Adrian Lund v Golding Contractors Pty Ltd T/A Golding Contractors

[2015] FWC 5229

[2015] FWC 5229

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adrian Lund
v
Golding Contractors Pty Ltd T/A Golding Contractors
(U2015/8052)

SENIOR DEPUTY PRESIDENT DRAKE PERTH, 30 JULY 2015

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 section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mr Lund and the respondent ended on 7 May 2015. Mr Lund lodged his application at the Fair Work Commission on 30 May 2015. Mr Lund’s application was lodged 2 of days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Lund. I wrote to him on 15 June 2015 outlining the matters I was required to consider by the Act and asked him to provide a statement addressing these matters within 14 days. Mr Lund's representative provided a comprehensive statement on 24 June 2015. The respondent provided an employer response on 7 July 2015. I issued an Order allowing Mr Lund’s application for an extension of time on 27 July 2015.

[4] The relevant legislative framework for the exercise of the Fair Work 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.

[5] 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]

[6] For exceptional circumstances to arise as contemplated by s394 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 s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[7] 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)

[8] The reason Mr Lund provided for his delay in lodgement was exclusively representational error. Mr Lund’s representative, Mr Matthew Southwell, provided the following explanation:

“On 20 May 2015, the Applicant contacted us regarding a potential unfair
dismissal claim against the Respondent.

During the telephone conversation, our representative who was speaking with
the Applicant made an error when taking instructions and wrote down on our
internal client card that the Applicant was dismissed on 14 May 2015, not 7
May 2015.

After we took instructions the Applicant promptly agreed to our terms,
instructed us to proceed with preparing his claim and immediately deposited
$67.20 into our account for the lodgement fee. We scheduled a time for him to
discuss his matter with Tom Hakkinen, our independent contractor on the
same day.

Attached to this letter is the lodgement free transaction paid by the Applicant
on 20 May 2015, the email acceptance of our terms and conditions at
12:52pm on 20 May 2015 and along with it, the return of a signed authority
form, also dated 20 May 2015.

The Applicant gave us clear instructions to proceed with his claim on 20 May
2015.

Given the contact card stated the Applicant was dismissed on 14 May 2014,
Tom prioritised his cases accordingly and contacted the Applicant on 29 May
2015 to discuss his claim and complete the Form F2. There had been
inactivity and a failure by Tom to act promptly on the matter.

During discussions, Tom reviewed the termination letter and became aware
that the Applicant was actually terminated on 7 May 2015. As soon as the
error was identified, the Form F2 was promptly finalised and lodged,
notwithstanding being late by 2 days.

There has been no prejudice to the employer.

The merits of the application should also be considered in granting an
extension of time.

The Applicant’s application was lodged late solely due to our error and not
due to the Applicant. We respectfully request that the Applicant’s matter be
considered for conciliation as the Applicant’s ability to proceed in the
circumstances should not be prejudiced due to our error.”

[9] I am sympathetic to these circumstances. I am not persuaded that the failings of Mr Southwell’s staff should be visited upon Mr Lund. I am not of the opinion that representational error is ordinary, usual or common.

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

[10] Mr Lund became aware of the end of his relationship with the respondent on 7 May 2015.

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

[11] Mr Lund disputed his dismissal by lodging this application.

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

[12] I was satisfied that there would be no greater prejudice to the respondent caused by his 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)

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

fairness as between Mr Lund and other persons in a similar position-S.394(3)(f)

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

[15] 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 I allowed the application. I was satisfied that Mr Lund’s circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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