Warner v Jandakot Flight Centre Pty Ltd [2017] FWC 179 (10 January 2017) [2017] FWC 179 [Note: a correction has been issued to this document] FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Lynette Gail Warner v Jandakot Flight Centre Pty Ltd (U2016/12822) COMMISSIONER PLATT ADELAIDE, 10 JANUARY 2016 Application for relief from unfair dismissal [1] Ms Lynette Warner lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Jandakot Flight Centre Pty Ltd (Jandakot). [2] Ms Warner’s application advised that her dismissal took effect on 30 June 2016 and that she did not realise her dismissal may have been unfair until 13 October 2016. [3] On 5 December 2016, my Associate corresponded with Ms Warner and Jandakot and advised that the extension of time issue would be considered at a telephone conference on 10 January 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Ms Warner was directed to provide a statement concerning the extension of time and any documents to be relied upon by 2 January 2017. Jandakot was invited to file any material in reply by 9 January 2017. [4] Ms Warner provided a written submission and a number of attachments including: ● An email to the Fair Work Ombudsman dated 21 October 2016 which contained a time line of events leading to the lodgement of the unfair dismissal claim; ● a Letter of Retrenchment from Jandakot dated 24 June 2016 ● Email to Joel Livingstone of the Fair Work Ombudsman dated 22 August 2016 including correspondence between Ms Warner and Jandakot re the underpayment of wages claim. [5] The written submissions filed on behalf of Ms Warner are summarised as follows: ● Ms Warner was initially employed as a Receptionist in 2010. ● In February 2016 Ms Warner approached the Fair Work Ombudsman to assist her to determine her wage entitlements. ● Ms Warner was in discussion with Jandakot concerning her wage entitlements. ● On 24 June 2016 Ms Warner was advised by Jandakot that she would be retrenched and her last day of work would be 30 June 2016. Jandakot paid the redundancy and notice entitlements in instalments. ● Post dismissal Ms Warner determined that she had been underpaid by Jandakot and sought to resolve that matter with the involvement of the Fair Work Ombudsman. ● Ms Warner determined that she would not lodge an underpayment of wages claim until Jandakot concluded paying her entitlement instalments and put her request for assistance ‘on hold’. The last instalment was paid on 11 August 2016. ● The Fair Work Ombudsman sought to schedule a mediation in late September/ early October 2016 in respect to the alleged underpayment of wages. Jandakot did not consent to the mediation. ● On 13 October 2016 Ms Warner received advice that her dismissal was by way of redundancy (not retrenchment) and Ms Warner believed that the process was flawed and would not be regarded as a genuine redundancy. ● On 21 October 2016 Ms Warner lodged her unfair dismissal application. [6] On 9 January 2016, Jandakot filed a Form F4 – Objection to unfair dismissal application. Jandakot opposed the hearing of the claim on the basis that Ms Warner’s application was out of time, the dismissal was a case of genuine redundancy, and the dismissal was consistent with the small business Fair Dismissal Code. [7] In respect of the out of time issue, Jandakot opposed Ms Warner’s request for an extension of time. Jandakot contended that it had openly consulted with Ms Warner regarding the dismissal. [8] Jandakot submitted that the discussions concerning Ms Warner’s remuneration had no bearing on its decision to dismiss her. Its decision was based on the economic state of the aviation industry and the need to downsize to ensure the survival of the business. [9] Jandakot contended the dismissal was a genuine redundancy as part of a downsizing process, and disputed the version of events contained in paragraph 3.2 of the Form F2 lodged by Ms Warner. [10] A hearing was conducted by way of teleconference on 10 January 2017. A sound file record of the telephone conference was kept. [11] Ms Warner represented herself, and Mr Darrell Cole represented Jandakot. [12] At the teleconference Ms Warner advised that she was expecting that the 24 June 2016 meeting was to discuss her wage claim, but instead she was retrenched. At the time Ms Warner believed she was dismissed as a result of her seeking increased wages. Ms Warner stated that she did not believe she was unfairly dismissed until she obtained advice from the Fair Work Ombudsman in October 2016 that a retrenchment was the same as a redundancy. Ms Warner claimed that she was not appropriately consulted. [13] Mr Cole relied on his written submission. Applicable Law [14] Section 394 relevantly states: “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.” [15] Ms Warner’s unfair dismissal application was made 92 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended. [16] I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 1 which stated: “[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.” Consideration [17] Whilst Ms Warner has actively pursued her underpayment of wages claim, it appears the first occasion that Ms Warner took any steps to contest the dismissal was on 21 October 2016 when the application was lodged, some 113 days after her dismissal. The length of the delay in this case is considerable. [18] The applicant needs to provide a credible explanation for the entire period of the delay. 2 [19] Ms Warner contends that she believed (up until 13 October 2016) that her ‘retrenchment’ was different to a redundancy and at this point she realised that the process undertaken by Jandakot was flawed. Ms Warner did not account for the further one week delay before the application was lodged. [20] This assertion of new information flies in the face of Ms Warner’s statement that in June 2016 she believed she was unfairly dismissed because she sought a wage increase. [21] During the teleconference Ms Warner inferred that the unfair dismissal claim was delayed pending receipt of the entitlement instalments from Jandakot. At other times Ms Warner stated she did not consider making the claim until the information received on 13 October 2016. Her submissions on reason for the delay were not convincing. I am unable to identify any barrier which prevented the application being made within the statutory 21 day period. [22] There is no submission that the granting of an extension of time represents prejudice to Jandakot. [23] Considerations of fairness relative to other persons in similar positions, is not relevant in this matter. [24] In terms of the merits of the application, as there is an unresolved dispute whether the redundancy was genuine within the meaning of s.394 of the Act, I have regarded the merits of the matter as a neutral factor with respect to the extension of time issue. Conclusion [25] For the reasons I have set out above, I am not satisfied that Ms Warner’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order 3 reflecting this decision will be issued. COMMISSIONER Appearances (by telephone) : Ms Warner, on her own behalf. Darrel Cole on behalf of the Respondent. Hearing (Conference) details: 2017. Adelaide: January 10. 1 [2011] FWAFB 975 2 Cheval Properties Pty Ltd t/as Penrith Hotel v Smither [2010] FWAFB 7251 ; (2010) 197 IR 403. 3 PR589246 Printed by authority of the Commonwealth Government Printer <Price code A, PR589245>