REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nyssa Kyte
v
Fire Trucks Australia
(U2016/5110)

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] I listed a telephone conference between Ms Kyte and the respondent on 5 April 2016. Ms Kyte was represented by her friend Ms Byrnes. In that conference Mr Cooper, who appeared for the respondent in his role as Managing Director, conceded that the date of termination of employment was 7 December 2015 (although the letter of termination suggested that termination of employment had taken place earlier on 29 October 2015). I understood that Mr Cooper did not oppose an extension of time for lodgement. I asked him to confirm the date of termination of employment as 7 December 2015 in writing which he did on 20 May 2016.

[3] The relationship between Ms Kyte and the respondent ended on 7 December 2015. Ms Kyte lodged her application at the Fair Work Commission (the Commission) on 4 March 2016. Her application was lodged 64 days outside the statutory time limit.

[4] When determining this application I had before me the Application for Unfair Dismissal lodged by Ms Kyte. In her application at paragraph 1.4 Ms Kyte stated:

“My representative and myself had a meeting to discuss the situation with Jason Cooper and we had many conversations about trying to resolve the problem ourself. Mr Cooper had told us that he would seek advice and get back to us which was his way of delaying the situation. He never made any contact to tell us where I stood. And it caused me to have a mental breakdown. I was unable to get my head right or clear to do anything.”

[5] I wrote to Ms Kyte on 15 March 2016 outlining the matters I was required to consider by the Act and asked her to provide a statement addressing these matters within 14 days. Ms Kyte provided the following response:

“I Nyssa Kyte am writing in relation to my lodgement of unfair dismissal application. There are a number of reasons into which I have lodged a late application and I’m writing them explaining why and hoping you will grant me this late lodgement as I feel my form employer has done me wrong.

1. First of my former employer Jason Copper had dismissed my employment in October but I had not been notified until December, to which it was already past the 21 days where an application for unfair dismissal must be lodged.

2. Myself and Miss Byrnes who is my representative had meted with Mr Copper only a week after reviving my dismissal to discuss with him why it was not a true dismissal as he had said I had abandoned my employment when I had supplied a doctors certificate, in this meeting we had agreed for the changes to be made after Mr Copper had gotten some advice from someone else I assume his HR officer. In which Mr Copper kept delaying this and would not return Miss Byrnes calls or emails or even texts if he did reply it was always with I’m still waiting so he delayed it even more knowing I could not take him for unfair dismissal since it had be delayed.

3. I had a mental breakdown due to this and had shut myself off from relationships and everything else I couldn’t think straight or get my head right to fill out any kind of paperwork I was in no state to file for unfair dismissal but I apologise as I have never done anything like this and I’m lost and confused at how this all works, Miss Byrnes was the one who did the research and found out that I could file a late lodgement for unfair dismissal so here I am begging for you to grant this for me as I’m a complete mess over what my former employer has done to me and how he has gone about it all. We tried to work it out for ourselves and were given the run around and stuffed around by his actions.

I would like to thank you for reading over my lodgement and hope that you will continue to help and grant me a late lodgement so that I can clear my name and not have this go against my future employment once I can get myself stable enough to even look for another job. What Mr Copper has done is unfair and unjust I only hope you can help me by getting a true and justified dismissal from Fire Trucks Australia and not have my name dragged through dirt as I was a great employee and a hard worker for that company. Thank you once again and I will wait to hear back from you hopefully with some good news.”

[6] After the telephone conference of 5 April 2016 Ms Byrne, on behalf of Ms Kyte, provided medical certificates as to the state of Ms Kyte’s mental health following termination of employment.

[7] I considered the submissions of Ms Byrne and the medical evidence provided and issued an Order allowing Ms Kyte’s application for an extension of time on 26 May 2016.

[8] The relevant legislative framework for the exercise of the Commission’s discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.

[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 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) 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) 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) [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]

[10] 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.

[11] I considered the various criteria to which my attention is directed by s.394(3) of the Act.

reason for the delay-s.394(3)(a)

[12] The reasons Ms Kyte provided for her delay in lodgement were:

• delay by Mr Cooper in responding to her requests to resolve the situation directly between them, and



• her ill-health following termination of employment.

[13] I was persuaded that Ms Kyte’s difficulties were out of the ordinary, unusual or uncommon.

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

[14] Ms Kyte became aware of the end of her relationship with the respondent on 7 December 2015.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[15] Ms Kyte disputed her dismissal by discussing the issue directly with the respondent and lodging this application.

prejudice to the employer-s.394(3)(d)

[16] I was satisfied that there would be no greater prejudice to the respondent caused by Ms Kyte’s application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[17] Merit was a neutral issue in my consideration of this application.

fairness as between Ms Kyte and other persons in a similar position-s.394(3)(f)

[18] There was no issue of fairness in relation to any other person in a similar position.

[19] Having considered all of the matters to which my attention is directed by the Act I was satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis extended the time for lodgement of the application. Ms Kyte’s circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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