Andrew Jurss v Southern Cross Ceramics Pty Ltd

[2020] FWC 706

[2020] FWC 706

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Andrew Jurss
v
Southern Cross Ceramics Pty Ltd
(C2019/7336)

DEPUTY PRESIDENT BOYCE SYDNEY, 14 FEBRUARY 2020

Application to deal with contraventions involving dismissal — application filed 136 days out of time — no exceptional circumstances within the meaning of s.366 of the Fair Work Act 2009 — application dismissed.

Introduction

[1] On 30 November 2019, Mr Andrew Jurss (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth)(Act). The Applicant did so by filing a Form F8 with the Commission. The Applicant claimed that his employment with Southern Cross Ceramics Pty Ltd (Respondent) was terminated contrary to Part 3-1 of the Act (by the Respondent) on 26 June 2019.

[2] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow. 1 The 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect.

[3] The Applicant acknowledges that he lodged his application 136 days outside of the statutory time limit. To be within time, the Applicant should have lodged his Application on or before 17 July 2019.

Matters to be taken into account

[4] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are provided for by s.366(2) of the Act, which reads:

“366 Time for application

…

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position”.

[5] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 2 A decision whether to extend time under s.366(2) involves the exercise of a discretion.3

[6] Section 366(2) makes clear that each of the matters set out therein need to be taken into account in assessing whether there are exceptional circumstances. The meaning of “exceptional circumstances” in s.366(1) was considered by a Full Bench of the (then) Fair Work Australia in Nulty v Blue Star Group Pty Ltd  4 (Nulty)as follows:

“[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.” (emphasis added)

[7] The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR. 5

[8] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no individual factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional. 6

Conclusion

[9] On 11 February 2020, I convened a hearing to determine whether to allow the Applicant an additional period of time within which to lodge his application. Ms A Jurss (the Applicant’s wife) appeared as an unpaid agent on behalf of the Applicant. Mr I Oglesby (Corporate Services Manager) appeared on behalf of the Respondent.

[10] Having considered the evidence filed prior that hearing, as well as the oral submissions made by Ms Jurss on behalf of the Applicant, I find that there are no exceptional circumstances that give rise to the exercise of my discretion to grant an extension of time. I have made this finding by considering the criteria under s.366 of the Act. Reasons for this decision were given on transcript ex tempore at the hearing, and those reasons apply as if they were set out in this decision.

[11] In view of the foregoing:

a) I decline the Applicant’s request for an extension of time to file this application; and

b) the Applicant’s application to deal with contraventions involving dismissal is to be dismissed.

[12] An order to that effect will follow this decision.

DEPUTY PRESIDENT

Appearances:

Ms A Jurss for the Applicant.

Mr I Oglesby appeared for the Respondent.

Hearing details:

A hearing was held in Sydney, with video-link to Melbourne, on 11 February 2020.

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009 (Cth) s 366(1) and (2).

 2   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 3   Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

 4   [2011] FWAFB 975.

 5   [2019] FWCFB 2384 at [16] – [20].

 6   Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 at [13]; see also Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).