Arthur Wynniatt v Lock Supplies Pty Ltd T/A Key Mobile Locksmiths
[2015] FWC 5172
•31 JULY 2015
| [2015] FWC 5172 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Arthur Wynniatt
v
Lock Supplies Pty Ltd T/A Key Mobile Locksmiths
(U2015/8731)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 31 JULY 2015 |
Application for relief from unfair dismissal - extension of time not granted.
[1] Mr Wynniatt 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 Lock Supplies Pty Ltd T/A Key Mobile Locksmiths (Key Mobile Locksmiths). At a telephone conference convened on 30 July 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion
[2] Mr Wynniatt’s application was lodged on 23 June 2015. I note that this application was signed by Mr Wynniatt on 15 June 2015. In that application Mr Wynniatt advised that his employment was terminated with effect from 29 May 2015. The application asked that the following information be taken into account.
“I was informed verbally on 29-5-15 but did not receive a written notice until 15-6-15 which states my employment stops 26-6-15.
This whole situation has been very stressful and confusing for me.” 1
[3] On 1 July 2015 my Associate corresponded with both Mr Wynniatt and Key Mobile Locksmiths and advised that the extension of time issue would be considered through a telephone conference on 30 July 2015. Substantial information about the extension of time issue was provided to the parties. Mr Wynniatt was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 23 July 2015.
[4] Despite being reminded of that requirement, no further information was received from Mr Wynniatt.
[5] The Employer’s Response to the application confirmed the correct name of the business. I have utilised the discretion available to me to amend the application accordingly. That response indicated that Key Mobile Locksmiths opposed the extension of time and asserted that the termination of Mr Wynniatt’s employment took effect on 22 May 2015. Key Mobile Locksmiths also advised that it was a small business and that the termination of Mr Wynniatt’s employment was a genuine redundancy.
[6] Mr Wynniatt participated in the telephone conference. In that conference he advised that he had not understood the requirement that he provide a witness statement. Notwithstanding this, Mr Wynniatt detailed his position relative to the extension of time issue in the conference. Mr Paget, the proprietor of Key Mobile Locksmiths also participated in this conference. 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] The limited information before me confirms that Mr Wynniatt and Mr Paget disagree over whether Mr Wynniatt was advised of the termination of his employment on 22 May 2015 or 29 May 2015. It is clear that Mr Wynniatt’s employment terminated on either of these two days. It is equally clear that the Employment Separation Certificate forwarded to Mr Wynniatt some weeks later specified 26 June 2015 as the termination date on the basis that this took into account the payment made to him in lieu of notice. Mr Wynniatt agrees that, by the time he received that Employment Separation Certificate the termination of his employment had clearly taken effect. I have not found it necessary to determine whether the termination of Mr Wynniatt’s employment took effect on either 22 May 2015 or 29 May 2015 because, in either event, the application is made 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 2 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] In considering these reasons for the delay I have taken into account the entirety of the period from 29 May 2015 when Mr Wynniatt asserts his employment termination took effect. His lack of awareness of the 21 day time limit cannot represent an acceptable reason for the delay or an exceptional circumstance. Given that he agrees that he had access to the internet at home with the consequent capacity to lodge an application electronically or to obtain telephone advice about the issue, I am not satisfied that his asserted inability to access a library for some days represents an exceptional circumstance or an acceptable reason for the delay. Mr Wynniatt’s advice that further days elapsed because he did not know where the nearest letterbox was, is farcical.
[11] Finally, I have taken into account Mr Wynniatt’s advice that the termination of his employment had been very stressful for him. There is no evidence of a medical nature which substantiates that Mr Wynniatt was medically unable to pursue the application within the 21 day time.
[12] Consequently, I am not satisfied that Mr Wynniatt has established that the reason for the significant delay in this matter represented exceptional circumstances.
[13] Mr Wynniatt became aware of the termination of his employment on the day on which it took effect. Apart from this application he did not take other action to dispute the termination of her employment.
[14] I do not consider that an extension of time of this magnitude would prejudice Key Mobile Locksmiths but this, of itself, does not provide a basis for an extension of time.
[15] In terms of the merits of the application, the information before me does not enable a definite conclusion, particularly with respect to whether the specific requirements for a genuine redundancy were met. Accordingly I have regarded the merits of the application as a neutral factor relative to the extension of time.
[16] Considerations of fairness relative to other persons in similar positions provide for different conclusions about an extension of time.
[17] Accordingly I have concluded that the material before me does not establish that Mr Wynniatt’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR569944) giving effect to this decision will be issued.
Appearances (by telephone):
A Wynniatt on his own behalf.
J Paget for the respondent.
Hearing (Conference) details:
2015.
Adelaide:
July 30.
1 Form F2, para 1.4
2 [2011] FWAFB 975
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<Price code C, PR569943>
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