Andrew Hopkins v Transfield Services (Australia) Pty Ltd T/A AW-Coatings SA
[2015] FWC 8389
•10 DECEMBER 2015
| [2015] FWC 8389 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Andrew Hopkins
v
Transfield Services (Australia) Pty Ltd T/A AW-Coatings SA
(U2015/15054)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 10 DECEMBER 2015 |
Application for relief from unfair dismissal - extension of time not granted.
[1] Mr Hopkins has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Transfield Services (Australia) Pty Ltd T/A AW-Coatings SA (AW-Coatings).
[2] Mr Hopkins’ application was lodged on 16 November 2015. In that application he advised that his employment was terminated with effect from 29 September 2015. He acknowledged that the application was lodged outside of the 21 day time limit and asked that the following information be taken into account:
“I did not make an application before the 21 day time requirement as I was not aware of what happened after I left a few week later. The hired 5 marine painters and also Neil is still working and he ask for voluntary redundancy over 6 month ago.” 1 (sic)
[3] On 19 November 2015 my Associate corresponded with both Mr Hopkins and AW-Coatings and advised that the extension of time issue would be considered through a telephone conference on 10 December 2015. Substantial information about the extension of time issue was provided to the parties. Mr Hopkins was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 3 December 2015.
[4] Additional information was received from Mr Hopkins. This additional information stated:
“Dear Senior Deputy President O'Callaghan
As per your request for my reason for lodging after 21 days
I only found out in nearly November that Transfield had hired 5 casual staff this is the same number as was made redundant. I believe Transfield waited for the 21 days to pass then rehired so people can't lodge for unfair dismissal. the fact that they are saying the new employees where hire to ASC south and are only work at ASC north makes no difference it's still Transfield and when I came to hand back my security pass Tony Evans assured me that as soon as any work came up on ether north or south site he would call me and get me back in this was not the case. I feel I was unfairly dismissed as they have hired more staff to replace the people they had made redundant. There was no new contract for people to be hired to it was just on going work from the original contract. I hope I have answered what you was looking for if you need anything further please call me on xxxx xxxxxx.
Kind regards
Andrew Hopkins” 2
[5] The Employer’s Response to the application indicated that AW-Coatings opposed the extension of time and maintained its position that the termination of Mr Hopkins’ employment was as a result of a genuine redundancy.
[6] Mr Hopkins represented himself in the telephone conference. Mr Costi, represented AW-Coatings in this conference. My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.
[7] 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.”
[8] On the information before me I am satisfied that the application was made some 27 days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. 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 3 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) 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.”
[10] The AW-Coatings’ position is that Mr Hopkins’ redundancy was a consequence of the progressive reduction in work. Further, that in response to a request from the client that AW-Coatings provide additional staff to meet a particular requirement, five casual employees were engaged in early November and concluded their employment around 27 November 2015. This request was made one month after Mr Hopkins had been made redundant.
[11] In Mr Hopkins’ case, I have attached substantial significance to the extent to which he was one of four or five employees who were made redundant at that time. Mr Hopkins makes a variety of assertions about the circumstances of his redundancy. I am not satisfied that the information before me establishes that Mr Hopkins’ redundancy was a sham. Mr Hopkins’ disagreement with why he was selected for redundancy does not make the redundancy circumstance any less legitimate. Further, Mr Hopkins had the opportunity to dispute the termination of his employment within the 21 day time limit. He approached AW-Coatings management and, to the extent that he was dissatisfied with the response given to him, he could have then pursued an application within the statutory time limit. Additionally, the information before me indicates that it is perfectly conceivable that AW-Coatings, which is an engineering contractor, could have been asked, one month after Mr Hopkins was made redundant to increase its labour force for a short term so as to undertake a particular job. In this respect Mr Hopkins may have been disappointed that he was not selected for that temporary employment, but this does not then provide a satisfactory reason for the late lodgement of the application.
[12] Mr Hopkins was made aware of the termination of his employment on the day on which it took effect. Whilst I acknowledge that he took steps to challenge his selection for redundancy by approaching AW-Coatings management, I do not consider that this provides a basis for an extension of time for the lodgement of this application.
[13] Notwithstanding the AW-Coatings submissions to this effect, I am not satisfied that the quantum of the extension of time of this magnitude would prejudice the Respondent, but this, of itself, does not provide a basis for an extension of time.
[14] In terms of the merits of the application, the information before me indicates that AW-Coatings’ work on the project site on which Mr Hopkins was engaged, had substantially reduced. Mr Hopkins acknowledged that proposed redundancies were openly discussed and I am satisfied that there was a genuine basis for Mr Hopkins redundancy. The information before me does not enable a definite conclusion about whether each of the specific requirements necessary to meet the definition of a genuine redundancy in s.389 of the FW Act were in fact satisfied. Notwithstanding this, the information provided to me by AW-Coatings has not indicated any clear breach of normal redundancy obligations. Furthermore, Mr Hopkins has not demonstrated to me that the circumstances here would have enabled him to have continued his employment with AW-Coatings as distinct from having the possibility of a return to work, after he had been made redundant. Accordingly I have regarded the merits of the application as a factor which do not favour an extension of time.
[15] Considerations of fairness relative to other persons in similar positions provide for different conclusions about an extension of time. I have considered the extent to which Mr Hopkins’ position is comparable with that considered by Sams DP in Cross and others v Banana Coast Community Credit Union Ltd T/A BCU. 4 In that matter, the Deputy President considered each of the factors referenced in s.394(3). With respect to the applicant’s subsequent awareness that their termination of employment may not have been a result of a genuine redundancy he concluded:
“[51] In my view, this is a rare and unusual case. I am satisfied that an honestly and reasonably held belief that an earlier redundancy may not have been genuine, and the belief is based on plausible information, may constitute ‘exceptional circumstances’ for the purposes of s 394(3) of the Act. It follows that I reject Ms Paterson’s submission that a dismissal cannot be unfair based on matters that occur after the dismissal took effect.”
[16] The Deputy President later recognised the significant component of the delay in that matter which related to inaction on the part of the applicant’s union and characterised this as representative error. He ultimately concluded that the requisite circumstances for an extension of time had been made out.
[17] I note that the Deputy President’s decision in that matter was the subject of an appeal. In that decision 5 the Full Bench concluded that:
“[19] In our view, the decision under appeal properly considers each of the factors required to be considered under s.394(3) of the Act. The Deputy President considered the representational error in the context of the factor whether the employees took action to dispute their dismissals - not in relation to the reasons for the delay. We see no error in this approach. The arguments of error are not strong and essentially amount to disagreement with the consideration of the factors required to be taken into account. We have not been satisfied that it is in the public interest to grant permission to appeal. Permission is denied and the application for permission to appeal is determined accordingly.”
[18] I have also considered the comparability of Mr Hopkins’ position with that adopted by Acton SDP in Marwaha v La Trobe Financial Services 6 where the Senior Deputy President summarised the reasons for the delay in the following terms:
- “[7] The reasons for Ms Marwaha’s delay in making her UDR application were, in summary, that:
- she was unaware of the FWC’s unfair dismissal jurisdiction until early June 2014; and
- she became aware in early June 2014 that LFS had advertised on 30 May 2014 for an employee to perform her former duties, with a similar advertisement having been placed by LFS in March 2014.
[8] Ms Marwaha also advanced as reasons for her delay in making her UDR application that:
- she was, and is, suffering from ill health, with various reasons for her ill health;
- she did not have access at her home to the internet; and
- she was concerned she would not receive favourable references from LFS if she made a UDR application.”
[19] The Senior Deputy President dismissed that application on the basis that she was satisfied that exceptional circumstances were not established.
[20] I do not consider that Mr Hopkins’ circumstances are directly comparable with either matter. Those circumstances may be more comparable with those considered by Simpson C in Rowley v RSL (QLD) War Veterans Homes Ltd T/A RSL Care 7 where the Commissioner concluded:
“[21] The principle reasons given for the delay relied upon by the Applicant is she was misled at the time of her termination about her redundancy and subsequent information gained post the redundancy points to the redundancy not being genuine. Having considered the material put before me I am inclined to accept the Respondents submission that the new material that has come into the knowledge of the Applicant well outside the statutory timeframe for filing an unfair dismissal application is not substantial information on which a reasonable inference could be drawn to support a view that the Applicants redundancy was not genuine. On that basis I conclude the reason given for the delay is not an exceptional circumstance.”
[21] I have concluded these decisions reflect a common recognition that the onus is on an applicant to take timely action to challenge a disputed employment termination. And that it is only in rare and unusual circumstances that the employment of other personnel, some time after an applicant has been made redundant, would provide a basis for an extension of time.
[22] I have concluded that the material before me does not establish that Mr Hopkins’ circumstances should be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR574703) giving effect to this decision will be issued.
Appearances (by telephone):
A Hopkins on his own behalf.
Z Costi for the respondent.
Hearing (Conference) details:
2015.
Adelaide:
December 10.
1 Form F2, para 1.4
2 Email from Applicant, 3 December 2015
3 [2011] FWAFB 975
4 [2012] FWA 7681
5 [2012] FWAFB 10165
6 [2014] FWC 5234
7 [2014] FWC 5326
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