Anthony Olsson v Skilled Offshore (Australia) Pty Ltd T/A Programmed Marine

[2016] FWC 6153

[2016] FWC 6153

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Olsson
v
SKILLED Offshore (Australia) Pty Ltd T/A Programmed Marine
(U2016/9678)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 30 AUGUST 2016

Application for relief from unfair dismissal - extension of time granted.

[1] Mr Olsson 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 Skilled Offshore (Australia) Pty Ltd T/A Programmed Marine (Skilled Offshore). At a telephone conference convened on 30 August 2016 I advised that I had concluded, on the material before me, that the application was lodged outside of the time limit specified in that section but that I was satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion

[2] The Maritime Union of Australia (the MUA) lodged the application on Mr Olsson’s behalf on 22 July 2016. That application advised that the termination of Mr Olsson’s employment took effect on 27 June 2016. The application provided the following explanation for its late lodgement:

“1. The reason for the delay is as follows:

a) I am a member of the Maritime Union of Australia (MUA), who has been acting on my behalf in relation to my dismissal. I entrusted all matters in relation to my dismissal to the MUA.

b) As the MUA’s s531 and s739 applications referred to in paragraph [3] below were dismissed by the Commission, and as I was not aware that I could bring a claim for unfair dismissal, I assumed that there was nothing further that I could do, or that the MUA would do on my behalf, to challenge my dismissal.

c) I was not aware that the MUA was continuing to consider the options for challenging my dismissal or that the MUA had sought legal advice in relation to those options. I understand that the MUA did not receive that advice until 14 July 2016.

d) I am currently travelling overseas with limited access to internet and virtually no mobile telephone coverage.

e) On 19 July 2016, I briefly checked my email and saw that I had an email from the MUA but did not read it.

f) On 20 July 2016, I read an email from the MUA dated 14 July 2016, which advised that the MUA would make an unfair dismissal clam on behalf of any members who were made compulsorily redundant and who wished to make a claim. The email said that the claim was due 18 July 2016.

g) On 21 July 2016, I contacted the MUA about making an unfair dismissal claim on my behalf.

h) On 21 and 22 July 2016, I corresponded with the MUA about why I had not contacted the MUA earlier about making an unfair dismissal claim and instructed the MUA to file this application on my behalf.

2. I first became aware of the dismissal on the date that it took effect. In light of the other facts set out in answer to this Question 1.4, this consideration should be treated as a neutral factor in deciding whether to grant an extension of time.

3. The MUA took significant actions on my behalf to dispute the dismissal, including by way of representations to the employer and making s531 and s739 applications to the Commission.

4. There is no prejudice caused to the employer by the delay, particularly given that the employer is already required to defend 24 applications, filed within time, which are based on identical factual and legal contentions.

5. The application is not without merit and reveals an arguable case.

6. A refusal to grant an extension of time would result in unfairness as between other persons in a similar position, being the 24 applicants referred to in paragraph [4] above, and me.   “ 1

[3] It is appropriate that I note at the outset that the MUA also lodged 24 other unfair dismissal applications in the week preceding the lodgement of Mr Olsson’s application. Each of these other persons were dismissed on the same day, and, apparently, on the same basis as Mr Olsson.

[4] The Employer’s Response to the application did not object to the application on the basis that it was lodged outside of the statutory time limit but asserted that the termination of all of these applicants, including Mr Olsson, were cases of genuine redundancy such that they could not be unfair.

[5] All of the applications were considered in a telephone directions conference on 10 August 2016. These applications have been listed for hearing on 24 October 2016, in Perth. That listing is, for Mr Olsson and one other person, provisional depending on the conclusion I reach with respect to the extension of time issue. On 10 August 2016 I issued directions relating to this extension of time issue. Mr Olsson was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 22 August 2016.

[6] Further information was received from Mr Olsson on 26 August 2016 through the MUA. The MUA explained the delay in this material as an oversight. Mr Olsson’s signed statement was in the following terms:

“I, Antony Olsson, of 170 Yowrie Rd. Cobargo, in the State of Western Australia, do hereby state:

1. I was employed by Skilled Offshore (Australia) Pty Ltd as an Integrated Rating from on or about 4 July 2006 to 27 June 2016.

2. Unless otherwise stated, the contents of this statement are true to my own knowledge. Where a fact is stated on the basis of my information or belief, the source of such information and belief is identified. Where I refer to information given to me by another person, I believe that information to be true and correct.

3. I am a member of the Maritime Union of Australia (MUA), who has been acting on my behalf in relation to my dismissal. I entrusted all matters in relation to my dismissal to the MUA.

4. I was aware that the MUA had made applications to the Fair Work Commission in relation to Skilled's proposal to make all of its Integrated Ratings redundant, and that those applications were not successful. I have since been informed by the MUA Industrial Officer, Ms Elyane Palmer, that those applications were made under sections 533 and 739 of the Fair Work Act 2009 (Cth) and were given matter numbers C2016/4086 and C2016/4085 respectively.

5. As those applications were dismissed by the Fair Work Commission, and as I was not aware that I could bring a claim for unfair dismissal, I assumed that there was nothing further that I or the MUA could do to challenge my dismissal.

6. I was not aware that the MUA was continuing to consider the options for challenging my dismissal or that the MUA had sought legal advice in relation to those options. I have been informed by Ms Palmer that the MUA did not receive that advice until 14 July 2016.

7. Since 8 July 2016, I have been travelling in the remote Pilar area of the Philippines on the island of Siargo. During this time I have had limited access to internet and virtually no mobile telephone coverage.

8. On 19 July 2016, I briefly checked my email and saw that Ihad an email from the MUA but did not read it.

9. On 20 July 2016, I read an email from the MUA dated 14 July 2016, which advised that the MUA would make an unfair dismissal clam on behalf of any members who were made compulsorily redundant and who wished to make a claim. The email said that the claim was due 18 July 2016.

10. On 21 July 2016, I emailed the MUA and requested that it make an unfair dismissal claim on my behalf.

11. On 21 and 22 July 2016, I corresponded with the MUA Industrial Officer, Ms Elyane Palmer, about why I had not conacted the MUA earlier about making an unfair dismissal claim.

12. On 22 July 2016, I instructed the MUA to file this application on my behalf, which it did that day.” 2

[7] Mr Olsson participated in the telephone conference and was represented by Ms Palmer of the MUA. Mr Paul represented Skilled Offshore.

[8] 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.

[9] 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.”

[10] On the information before me I have concluded that Mr Olsson’s application was made 4 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.”

[11] Mr Olsson’s reasons for the delay go to his awareness that the MUA had unsuccessfully pursued the proposed termination of his, and his fellow employees’ employment in the Fair Work Commission and that, consequent upon that unsuccessful application, he was not aware that he could challenge his dismissal or that the MUA was investigating that approach. Mr Olsson advised that he was travelling in a remote part of the Philippines from 8 July 2016 and only became aware of the application process on 20 July 2016. Mr Olsson’s lack of awareness of the capacity to make this application is clearly not representative of an exceptional circumstance. However, the situation here, where the Fair Work Commission was called upon to consider an application directed at stopping Mr Olsson and other employees from being dismissed arguably meets the requirement for an exceptional circumstance and is compounded by Mr Olsson’s remote travel location.

[12] The termination of Mr Olsson’s employment took effect on 27 June 2016 and I am satisfied that he was aware of that dismissal on that day.

[13] I have accepted Mr Olsson’s advice that, having been represented at first instance by the MUA, he had not understood that further action could be taken.

[14] Skilled Offshore does not contend that an extension of time of this magnitude would cause it prejudice.

[15] The material before me relative to the merits of the application does not permit a conclusion. Accordingly, I have regarded the merits of the application as a neutral factor in relation to the extension of time issue.

[16] Generally, considerations of fairness relative to other persons in similar positions, is a concept applied more generally consistent with the approach adopted in Telstra-Network Technology Group v Kornicki. 4 If this concept is applied generally, Mr Olsson’s circumstances may not be regarded as exceptional. However, in this case I consider that it is appropriate to have regard to the somewhat exceptional situation whereby, if an extension of time is not granted, the applications involving numerous other of Mr Olsson’s former fellow employees will proceed without his capacity to be involved in those proceedings. I consider this to represent an exceptional situation.

[17] Accordingly, I have concluded that the material before me establishes that Mr Olsson’s circumstances are exceptional so as to warrant an extension of time. An Order (PR584805) giving effect to this decision will be issued.

Appearances (by telephone):

E Palmer on behalf of the Applicant.

C Paul for the Respondent.

Hearing (Conference) details:

2016.

Adelaide:

August 30.

 1   Form F2, para 1.4

 2   Witness Statement of Antony Olsson dated 26 August 2016

 3   [2011] FWAFB 975

 4 Print P3168 (1997) 140 IR 1

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<Price code C, PR584804>