| [2017] FWC 2402 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Liselotte Geary
v
Royal Automobile Club of Victoria (RACV) Limited T/A RACV
(U2017/3419)
COMMISSIONER RYAN |
MELBOURNE, 2 MAY 2017 |
Application for an unfair dismissal remedy - extension of time.
[1] The Applicant was dismissed from her employment with the Respondent on 3 March 2017 and filed the application in this matter with the Commission on 29 March 2017. The application was filed outside of the 21 day time limit set be s.394(2)(a) of the Act. The application can only proceed if the Commission grants an extension of time pursuant to s.394(2)(b) having regard to the requirements of s.394(3). The Respondent opposes the grant of an extension of time.
[2] Sections 394(2) and (3) provide as follows:
“394 Application for unfair dismissal remedy
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.”
[3] The relevant authority for considering whether exceptional circumstances exist is Nulty v Blue Star Group P/L 1 which 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.”
[4] It is appropriate to observe that s.394(3) sets out an exhaustive list of the matters that must be taken into account. The language of s.394(3) (and its general protections involving dismissal counterpart, s.366(2)) does not require or even permit the Commission to take into account “any other matters that the FWC considers relevant” which is a requirement in both s.387(h) and s.392(2)(g), nor does the language of s.394(3) (and its general protections involving dismissal counterpart, s.366(2)) require or even permit the Commission to “take into account all the circumstances of the case” which is a requirement in s.392(2).
[5] In the present matter s.394(3)(f) is not a relevant criteria as there are no other persons in a like position to the Applicant. However each of the other criteria in s.394(3) are relevant and must be taken into account. It is important to note that the criteria which must be taken into are for the sole purpose of determining whether exceptional circumstances are present which would then permit the Commission to exercise a discretion to grant an extension of time. I approach the term “exceptional circumstances” having regard to the decision in Nulty v Blue Star Group.
[6] In the present matter the Applicant had until 24 March 2017 in which to file her unfair dismissal application.
[7] On 23 March 2017 the Applicant lodged an unfair dismissal application with the Commission using the on-line lodgement service (OLS). The Applicant received an acknowledgement from the OLS which identified that her unfair dismissal application had been lodged at 12.00AM on 23 March 2017 and provided her with a Lodgement reference number of 20112.
[8] On 29 March 2017 the Applicant emailed the Melbourne Registry of the Commission in relation to her unfair dismissal application. The text of the email is as follows:
“Good morning,
I am writing in relation to the Unfair Dismissal Claim I lodged on 23 March 2017.
See attached pdf for lodgement time, date and reference number 20112.
Strangely the lodgment didn’t generate an email confirming receipt of it, nor an opportunity to pay the fee.
I’ve just ring to confirm it was lodged and it doesn’t appear in the system.
Could you please look into this matter? The 21 days have now passed, but I hope that my claim is not affected by what must be a technical error (I lodged online).
I look forward to hearing from you.”
[9] On 30 March 2017 staff at the Commission telephoned the Applicant to respond to her email of 29 March 2017. The Commission’s file note of the conversation reads as follows:
A: Called the applicant and discussed concerns in relation to lodgement (see email attached) . The applicant attempted to lodge the application via OLS on 23 March however the matter was not successfully lodged. The applicant sent an email on 29 March to query whether the application had been received. I explained to the applicant that as the application was not successfully lodged via OLS the matter will be deemed as lodged on 29 March 2017. As this makes the application out of time, I advised the applicant that the matter will still be listed for conciliation however if the respondent raises this as a jurisdictional objection the applicant can use this as evidence to demonstrate their attempt to log on 23 March 2017.
[10] When lodging on-line an applicant is required to either pay the fee or to complete and submit a fee waiver as part of the lodgement process. It is clear from the Applicant’s email on 29 March 2017 that the Applicant didn’t pay the fee at the time of lodgement but rather was waiting for a request to pay the fee. Failure to pay the required fee or to complete and submit a fee waiver means that the on-line lodgement has not been completed and this should prevent the OLS from sending a lodgement notice to the Applicant.
However, what the OLS system should do and what it did do are two very different things.
[11] I note that this is the second matter that I have dealt with where the OLS has issued a lodgement notice to an applicant in circumstances where the on-line application form had not been completed, in particular through the applicant failing to either pay the required fee or complete and submit a fee waiver. In the earlier matter Kelly v Atanaskovic Hartnell Corporate Services P/L, t/a Atanaskovic Hartnell 2 the decision at first instance was appealed and the Full Bench in Atanaskovic Hartnell Corporate Services P/L, t/a Atanaskovic Hartnell v Kelly3 dismissed the appeal.
[12] The practical issue arising from the OLS issuing to the Applicant a lodgement notice is that there is nothing in the lodgement notice which even hints at or suggests that there may be any difficulty with the lodgement of the unfair dismissal application. The Commission as currently constituted has been made aware that a time stamp of 12.00AM on a lodgement notice is generally an indicator that the information is corrupt in some way (this could be because there is incomplete/insufficient information recorded). However, no one receiving a lodgement notice timed at 12.00AM would have any reason to suspect that their on-line application contained corrupt information.
[13] In the present matter it is clear that shortly after the Applicant was contacted by Commission staff on 30 March 2017 the Applicant filed her application in this matter. The Commission has no record of the time of the conversation between the Applicant and the Commission staff member on 30 March 2017 but the application was entered into the Commission’s system at 12.17pm on 30 March 2017.
[14] The Commission is satisfied that the Applicant has provided an acceptable reason for the delay in filing her application on 30 March 2017.
[15] The Applicant first became aware of her dismissal before it took effect therefore this criteria is not relevant.
[16] The Applicant contends that she questioned and argued against her dismissal at the time she was advised of her dismissal but does not contend that she took any action to dispute the dismissal after the dismissal meeting had occurred other than to file an application with the Commission. In all of the circumstances of this matter this criteria has neutral value in determining whether or not exceptional circumstances exist.
The Respondent does not contend that it will suffer prejudice as a result of the grant of an extension of time to the Applicant. However the ‘mere absence of prejudice to the employer is an insufficient basis to grant an extension of time’. 4
[17] The most that can be said of the merits of the case in the present matter is that the Applicant has an arguable case and the Respondent has an arguable defence to that case. Both the Applicant and the Respondent addressed the merits of the case in their submissions but the Commission did not embark on a detailed consideration of the merits of the case and no evidence was led before the Commission by either the Applicant or the Respondent. In the present matter this this criteria has neutral value in the consideration as to the existence of exceptional circumstances.
[18] Taking into account each of the relevant criteria under s.394(3) the Commission is satisfied that exceptional circumstances exist which warrant the Commission exercising its discretion to grant the Applicant an extension of time. The reason for the delay in filing her application on 30 March 2017 is a criteria which weighs very heavily in favour of a grant of an extension of time and there are no criteria which weigh against the grant of an extension of time to the Applicant.
[19] The Commission allows the Applicant to file her unfair dismissal application on 30 March 2017.
[20] As the application in this matter was filed within the time determined pursuant to s.394(2)(b) the application will be referred for further proceedings.
COMMISSIONER
4 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
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