1
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Carolyn Baramilis
v
Residual Property Pty Ltd
(U2015/2221)
DEPUTY PRESIDENT SAMS SYDNEY, 18 FEBRUARY 2015
Application for relief from unfair dismissal - application lodged ‘out of time’ - consideration
of ‘exceptional circumstances’ - incorrect information from employer - allegations of
misconduct - merits of claim not strong - ‘exceptional circumstances’ not made out -
application dismissed.
[1] This decision arises from an application to the Fair Work Commission (the
‘Commission’) for an extension of time for the lodgement of an application for an unfair
dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). Ms Carolyn
Baramilis (the ‘applicant’) was dismissed from her employment with Residual Property Pty
Ltd (the ‘respondent’) on 18 December 2014. The applicant lodged her application on 9
January 2015. The Act mandates a 21 day time limit for initiating an application for unfair
dismissal. The application was therefore lodged one day outside of the statutory time limit set
out in s 394(2)(a) of the Act.
[2] In determining this application, the Commission has had regard to the Form F2
Application for an Unfair Dismissal Remedy and the Form F3 Employer’s Response filed on
21 January 2015. On 27 January 2015, the Commission wrote to the applicant outlining the
matters I am obliged to consider under s 394(3) of the Act and asking her to provide a
statement, addressing those matters within 14 days. The applicant provided a two page written
statement on 8 February 2015. Having considered this material, I issued an order refusing an
extension of time and dismissing the application on 10 February 2015. What follows are my
reasons for doing so.
STATUTORY PROVISIONS AND PRINCIPLES
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REASONS FOR DECISION
AUSTRALIA FairWork Commission
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[3] The relevant legislative framework, guiding the exercise of the Commission’s
discretion in relation to applications of this kind, is set out 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.’
[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star
Group Pty Ltd [2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General
Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held
to have the same meaning where it appears in other sections of the Act, most notably in s
394(3). In Nulty, a Full Bench of the Commission 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.”
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[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.
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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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional
circumstance. Indeed, unfortunately, it would seem to be all too common for
dismissed employees to be unaware of the time limits imposed in relation to making
an application for an unfair dismissal remedy or a general protections FWA
application. The parliament has chosen to condition the discretion to extend time for
making such applications on the existence of “exceptional circumstances”. In doing so
the parliament must be presumed to have proceeded on the basis that an employee who
is aggrieved at being dismissed ordinarily ought be expected to seek out information
on any remedy they may have in a timely fashion such that delay on account of
ignorance of the statutory time limit is not, of itself, an exceptional circumstance.
[15] A finding that there are “exceptional circumstances”, taking into account the
matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to
extend time is enlivened. That is, even when “exceptional circumstances” are
established, there remains a discretion to grant or refuse an extension of time. That
discretion should be exercised having regard to all the circumstances including, in
particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a
consideration of whether, given the exceptional circumstances found, it is fair and
equitable that time should be extended [Endnotes not reproduced].’
[5] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3)
above, must be considered when deciding whether or not ‘exceptional circumstances’ have
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been established. Even if ‘exceptional circumstances’ are established, this is merely the
jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for
filing an unfair dismissal application. In other words, ‘exceptional circumstances’ may be
found to have existed, but the Commission may still refuse to exercise a discretion to accept
the application ‘out of time’; See: Nulty at para [15]. A recent Full Bench of the Commission
in Lombardo v Commonwealth of Australia [2014] FWCFB 2288 succinctly described the
Commission’s decision making process under s 394(3) of the Act as: ‘The test for granting an
extension of time involves both a broad discretion and a high hurdle of ‘exceptional
circumstances.’ I turn now to each of the criteria set out under s 394(3) of the Act.
CONSIDERATION
Reasons for the delay (s 394(3)(a))
[6] The applicant was employed as a Casual Bookkeeper. In her written statement, she
said that the letter of termination identified 17 December 2014 as her date of termination
when it was actually 18 December 2014. This was acknowledged by the respondent in its
Form F3 Employer’s Response. Her Employment Separation Certificate also contained
inaccurate details in relation to her final payments. This was amended on 24 December 2014,
but was still inaccurate. A letter of termination correctly identifying her as having been
terminated on 18 December 2014 was emailed to her, at her request, on 29 December 2014.
She asserted that she should have received the correct letter of termination on the date of her
termination.
[7] The applicant explained that she had initially been unaware of the 21 day statutory
time limit. At some point she had contacted Commission staff, who had told her that she
needed to lodge her application within 21 days of her dismissal. She had incorrectly assumed
that she could file on 9 January 2015. She explained that had she lodged her claim
immediately, she would have been using incorrect information initially supplied by the
respondent. However, she wanted to make sure that the evidence she provided was accurate
and complete. For these reasons, she had an unnamed third party evaluate her application and
she had to wait for them to do so. In any event, she thought she had lodged the application in
time on 9 January 2015. This was preferable to ‘rushing it through’ earlier. Nevertheless, she
believed that the lodging of her application one day late, did not change the facts of her
dismissal.
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[8] I am unable to conclude that the reasons identified by the applicant constitute
‘exceptional circumstances’ within the meaning of s 394(3) of the Act. Legal or third party
assistance or representation is not required to file an application for a remedy for an unfair
dismissal and, indeed, parties frequently lodge their own application and represent themselves
in such matters before the Commission. While I note that the applicant had provided
approximately ten pages of additional written submissions at the time of lodgement, the only
formal requirement was for her to lodge the relevant application form. The Form F2 available
from the Commission, is simple and straightforward and extensive guidance is provided on
the Commission’s website as to the lodgement of such an application.
[9] Nor did the applicant identify the ‘incorrect information’ provided by the respondent
which required her to wait before lodging her application. If she is referring to the
inaccuracies in her letter of termination and her Employment Separation Certificate, I cannot
see how this would have any bearing on the information required in her application, especially
in light of my finding above that the applicant was aware she was dismissed on 18 December
2014. While inaccuracies in relation to her Employment Separation Certificate could
conceivably create difficulties for the applicant in gaining access to benefits, they do not
constitute any bar on the lodgement of an unfair dismissal application.
[10] Lastly, I note that ignorance of the statutory time limit does not constitute an
‘exceptional circumstance’ within the meaning of s 394(3) of the Act; See: Nulty at para [14].
[11] In all the circumstances, the Commission cannot be satisfied that the applicant’s stated
reason/s, either individually or cumulatively, for filing her application ‘out of time’ constitute
‘exceptional circumstances’, as contemplated by the statute.
When the person first became aware of the dismissal after it had taken effect (s
394(3)(b))
[12] Although the applicant complained that the letter of termination incorrectly identified
the date of her dismissal as 17 December 2014, her application and her written statement both
make clear that she understood she was dismissed on 18 December 2014. The Form F3
Employer’s response also identified 18 December 2014 as the date of the applicant’s
dismissal. I find that the applicant was first aware of her dismissal on 18 December 2014.
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Any action taken by the person to dispute her dismissal (s 394(3)(c))
[13] The applicant referred to contacting the respondent on a number of occasions to have
her letter of termination and Employment Separation Certificate amended. However, she
made no reference to disputing the dismissal with her employer. I find that the first concrete
action taken by the applicant to dispute her dismissal was the lodgement of this application on
9 January 2015.
Prejudice to the employer (s 394(3)(d))
[14] The applicant did not expressly address this criterion. Given the circumstances and the
short delay in filing the application, this is a neutral factor in my consideration of whether to
grant an extension of time.
Merits of the application (s 394(3)(e))
[15] In a number of written statements attached to her Form F2 application, the applicant
acknowledged doing her own study and work for a personal client in the respondent’s office
on Sunday 30 November 2014. However, she had also met Ms Vanessa Croaker,
Administration Manager, when she was there. The applicant claimed that this issue was not
raised with her again for 18 days. She said that she had never been advised that staff were
unable to attend the office alone.
[16] The applicant said that on 18 December 2014 she had been directed to attend a
disciplinary meeting and she was offered the opportunity to bring a ‘witness’. At the meeting,
Mr Don Logan (General Manager) asked what the applicant had been doing when she
attended the office alone on a Sunday. The applicant initially thought that he meant the
weekend immediately prior to the meeting, when she had attended the office to collect some
personal items, although it soon became clear that he was referring to Sunday 30 November.
Mr Logan had explained that this was a serious issue. She had replied that she had used her
own materials when working on company files at home and that this was no different to
working in the office for personal clients. The applicant was advised that she was to be
terminated for misconduct immediately.
[17] The applicant made reference to a disability affecting her leg and difficulties that this
caused her in relation to fire drills. She had taken exception to a comment made by Ms
Croaker about her being a ‘high risk’ in relation to her working at the respondent’s office
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alone. She also made reference to a personal dispute between her and Ms Croaker. The
applicant complained of derogatory comments in relation to her disability and the fact she had
not been allocated a closer parking spot when the respondent obtained new parking.
[18] The applicant made a range of complaints about bullying and discriminatory treatment
by Ms Croaker and Mr Logan. She said that she had been left in the office alone on number of
occasions and that this justified their summary dismissal. She also referred to using her own
computer equipment and internet access for the respondent’s benefit. She listed a number of
supposedly unauthorised charges made by the Sales Manager on the company credit card,
which she had raised with management. No action was taken by management. Other staff
members had been permitted to sit in the office and make person phone calls in relation to
matters such as purchasing a new property, browsing non-work related internet sites, taking
long lunch hours and falsifying time sheets.
[19] The applicant said that the respondent had no right to ask for the computer password
she had placed on her work computer and said that she had refused to give it to staff of the
respondent after she had been terminated. The respondent said that the material on the
computer was the property of the respondent and that the applicant was obliged to provide the
relevant password. I agree with this submission. The applicant provided transcripts of emails
in which she said that she had been ‘threatened’ and ‘bullied’ by Mr Logan in relation to this
issue. Having perused the emails between the applicant, Mr Logan and Mr Georges Pentecost
(also of the respondent’s office) which were annexed to her application, I can find no cogent
evidence of bullying or threatening conduct in relation to retrieving the password.
[20] The applicant provided a two page statement listing ‘Benefits I brought to the
Company’. I observe that there was nothing in this document that was outside the normal
realm of duties for an employee in her position.
[21] In its Form F3 response, the respondent said that applicant would have been aware that
she would not have been allowed to remain in the office alone since January 2013, when this
policy was implemented by Mr Logan. She had been reminded of this on a number of
occasions. When Ms Croaker found the applicant in the office on 30 November 2014, she was
in possession of two shopping bags with arch lever files which did not belong to the
respondent. Ms Croaker confronted the applicant, who admitted that she was doing work for
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personal clients. When asked about this in the meeting of 18 December 2014, she repeatedly
claimed that she was only in the office doing her studies and that she was not in the office
alone, as her daughter was to pick her up shortly.
[22] It is appropriate to note that a consideration of the merits of an application at such an
early stage in the proceedings and without the benefit of tested evidence, will only ever be on
a prima facie basis; See: Kyvelos v Champion Socks Pty Limited Print T2421, 10 November
2000. However, it seems clear that the applicant was dismissed for misconduct in that she
failed to follow the employer’s reasonable direction not to attend or remain at the offices of
the respondent alone and that she was using the respondent’s resources for her personal
bookkeeping business. Given that she was dismissed for misconduct, rather than for
performance related issues, the so-called ‘benefits’ she brought to the respondent’s business
are not relevant to my consideration of this case.
[23] I also consider the numerous complaints of differential treatment and allegations of
misappropriation levelled at other staff were merely an attempt by the applicant to divert
attention from her own conduct. Strangely, the applicant hinted that some of these staff were
from ‘the same church’ as Mr Logan. I am not sure what inference I was expected to draw
from this observation. I am satisfied, on a prima facie basis, that there were valid reasons for
the applicant’s termination and am able to make a prima facie assessment that the applicant’s
prospects of success are not particularly strong. This factor weighs against an extension of
time being granted.
Fairness as between the person and other persons in a similar situation (s 394(3)(f))
[24] The applicant did not expressly respond to this criterion, although she made a number
of allegations as to differential treatment (see above). For the reasons I have given above (see
para [23]), I do not consider the applicant’s position in relation to another person in a similar
position is unfair. Her dismissal appears to be a conventional summary dismissal on the
grounds of misconduct.
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CONCLUSION
[25] Having considered all of the matters which the Commission is required to take account
under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which
would warrant my granting an exception to the statutory time limit for the lodgement of this
unfair dismissal application. The circumstances, as disclosed by the material submitted by the
applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The
application for an unfair dismissal remedy must be dismissed. I confirm my order of 10
February 2015.
DEPUTY PRESIDENT
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