Antony Smith v AgriExchange Pty Ltd T/A Vitor

[2015] FWC 1287

[2015] FWC 1287

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Antony Smith
v
AgriExchange Pty Ltd T/A Vitor
(U2015/2018)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 25 FEBRUARY 2015

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

[1] Mr Smith 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 the AgriExchange Pty Ltd T/A Vitor (Vitor). At a telephone conference convened on 24 January 2015 I advised that I had concluded 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] Mr Smith’s application was lodged on 5 January 2015. In that application Mr Smith advised that the termination of his employment occurred on 9 December 2014. Mr Smith advised that he considered that he had lodged the application within the 21 day time limit.

[3] On 16 January 2015 my Associate corresponded with both Mr Smith and Vitor and advised that the extension of time issue would be considered through a telephone conference on 24 February 2015. Substantial information about the extension of time issue was provided to the parties. Mr Smith was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 17 February 2015.

[4] Additional information was received from Mr Smith in which he referred to email advice he received from the Fair Work Commission (FWC) on 5 January 2015 advising of receipt of a payment for an unfair dismissal application but indicating that no application had been received. Mr Smith attached email advice from the FWC “e-filing” facility to its Adelaide Registry office on 30 December 2014, which indicated that the application was lodged on that date.

[5] The Employer’s Response to the application confirmed the correct name of the business. I have utilised the discretion available in the FW Act to amend the application accordingly. The Employer’s Response also confirmed that Vitor opposed the application on the basis that it was lodged outside of the statutory time limit and also asserted that the application could not be pursued on the merits because the termination of Mr Smith’s employment was a case of genuine redundancy.

[6] Mr Smith participated in the telephone conference. Mr Phillips from Vitor also participated 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 6 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 1 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.”

[9] Mr Smith’s reason for the delay was straightforward in that he asserted that he had lodged the application electronically on 30 December 2014. He asserted that the FWC electronic lodgement facility had recognised that lodgement and he had paid his lodgement fee accordingly. My consideration of the material available to me confirms Mr Smith’s version of events. I have previously found the FWC lodgement system gives rise to some issues of unreliability in this respect and believe that as a consequence, the benefit of any doubt should go to Mr Smith. On that basis, if the application was lodged electronically on 30 December 2014, it was within the 21 day time limit. Given that the FWC was not open for business from 31 December 2014 to 5 January 2015, that latter date would be the first time that a problem with Mr Smith’s electronic lodgement could have been identified. Mr Smith responded to the 5 January 2015 FWC inquiry about his application on that same day. I have considered this reason for the delay, and regard these circumstances as exceptional. It is clear from Mr Smith’s application that he was aware of the termination of his employment on the day this termination took effect. I have noted that, apart from the late lodgement of this application, Mr Smith did not pursue other actions so as to challenge the termination of his employment. I am not satisfied that an extension of time of this magnitude would prejudice the Respondent but this, of itself, does not provide a basis for an extension of time.

[10] In terms of the merits of the application, I have noted that Vitor assert that Mr Smith was made redundant such that the termination of his employment could not be regarded as unfair. Section 385 of the FW Act states:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[11] A genuine redundancy is defined in s.389 in the following terms:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[12] Information or evidence to determine that issue is not before me at the present time and I consider that issue ought most properly be the subject of a separate proceeding. However, Mr Smith may elect to take advice on the extent to which his circumstances meet the requirements for a genuine redundancy in s.389. In this context I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

[13] I regard considerations of fairness relative to other persons in similar positions as a neutral factor in relation to the extension of time.

[14] Accordingly I have concluded that the material before me establishes that Mr Smith’s circumstances should be regarded as exceptional so as to warrant an extension of time. The application will be listed for further consideration of the redundancy issue on this basis and an Order (PR561338) giving effect to this decision will be issued.

Appearances (by telephone):

A Smith on his own behalf.

C Phillips for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

25 February 2015.

 1   [2011] FWAFB 975

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<Price code C, PR561337>