Andrew Klomp v Mechanical Project Services Pty Ltd

[2015] FWC 2734

[2015] FWC 2734

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Klomp
v
Mechanical Project Services Pty Ltd
(U2015/2581)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 21 APRIL 2015

Application for relief from unfair dismissal.

[1] Mr Andrew Klomp alleged that the termination of his employment by Mechanical Project Services Pty Ltd (MPS) on 18 December 2014 was unfair.

[2] Mr Klomp’s unfair dismissal application lodged on 23 January 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 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]

(a) the reason for the delay;

[5] Mr Klomp said that he was shocked to lose his job. He said that his difficult personal circumstances were made more difficult because he lost his job. Also, the failure of his employer to pay him all his entitlements upon termination placed him in a difficult position financially. It was his evidence that he did not receive his full entitlements until 16 January 2015.

[6] Further, he needed to move house and he was living with a relative. During this time another relative died. He said his focus was on finding another job. Further, his car was not working and he needed to get it fixed. Mr Klomp said that these matters were a greater priority for him than lodging an unfair dismissal claim.

[7] Mr Klomp said he contacted the Fair Work Commission a couple of weeks after his dismissal and asked them about filing an unfair dismissal claim. He accepted that he was told about the 21 day limit for filing an application. It was his evidence that he did not know how to make an application and he did not have internet access and had to use his parent’s.

[8] Mr Rod Isard, the Director and General Manager of MPS, doubted Mr Klomp’s financial difficulties because he was paid over award wages. He also submitted that given the number of vacancies for Mr Klomp’s type of work, he should not have had any difficulty finding work. He also submitted that Mr Klomp was very switched on and given he knew about the time limit, he should have given this priority.

[9] I note that Mr Klomp knew about the 21 day time limit prior to the time limit passing, yet he still did not give his application priority. This weighs against extending time.

[10] Each of the matters relied upon by Mr Klomp themselves do not provide a reasonable explanation, however, when put together, they do provide a reasonable explanation for why Mr Klomp did not file his application in time. This weighs in favour of extending time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[11] Mr Klomp was aware of the dismissal when it took effect and had the full 21 days to lodge his application. This weighs against extending time.

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

[12] Mr Klomp disputed the reasons relied upon by MPS to dismiss him at the time. He took no other action to dispute his dismissal other than lodging his claim. This criterion is neutral.

(d) prejudice to the employer (including prejudice caused by the delay);

[13] MPS submitted that it would be prejudiced if an extension of time were granted. It submitted that it was not aware the dismissal would be disputed until it got the application. It submitted that the company had moved on and it would now have to expend time and effort in defending the claim. I do not consider that the prejudice that MPS refers to would weigh against extending time.

(e) the merits of the application;

[14] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. However, as I am unable to conclude that Mr Klomp’s claim has no prospects of success, this weighs in favour of granting an extension of time.

(f) fairness as between the person and other persons in a similar position.

[15] No submissions were made in relation to this criterion.

Conclusion

[16] It would be an unusual situation for there to be a finding that there were exceptional circumstances where the applicant admitted that he knew of the 21 day time limit and did not give his unfair dismissal application the priority it required. However, this is one of those unusual cases.

[17] It is not unusual for a person to suffer negative consequences as a result of losing his or her job. However, in Mr Klomp’s case, these negative consequences were not limited to simply facing financial difficulties. Mr Klomp’s relationship suffered and he had to move accommodation. While not having internet access at home is an issue for many people, Mr Klomp’s ability to access alternative internet access was limited because his car was not working. I consider, on balance, that the combination of all these matters when taken together lead to a finding that there are exceptional circumstances.

[18] Having found that there are exceptional circumstances, I will exercise my discretion to extend time. The application will now be referred to conciliation.

DEPUTY PRESIDENT

Appearances:

Mr A Klomp on his own behalf.

Mr R Isard on behalf of the Respondent.

Hearing details:

2015.

Melbourne and Perth via telephone:

20 April.

 1   [2011] FWAFB 975.

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