Adam Leonard v Palcove Pty Ltd T/A Cheap as Chips

[2014] FWC 4865

[2014] FWC 4865

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adam Leonard
v
Palcove Pty Ltd T/A Cheap as Chips
(U2014/10335)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 21 JULY 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 18 July 2014 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision.

[2] On 25 June 2014 Mr Leonard lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief in relation to the termination of his employment with Palcove Pty Ltd T/A Cheap as Chips (Cheap as Chips).

[3] In that application, Mr Leonard advised that his dismissal took effect on 12 May 2014. He advised that the Fair Work Commission (FWC) should take into account, the following information in considering whether to accept his application out of time.

“1. I didn’t receive my Employment Separation Certificate until the 29/5/2014.

2. Got told by a lawyer I had up to a year to make a claim.

3. Had to put my Great Grandmother in a nursing home.” 1

[4] The application was referred to me for consideration. On 27 June 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 18 July 2014. Mr Leonard was required to provide a witness statement and a copy of any document relied upon, by 11 July 2014.

[5] The Employer’s Response (Form F3) to the application confirmed that Cheap as Chips objected to an extension of time.

[6] Mr Leonard did not comply with the requirement to provide material to the Fair Work Commission (FWC) and to Cheap as Chips by 11 July 2014. On 17 July 2014 my Associate requested urgent advice from him in this respect. Mr Leonard did not respond to this request.

[7] The extension of time issue was considered through a telephone conference on 18 July 2014. A sound file record of this conference was kept. Mr Leonard participated in this conference. Cheap as Chips was represented by Ms Bull, as Human Resources Advisor.

[8] The advice provided to Mr Leonard on 27 June 2014 stated:

“If you fail to comply with these directions the Senior Deputy President may conclude that you no longer seek to pursue the application and close the file accordingly. Alternatively, the Senior Deputy President may determine the matter on the material before him.”

[9] Notwithstanding the absence of any written material from Mr Leonard, I provided Mr Leonard with the opportunity to explain the circumstances of his application and have considered the extension of time issue on all of the material before me.

[10] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[11] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[12] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. The application was lodged some 23 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mr Leonard’s circumstances can be regarded as exceptional for the purposes of this subsection.

[13] The information Mr Leonard has provided does not adequately explain why the application could not have been lodged within time. The information before me establishes that the primary reason for the delay in lodgement of the application was that Mr Leonard was not aware of the 21 day time limit. Mr Leonard advised that he understood, from a discussion which he had with an unnamed lawyer at some time before the termination of his employment that he had six or twelve months in which to lodge an unfair dismissal application. Additionally, Mr Leonard advised that, after the termination of his employment he contacted his union and a law firm who both suggested he should wait until he received his employment separation certificate before taking further action. Mr Leonard advises that he received that employment separation certificate on 29 May 2014. He advised that, after he received that certificate, he contacted his union again and was told that his union would return his call, but this did not happen. Mr Leonard did not again contact that law firm after he received the separation certificate and he advised that he became aware of the 21 day time limit only when he came into the Fair Work Commission offices on 25 June 2014 to lodge his application. Finally, Mr Leonard may well have put his Great Grandmother in a nursing home but I do not consider this an acceptable reason for the delay. Consequently, I am not satisfied that Mr Leonard has identified to me a satisfactory reason for the delay.

[14] Mr Leonard agrees that he was made aware of the termination of employment decision at a meeting on the day upon which it took effect, being 12 May 2014. In this respect he agrees that, while his application asserts that he was notified of his dismissal on 12 June 2014, this date was recorded in error. Mr Leonard advises that he subsequently received the formal termination of employment letter and the employment separation certificate on 29 May 2014.

[15] The information provided to me does not establish that Mr Leonard challenged the termination of his employment other than through this application.

[16] I am not satisfied that the granting of an extension of time would prejudice the respondent in this matter. However, this, of itself, cannot form the basis for an extension of time.

[17] In terms of the merits of the application, there is nothing before me which indicates that the termination of Mr Leonard’s employment was inherently unfair. However, because of the paucity of information available to me I have regarded the merits as a neutral factor in the consideration of the extension of time issue.

[18] Considerations of fairness relative to persons in similar circumstances to Mr Leonard’s do not support an extension of time.

Conclusion

[19] In Nulty v Blue Star Group Pty Ltd 2 a Full Bench addressed the concept of exceptional circumstances in the following terms:

“[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.

[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.”

[20] Mr Leonard’s lack of awareness of the 21 day time limit cannot represent an acceptable reason for the delay or an exceptional circumstance. There is nothing in the information that he has provided to me which demonstrates that he took appropriate and necessary steps to pursue this application in a timely manner. None of the other circumstances relied upon by Mr Leonard can be described as exceptional.

[21] For the reasons I have set out above, Mr Leonard’s circumstances do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR553337) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

A Leonard on his own behalf.

A Bull representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

July 18.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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