Andrew Hallam v Sepos Truck Trust T/A JS Transport

[2018] FWC 7829

[2018] FWC 7829

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Hallam
v
Sepos Truck Trust T/A JS Transport
(U2018/10470)

COMMISSIONER PLATT ADELAIDE, 21 DECEMBER 2018

Application for an unfair dismissal remedy – extension of time – application granted.

[1] Mr Andrew Hallam has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Sepos Truck Trust T/A JS Transport (JST) which his form F2 Unfair Dismissal Application advised took effect on 5 September 2018.

[2] Mr Hallam filed his application in the Commission on 10 October 2018. The application did not identify that it was made beyond the 21 days from the date of dismissal and stated that:

“I was stood down on the 5th of September due to a positive drug test, on the 28th of September I received the results of the test from the lab that were negative, I believe that 21 days should start from when the proof arrived from the lab no from an inaccurate road side test (sic). On the 28th I contacted the head office asking to be reinstated as I have done nothing wrong, was told they would contact me the following Tuesday, they have failed to contact me at all (sic).”

[3] On 1 November 2018, JST lodged a form F3 Employer Response which indicated that the dismissal occurred on 5 September 2018 and raised a jurisdictional objection on the basis that the application was lodged out of time.

[4] On 12 November 2018, my Associate corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 20 December 2018. 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 Mr Hallam and JST. The parties were directed to provide material concerning the extension of time and any documents to be relied upon by 22 November and 29 November 2018 respectively. The parties complied with the Directions.

[5] A Hearing was conducted by way of telephone conference on 20 December 2018. A sound file record of the telephone conference was kept. Mr Hallam represented himself and Ms Ellen Davis (of Counsel) represented JST with permission being granted pursuant to s.596(2)(a) of the Act. The Hearing was conducted as a Determinative Conference. Mr Hallam (who attended by hands free mobile phone) advised that he was driving a truck at the time. The Hearing was adjourned for a few minutes to allow Mr Hallam to cease driving.

[6] Mr Hallam gave sworn evidence at the Hearing, and his position is summarised as follows:

•  On 5 September 2018 whilst driving a JST truck he was subjected to a random drug and alcohol test by the Police which resulted in a positive road side test to THC. He was advised by the Police that he could not drive for 24 hours, a secondary test was undertaken which was sent to Forensic Science for analysis.

•  Mr Hallam informed his supervisors of what had occurred and he was stood down from work pending results of the secondary test.

•  Mr Hallam rejects the contention that he was dismissed on 5 September 2018.

•  Mr Hallam received an email from JST on 19 September which contained a Separation Certificate which stated his employment ceased by way of resignation on 14 September 2018. Mr Hallam complained to his employer who then varied the certificate to “employer terminated employment”.

•  On 28 September 2018 Mr Hallam received advice that the secondary sample had been analysed and no THC (or other drugs) had been detected.

•  Mr Hallam contacted JST on the same day and sought his job back. JST advised that they would get back to him, but did not.

•  Mr Hallam lodged the application on 10 October 2018.

[7] JST called Mr Jim Kirwan to give sworn evidence and submitted that:

•  Its previous contention that the employment ceased on 5 September was incorrect.

•  Mr Hallam was aware on at least 7 September that his employment was at risk.

•  Mr Hallam had been put on notice that he should expect to be dismissed.

•  JST informed Mr Hallam’s wife that he had been dismissed on 10 September 2018.

•  Mr Kirwan advised Mr Hallam that he had been dismissed during a telephone conversation on 11 September 2018.

•  The dismissal took effect on 11 September 2018.

•  The reasons for delay do not amount to exceptional circumstances.

•  Mr Hallam should have been aware he was at risk of dismissal on 7 September 2018.

•  There was no good reason to delay the lodgement of the application.

•  Mr Hallam did not dispute the dismissal prior to lodging the application.

•  No prejudice was claimed.

•  A copy of the relevant drug and alcohol policy was provided. It was submitted that the application has little or no merit as Mr Hallam had consumed cannabis the night before attending for work as a driver, this conduct was incompatible with the duties of a truck driver, and the dismissal was consistent with JST’s drug and alcohol policy.

•  Fairness between the person and other persons in a similar position weight against the granting of an extension of time.

Applicable Law

[8] Section 394 of the Act 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.”

[9] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹which 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) 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 every day 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

[10] The provision of advice that a person may be dismissed is of little value in determining when a person is dismissed, as is advice of a dismissal given to a person other than the person dismissed (in the absence of evidence that the person advised communicated the information to the Applicant).

[11] Mr Hallam advised JST that he had failed a roadside drug test. There is a dispute over whether Mr Hallam advised he had consumed Marijuana on the previous night. Mr Kirwan says he was advised by Mr Hallam on 5 September 2018 that he had consumed Marijuana the evening prior. Mr Kirwan’s diary for that day contains a notation to that effect. Mr Hallam denies this conversation. I accept the evidence of Mr Kirwan on this point.

[12] Mr Kirwan’s evidence was that he advised Mr Hallam that he would be dismissed on 11 September 2018 as evidenced by his diary note. Mr Kirwan initially gave evidence that he did not advise Mr Hallam of the effective date of the dismissal. Subsequently in answer to a question from the Respondent’s Counsel Mr Kirwan advised he thought the dismissal would take effect immediately. Mr Hallam denies the conversation of the 11 September 2018 took place at all. I accept Mr Kirwan’s evidence that Mr Hallam was advised that he would be dismissed on 11 September but I find that Mr Kirwan did not advise Mr Hallam when the dismissal took effect.

[13] Mr Hallam he received the Separation Certificate on or about 19 September 2018. That document advised that Mr Hallam’s employment ceased on 14 September 2018.

[14] Based on the information contained in the Separation Certificate, I find that the dismissal took effect from 14 September 2018, and Mr Hallam first became aware of the date of effect on or about 19 September 2018.

[15] This unfair dismissal application by Mr Hallam was made 5 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[16] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[17] Mr Hallam did not become aware of the date his dismissal took effect until on or about 19 September; some 5 days after the dismissal took effect.

[18] It appears that Mr Hallam was expecting that the Police’s secondary test would establish that THC was present in his system, this is consistent with his admission to his employer that he had smoked cannabis the night before the test. However Mr Hallam was fortunate that the secondary (evidentiary) test received on 28 September 2018 did not identify any drugs in his system. By this stage, JST had determined the disciplinary outcome based on a breach of the prohibition of the consumption of illicit or non-prescribed drugs. Mr Hallam was not advised of the detailed reasons for his dismissal.

[19] Mr Hallam complained to JST about his dismissal on 28 September 2018 and provided the negative drug test results from the Police. Mr Hallam appears to have presumed that the suspension from duty having been based on the initial drug screen, JST would have reconsidered their position based on the drug analysis and reinstated him. Mr Hallam says he talked to Mr Chris James who was in charge of OHS. Mr Hallam asserts the Mr James undertook to consider the matter and would respond to him. Mr Hallam waited a week and lodged his application having not received a response. Mr James was not called to give evidence.

[20] In my view Mr Hallam has provided a creditable explanation for the delay.

Whether the person first became aware of the dismissal after it had taken effect

[21] Mr Hallam became aware of the dismissal on 11 September 2018, but was not aware of the dismissal’s effective date until 19 September 2018.

Any action taken by the person to dispute the dismissal

[22] Mr Hallam disputed the dismissal, provided new information to JST on 28 September 2018 and sought that he be reinstated.

Prejudice to the employer (including prejudice caused by the delay)

[23] There is no submission that the granting of an extension of time represents prejudice to JST.

The merits of the application

[24] In terms of the merits of the application, a review of the facts and consideration of the applicable drug and alcohol policy indicate (at a preliminary level) that Mr Hallam has an arguable case that his dismissal was harsh, unjust or unreasonable. This weighs in favour of an extension of time.

Fairness as between the person and other persons in a similar position

[25] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[26] For the reasons I have set out above, I am satisfied that Mr Hallam’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and the application will accordingly be referred for Conciliation. An Order² reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

A Hallam the Applicant.

E Davis on behalf of the Respondent.

Hearing (Conference) details:

2018.

Adelaide:

December 20.

Printed by authority of the Commonwealth Government Printer

<PR703472>

1 [2011] FWAFB 975.

2 PR703473.