and Ms Greenwood, had not been raised directly with the applicant although they were the basis on which her contract had been terminated. It was confirmed that, at the final meeting, the applicant was told she had excellent skills. 44
 With respect to the handwritten notes of the meeting on 3 September 2009, it was Ms O’Neil’s recollection that “negativity” referred to Ms Bradbury’s attitude towards the high support participants at Balwyn. She said that “values” may have been a better description. Ms O’Neil advised that the comments about her attitude during the meeting were not in relation to questioning her contract. 45
 It was confirmed by Ms O’Neil that she was aware that the applicant was dissatisfied with Human Resources and the response she had received. As she had then heard nothing further from either the applicant or Human Resources, she had assumed that the matter had been resolved. 46
 Ms Woods, Human Resources Manager with the respondent, gave oral evidence and provided a written statement with a number of attachments. 47 Ms Woods acknowledged that Ms Bradbury’s letter of engagement48 indicated that regular assessments would occur but, to her knowledge, up to 3 September 2009, the applicant had not been given any feedback regarding her performance.49
 It was confirmed by Ms Woods that, after she was briefed by Mr Doyle about the applicant’s pay queries, she had asked Ms O’Neil whether there was any connection between her recommendation to dismiss the applicant and the salary issue. 50 The reason for this was that it was in her mind – she had been briefed on the issue a week earlier.51 It was Ms Woods’ decision that it would be appropriate to terminate the applicant’s employment.52
 With respect to the discussion notes prepared for the meeting on 3 September 2009 53 compared with the handwritten notes of the meeting,54 Ms Wood agreed that there were differences in terms of the content.55
 Ms Greenwood, Assistant Program Manager Croyden with the respondent gave oral evidence together with a written statement. 56 Ms Greenwood stated that her role during the meeting on 3 September 2009 had been to take notes of what was discussed and she confirmed her notes as an accurate summary of what was said.57
 It was Ms Greenwood’s recollection that there had been no discussion about the applicant’s contract. She said that the only things that were discussed were those set out in her notes. Ms Greenwood summarised the reason for the applicant’s dismissal as the applicant not fitting in with the whole of the organisation – not just one site. It was said that the applicant was negative towards the organisation, that she did not particularly like working at Balwyn because of the high needs participants and that she regularly stated that she would prefer to be working at Croydon. 58
 Ms Greenwood explained that, prior to the meeting on 3 September 2009, the applicant had raised concerns with her about the contract and she had referred her to Human Resources. 59
 In terms of her notes of the meeting, Ms Greenwood stated that “attitude issues” meant the applicant stating a number of times that she would prefer to work at Croydon rather than at Balwyn. She had written “location is the issue” because, from the applicant’s perspective, Balwyn was the problem not Croydon. This was because of where the applicant lived and access to her family. Ms Greenwood stated that the impression the respondent had was that it was because of the participants at Balwyn that she preferred Croydon. Ms Greenwood also stated that the applicant was not told that she was being dismissed due to earlier issues she had raised. 60
 In comparing the discussion notes for the meeting and her contemporaneous notes, Ms Greenwood stated that there were inconsistencies between the two documents. 61
 Ms Wischer, on behalf of the applicant, submitted that the reason for the delay in the lodgement of Ms Bradbury’s application was due entirely to representative error. 62
 It was contended that it was clear from the evidence of the applicant that she had pursued the issue of her contract and that, at the time of her dismissal, she did not believe that the matter had been resolved. Further, Ms Wischer argued that it was the applicant’s evidence that she believed that the respondent was not happy with her pursuing the contract issue. It was also stated that there was merit in Ms Bradbury’s application. 63
 With respect to Ms Moore’s evidence, the union indicated that it had not been contested and that it showed that:
• Ms Bradbury had contacted the union for assistance specifically in relation to her dismissal and her clear intention was to pursue it.
• The applicant relied on the advice of the union.
• There was no delay in contacting the union – it was immediate – on 4 September 2009 – the day after the afternoon/after hours meeting of 3 September 2009 with a follow-up phone call on Monday 7 September 2009. The record of telephone calls was referred to. In addition, the applicant rang Fair Work Australia about her application. 64
 It was submitted by the union that the evidence showed that the applicant did not lose interest in pursuing her application or delay unnecessarily. The delay in lodging the application was said to rest solely with union office and a series of administrative errors. It was stated that the key error was the belief by the union that the timeframe was six months which contributed to a lack of urgency in responding to the applicant’s repeated requests for updates. 65
 Ms Wischer argued that the applicant had relied on the advice of the union regarding the legislative time limit. It was stated that it was unreasonable to expect applicants to know fine legal details. The union contended that it was not unreasonable for the applicant to have relied on the advice of the union. 66
 With respect to the authorities referred to by the respondent, the union submitted that they generally related to the applicants’ particular personal circumstances. In this matter, it was a case of representative error with numerous cases under the predecessor body which had found that the errors of the representative should not be visited on the applicant. 67 The union submitted that the exceptional circumstance was the extent of the unfairness that would be visited on the applicant if the extension of time was not granted. It was stated that the applicant had not contributed in any way to the delay – responsibility for this lay with the organisation which was representing her.68 The union also contended that the circumstances were unusual and not common place and that, when all of the grounds were considered, the circumstances relating to the applicant were sufficient to demonstrate exceptional circumstances.69
 In terms of prejudice to the employer, the union argued that it was not aware of any prejudice as a result of the delay in lodging the application. 70
 It was submitted by the union that the substantive application demonstrated the key grounds for a general protections claim and has prima facie merit. 71
 With regard to the consideration of fairness as between the person and other persons in a like position, it was argued by the union that the applicant was in a particular position with respect to the application in terms of which union would ordinarily represent her. The union stated that it was not aware of other employees of the respondent who had been dismissed and who had not been able to pursue a general protections application due to late lodgement. 72
 In terms of the phrase “exceptional circumstances”, the union highlighted Gleeson CJ, who was quoted in Parker v Department of Human Resources, Southern Metropolitan Region. 73 Branson J’s description of exceptional circumstances as circumstances sufficient to render it just or equitable to grant relief was also referred to.74 Further, attention was drawn to the description of the Full Court of the Federal Court in Mann v Minister for Immigration and Citizenship (2009) FACFC 180 where “exceptional” was construed as “out of the ordinary course, on 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.”75
 Finally, the union argued that there was no evidence to support the respondent’s suggestions that the general protections application was made as an afterthought. Ms Wischer indicated that the first question that had been asked was whether it could be an unfair dismissal claim. The answer was no because the applicant was on probation. However, when the matter had been properly assessed by the union, the appropriate application was a general protections application. 76
 On behalf of the respondent, Ms Anderson submitted that the applicant should not be granted an extension of time as the circumstances surrounding the delay were not exceptional in that there was nothing “unusual” or “special” in the nature of the error made by the union. 77
 It was highlighted by Ms Anderson that there was no contact between the respondent and the applicant or the union between 3 September 2009 and when it received a copy of the application on 20 November 2009. It was said that there had been no attempt to notify the respondent once the error had been discovered. In addition, the respondent argued that the 60 day time period was, in itself, very generous. It meant that the applicant had two months within which to make an application but nothing had happened during that time. 78
 With respect to the legislation, it was submitted that any further periods beyond the 60 day timeframe can only be granted if there are exceptional circumstances. Further, s.336(2) sets out an exhaustive list of factors which the Tribunal must take into account in considering whether there are exceptional circumstances. 79
 It was stated by the respondent that the onus is on the applicant to persuade the Tribunal to extend time. In addition, it was argued that “exceptional circumstances” set a higher threshold compared with the Workplace Relations Act, thereby restricting the Tribunal’s discretion. Two authorities were referred to in support of this contention. 80
 Ms Anderson argued that “representative error” was not the absolute yardstick for judging whether exceptional circumstances existed, despite the previous cases under the Workplace Relations Act. In addition, based on those cases, it was said that they embodied four key principles which included a distinction between the delay apportioned to the representative where the applicant is blameless and where the delay had been due to the applicant’s conduct. The respondent submitted that, with respect to the union’s telephone log, there were only nine communications between the applicant and the union over the 78 day period. Further, it was stated that only three of the nine contacts were initiated by the applicant in relation to this matter. 81
 The respondent also contended that the applicant was not entitled to assume that she could hand over all responsibility regarding this matter to the union. It was said that the applicant should have been aware that time periods applied – ignorance has never been an acceptable excuse. Further, it was submitted that Fair Work Australia had a user-friendly web site, that the applicant had run her own business and that she was an experienced adult working in the health sector who had a history of membership with the union and previous contact with them. 82
 Whereas representative error may have been sufficient as a valid reason under the previous legislation, the respondent argued that, under the current Act, it would not suffice. In this matter in particular, it was contended that facts do not amount to exceptional circumstances. 83
 In terms of the issue of prejudice to the employer, Ms Anderson stated that there had already been prejudice due to having had to deal with this matter. The respondent is a not for profit organisation and so should not have been put to the cost and inconvenience of defending the extension of time application. As well, there had been changes to the circumstances of some of the respondent’s key witnesses. 84
 With respect to the merits of the application, the respondent submitted that there was considerable evidence already before the Tribunal. It was stated that the evidence demonstrated that there was no merit in the applicant’s case. The applicant was surmising and imagining that she wanted to draw a line between her complaint and her dismissal. It was stated that the reason for the applicant’s dismissal had been clearly explained to her during the meeting on 3 September 2009. 85
 Further, the respondent contended that the dispute had nothing to do with the exercise of a workplace right. It was said that the applicant’s concerns about her contract rate were dealt with quickly and expeditiously. The applicant had also been invited to contact Human Resources or Ms Killmeyer if she had any further questions but she did not do so. The respondent was therefore entitled to believe that the matter had been resolved. 86
 The respondent also submitted that the application had been brought as an afterthought when it was realised that an unfair dismissal claim was not an option because she was on probation. It was said that the application was an abuse of process. 87
 In terms of fairness between the applicant and other persons in a like position, the respondent contended that it would be unfair to grant the application when others in a similar position to the applicant have not been permitted to do so. As well, it was argued that granting the application would open the door to anyone saying that the union had made a mistake. 88
 Section 366(1) provides for an application under section 365 to be lodged within 60 days after the dismissal took effect. Section 366(2) provides for Fair Work Australia to allow a further period ‘if FWA is satisfied that there are exceptional circumstances’ taking into account the following:
“(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.” 89
 Ms Bradbury’s employment was terminated by the respondent on 3 September 2009 and her application was lodged by the union on 20 November 2009. It was therefore eight days outside the 60 day time limit.
 I will deal with each of the factors set out in section 366(2) in turn.
Reason for the delay – s.366(2)(a)
 It was the applicant’s submissions that the reason for the delay was representative error due to mistakes made by the applicant’s representative, the union. These mistakes included advising the applicant that the time period was six months and her application being overlooked for a period of time. It was also argued that the applicant had not contributed in any way to the delay and had, instead, actively followed up progress with her application with the union.
 On the other hand, the respondent contended that representative error was no longer sufficient to establish a valid reason for the delay. It was also argued that, based on the union’s telephone log, the applicant had only initiated three of nine contacts during the 78 day period. The respondent was also of the view that the applicant was not entitled to assume that she could hand over the complete responsibility for her application to the union. Ignorance was said to have never been an acceptable excuse. The respondent submitted that the applicant had not provided an acceptable reason for the delay and also one which would meet the threshold of “exceptional circumstances”.
 It is clear from the evidence that following her dismissal, the applicant immediately sought the advice and assistance of her union regarding what remedy she could seek for what she believed to be the reason for her dismissal – her having raised issues regarding her contract. The telephone log which was submitted by Ms Moore, together with Ms Moore’s evidence regarding her contact with the applicant and the applicant’s evidence, suggest that the applicant did follow up the progress of her claim with the union on more than one occasion.
 The evidence also indicates that the union made a number of errors. The most serious one was advising the applicant, more than once, that the statutory time limit was six months rather than 60 days. As well, it appears that there were internal administrative mistakes including a breakdown in communication and the inadvertent overlooking of the applicant’s application. As soon as the file was located and the union became aware of the correct timeframe, the application was lodged.
 Taking all of this into account, I find that the reason for the delay in filing this application was representative error and that the applicant bears no responsibility for the delay.
Any action taken by the employee to dispute the application – s.366(2)(b)
 It was the applicant’s evidence that, up to the time of her dismissal, she was still pursuing the issue of the contract rate of pay with the respondent. As soon as she could after she was dismissed, the applicant contacted the union for advice and assistance. An application was finally lodged but there is no material before me to suggest that the applicant took other steps to dispute her dismissal other than by lodging this application. It does not appear that there was any contact made by the applicant with the respondent between her dismissal and 20 November 2009 when they received a copy of the application.
Prejudice to the employer – s.366(2)(c)
 The union argued that it was not aware of any prejudice to the employer as a result of the delay in lodging the application.
 On the other hand, the respondent submitted that they were prejudiced, least of all from having to defend the application. The fact was also highlighted that the respondent is a not for profit organisation and that the Division where the applicant was employed is reliant on government funding. Also stated was that one of the respondent’s key witnesses was on maternity leave whilst another resides and works in rural Victoria. It is not clear from the evidence whether or not both these personnel changes occurred prior to or during the eight day delay period.
 I have considered carefully all of the submissions but I have not been persuaded that the respondent has been prejudiced by the delay of eight days, over and above the usual prejudice that may accompany any grant of an extension of time.
The merits of the application – s.366(2)(d)
 It appears from the evidence before me that there are conflicting recollections of what was said during the meeting on 3 September 2009 and also the content of prior conversations between Ms O’ Neil and the applicant. In addition, the evidence seems to portray two different pictures regarding whether or not the issue concerning the applicant’s wage rate had been resolved at the time of her dismissal. Given these conflicts as to key facts in this matter, it is not possible to say that the application is without merit.
Fairness as between the person and other persons in a like position – s.366(2)(e)
 Both parties made submissions regarding this factor. There is no evidence before me that there were other persons in a like position to the applicant with respect to the respondent. I therefore do not consider that this factor has any relevance in this matter.
 Taking account of all of these factors and findings, it is necessary that I be satisfied that exceptional circumstances exist in order to grant the application and extend the 60 day time limit.
 Both parties made detailed submissions regarding what is meant by “exceptional circumstances” and the Tribunal was referred to a number of decisions by Fair Work Australia. The respondent contended that, under the Fair Work Act, there is a more restricted discretion for the Tribunal to grant such applications as the new Act sets a higher threshold for the applicant to satisfy, compared with the Workplace Relations Act. It was argued that representative error may have been sufficient under the previous Act but that it does not meet the new (higher) test of “exceptional circumstances”. The respondent submitted, further, that the representative error that has occurred in this case, did not provide an acceptable explanation for the delay. The Tribunal was taken to a number of authorities to this effect.
 On the other hand, the union argued that there were exceptional circumstances in this matter in that they were “unusual” and not “common place”. It was contended that, taking into account all of the factors, they provided the basis upon which exceptional circumstances could be found. The union stated that it would be unfair to the applicant if the application was not granted as the delay was not due to any fault by the applicant. Ms Wischer referred to a number of authorities and submitted that the application met the description of “exceptional circumstances” set out by Lord Bingham of Cornwell CJ and referred to by Gleeson CJ in Baker v R. 90
 It was common ground between the parties that the words “exceptional circumstances” have set the bar higher than it used to be under the Workplace Relations Act with respect to the exercising of discretion to grant an extension of time application. I concur with this view as did Whelan C in Parker v Department of Human Services Southern Metropolitan Region (Parker) 91 and Lawler VP in Johnson v Joy Manufacturing Co. Pty Ltd (Johnson).92
 Lawler VP in Johnson, quoted with approval the analysis of Whelan C as to what constituted “exceptional circumstances”. 93
 Whelan C, in Parker, said:
“ Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd  FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
 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)  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  FCAFC 150]
 Further to that, Lawler VP found that:
“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).” 94
 The expression “special reasons” was considered by a Full Court of the Federal Court in Jess v Scott and Others (Jess) 95 in the context of an application for an extension of time for filing a notice of appeal on the grounds of representative error. The representative error was that of a misunderstanding on the part of the applicant’s solicitor as to the date of delivery of judgement which resulted in late lodgement of the notice of appeal.96
 With respect to “special reasons”, the Full Court said that:
“What is needed to justify an extension of time is indicated in Rule 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.” 97
 The Full Court went on to find that:
“In the circumstances of the present case, which have been outlined at the commencement of these reasons, we formed the view that there were plainly special reasons which justified the making of the order sought.” 98
 I respectfully adopt the analysis of Lawler VP and Whelan C regarding the meaning of the word “exceptional” and am guided by the decision in Jess.
 The construction of “exceptional circumstances” that was adopted by Whelan C and Lawler VP is, as set out in paragraph 75 above, 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.” 99
 In applying this construction to this matter I find that the circumstances of the errors by the union (the applicant’s representative), with no contribution by the applicant to the delay, meets the test of “an exception, which is out of the ordinary course, or unusual, or special, or uncommon.” 100 It could not be said that the representative error in this matter “is regularly, or routinely, or normally encountered.”101
 Therefore, I am satisfied that, taking into account my earlier findings regarding the factors set out in s.366(2), in all of these circumstances, there are exceptional circumstances as required by s.366(2) of the Act.
 Accordingly, I am prepared to exercise my discretion to allow a further period for the filing of Ms Bradbury’s application. An order to this effect will be issued separately.
 As a conciliation conference has not yet been held with respect to this matter, it will be listed for 10.30am on Monday 9 August 2010.
1 Exhibit A2
2 Ibid at paragraphs 1 and 8
3 Ibid at paragraph 7
4 Transcript PN 130
5 Ibid PN 131
6 Ibid PN 132
7 Exhibit R3 at Attachment CW4
8 Transcript PN 133 - 134
9 Ibid PN 140 and 143 and Exhibit A2 at paragraph 11
10 Transcript PN 145 – 146 and Exhibit A2 at paragraph 14
11 Exhibit R3 at paragraphs 15 - 20
12 Transcript PN 154
13 Ibid PN 147 and 152
14 Ibid PN 153
15 Ibid PN 170 - 174
16 Ibid PN 193 - 196
17 Ibid PN 197
18 Ibid PN 198 - 208
19 Ibid PN 209 - 210
20 Ibid PN 213
21 Ibid PN 218 - 221
22 Ibid PN 222 - 233
23 Ibid PN 234 - 236
24 Ibid PN 243 - 257
25 Ibid PN 262 - 263
26 Ibid PN 264 - 265
27 Ibid PN 267 - 268
28 Ibid PN 279 - 282
29 Exhibit R2
30 Transcript PN 317 - 334
31 Exhibit A3
32 Transcript PN 430 - 432
33 Ibid PN 451 - 453
34 Ibid PN 465 and Exhibit A3 at Attachment GM3
35 Exhibit A3 at Attachment GM2
36 Ibid PN 467 - 469
37 Exhibit R1
38 Transcript PN 50
39 Ibid PN 69
40 Exhibit R1 at paragraph 4 and Transcript PN 58 and 73
41 Exhibit R1 at paragraph 5 and Transcript at PN 61 - 62
42 Transcript PN 64 - 68
43 Ibid PN 91
44 Ibid PN 70 – 72, 94 and 97 - 98
45 Ibid PN 81 - 82
46 Ibid PN 84 - 87
47 Exhibit R3
48 Ibid at Attachment CW1
49 Transcript PN 515 - 519
50 Exhibit R3 at paragraph 12 and Transcript PN 520
51 Transcript PN 521
52 Exhibit R3 at paragraph 13
53 Ibid at Attachment CW5
54 Exhibit A2
55 Transcript PN 532
56 Exhibit R4
57 Transcript PN 552 - 556
58 Ibid PN 559 - 561
59 Ibid PN 563 - 565
60 Ibid PN 566 - 576
61 Ibid PN 577 - 580
62 Exhibit A1 at paragraph 11
63 Transcript PN 597
64 Ibid PN 598 - 599
65 Ibid PN 599
66 Ibid PN 601
67 Exhibit A1 at paragraph 14
68 Transcript PN 602 – 603 and Exhibit A1 at paragraphs 19 - 21
69 Transcript PN 605
70 Exhibit A1 at paragraphs 23 - 25
71 Ibid at paragraphs 26 - 28
72 Ibid at paragraph 29
73 Ibid at paragraph 34
76 Transcript PN 606
77 Exhibit R5 at paragraphs 63 - 64
78 Ibid at paragraphs 16, 43 – 44 and Transcript PN 613 and 627 - 628
79 Ibid at paragraphs 17 – 19 and Ibid PN 614
80 Ibid at paragraphs 23-28 and Ibid PN 615 - 618
81 Ibid at paragraphs 31 – 32 and ibid PN 619 - 621
82 Ibid at paragraphs 33 – 34 and Ibid PN 622 - 624
83 Ibid at paragraphs 39 – 42 and Ibid PN 627
84 Ibid at paragraphs 45 – 52 and ibid PN 629
85 Transcript PN 630 - 631
86 Ibid PN 633 and Exhibit R5 at paragraphs 54 - 56
87 Ibid PN 634 – 637 and ibid at paragraphs 59 - 61
88 Ibid PN 637 – 638 and ibid at paragraph 62.
89 Fair Work Act 2009, section 366(2).
90 Baker v R (2004) HCA 45 at paragraph 13
91  FWA 1638 at paragraph 28
92  FWA 1394 at paragraph 28
93 Ibid at paragraphs 27 - 28
94 Ibid at paragraph 28
95 (1986 – 87) 70 ALR 185
96 Ibid at p.185
97 Ibid at p.193
98 Ibid at p.194
99 Maan v Minister for Immigration and Citizenship  FCAFC 150
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