Ashley Walkom v Mcdonald's Australia Ltd T/A Mcdonalds

[2014] FWC 7290

[2014] FWC 7290

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ashley Walkom
v
Mcdonald’s Australia Ltd T/A Mcdonalds
(U2014/9173)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 16 OCTOBER 2014

Application for relief from unfair dismissal.

[1] This application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act) was determined by me following my consideration of the written submissions and other materials provided by Mr Walkom.

[2] The relationship between Mr Walkom and the respondent, however characterised, ceased on 5 July 2013. Mr Walkom lodged his application before the Fair Work Commission on 9 September 2014. His application was lodged 18 days outside the statutory time limit.

[3] I issued an Order refusing the application for an extension of time and dismissed Mr Walkom's application on 1 October 2014 1.

[4] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Walkom with supporting materials and the submissions of the South West Sydney Legal Centre lodged on behalf of Mr Walkom dated 8 September 2014.

[5] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(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.

[6] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 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]

[7] For exceptional circumstances to arise as contemplated by s394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[8] Mr Walkom’s submission in support of his application was as follows:

“Reason for the Delay

1. The filing of my Application for Unfair Dismissal (‘the Application’) was delayed due to a number of reasons, including:

a. I began to experience stress and anxiety as a result of the bullying at work in about April 2014. This continued beyond my resignation date and beyond the date the Application was filed. Please refer to Medical Certificate of Dr O. Gupta dated 24 September 2014.

b. Shortly after my resignation, I suffered illness, injury resulting in surgery and related convalescence.. In addition to the physical restrictions this placed on me, it caused me to be emotionally and psychologically upset and depressed. This also further exacerbated my mental state as outlined in ‘a’ above. Please refer to:

i. Medical Certificate Dr O. Gupta, 9.7.14

ii. Xray shoulder, 11.7.14

iii. Discharge Referral note, 11.7.14

iv. Medical Certificate Prince of Wales, 11.7.14

v. Medical Certificate NSW Health, 16.7.14

vi. Discharge Referral, 18.7.14 (2 pages)

vii. Operation Report, 18.7.14 (2 pages)

viii. Medical Certificate NSW Health, 19.7.14

ix. Medical Certificate NSW Health dated 30.7.14

x. Centrelink Medical Certificate, Dr O. Gupta - unfit 31.8.14 to 12.9.14

xi. Xray Clavicle dated 10.9.14

xii. Centrelink Medical Certificate, Dr O. Gupta - unfit 12.9.14 to 30.9.14

c. I relied upon the Shop, Distributive & Allied Employees Union (SDA) to advise me on and assist me with my employment rights, only to be told it could not assist me because I resigned. The SDA did not give me proper advice about my rights.

d. I sought assistance from the Fair Work Ombudsman and the Fair Work Commission (FWC) when I spoke to them by phone on 1 or 2 September 2014. This was the first time I was informed about the concept of constructive dismissal. I was informed that my resignation could be a constructive dismissal and that I could have an unfair dismissal claim. However the person on the phone made a strong point of telling me that they could only give information and that I should call Legal Aid to get proper legal advice regarding this.. The FWC advised me not to make the claim on my own.

e. I relied upon Legal Aid NSW to advise me on and assist me with my employment rights only to be told that they were too busy to do so. No advice or assistance was given to me. They referred me to South West Sydney Legal Centre.

2. The first time I was able to receive proper legal advice on my rights was when I spoke to a solicitor at South West Sydney Legal Centre on 9 August 2014.

3. For a period of time after I resigned, the Employer falsely led me to believe that it would do something constructive about the complaints and concerns I had expressed, by transferring me to a suitable store. Please refer to the Chronology and copy email from Mandy Cole.

4. I submit that:

a. The reasons for the delay are reasonable, credible and account for the whole period of the delay; and

b. The reasons for the delay, both independently and in conjunction with each other, are out of the ordinary, unusual and uncommon.

Prejudice to the employer

5. The Application is only 18 days late. I submit that this short delay does not cause the employer any unfair disadvantage.

6. The factual matters relevant to the Application have been put to the relevant Employer’s officers and managers on various occasions. Accordingly, the facts outlined in the Application will not take the Employer by surprise.

7. The Employer’s staff, relevant to the matters raised in the Application, continue to be employed by the Employer.

8. By virtue of the matters in paragraphs 3, 4 and 5, the delay will not prejudice the Employer in preparing and presenting its case.

9. The Employer is a very large multi-national organisation with more than sufficient resources at its disposal to defend the Application.

The merits of the Application

10. As the chronology demonstrates, I was subjected to ongoing harassment and bullying and the refusal and failure by the Employer’s officers and management to take constructive action to address my complaints and concerns regarding this.

11. I invested over 5 years of my working life with the Employer. I progressed from a Crew person to a Second Assistant in less than 4 years. I honestly believed I had a long-term career with McDonald’s. The reason I resigned was because of the bullying and management’s refusal and failure to address my complaints and concerns about this.

12. I submit the brief facts outlined in the Chronology strongly infer and reflect that my Application has merit.

Fairness between the person and the other persons in a similar position

13. In Mr Paul Carfoot v SAC Sydney Arcdiocese (sic) T/A Vincent De Paul (C2010/3266) Fair Work Australia granted an extension of time for an Application filed 5 days late. In granting the extension, Commissioner Raffaelli found that ‘...any prejudice would be minimal.’

14. In John Ovende v Fortezza Pty Ltd T/A High Country Automotive (U2010/5657) Fair Work Australia granted an extension of time for an Application filed 26 days late to an employee suffering from depressions and anxiety exacerbated by work stress.

15. I submit that it would be fair for the Commission to grant an extension having regard to the cases about that involve employees in similar positions as myself.”

[9] I considered the various criteria to which my attention is directed by s.394 (3) of the Act.

reason for the delay-s.394(3)(a)

[10] The reason Mr Walkom provided for his delay in lodgement was poor health and difficulty in obtaining advice. He outlined his difficulties in his submission and provided supportive material. I was not persuaded that Mr Walkom’s ill health explained his eighteen day delay in lodging these proceedings in this Commission. There was insufficient evidence to support an incapacity which might have prevented the timely lodgement of these proceedings. I was not persuaded that his difficulty in obtaining advise was out of the ordinary, unusual or uncommon.

whether the person first became aware of the dismissal after it taken effect-s.394(3)(b)

[11] Mr Walkom became aware of the cessation of his relationship with the respondent when he resigned on 1 August 2014.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[12] Mr Walkom resigned his employment on 1 August 2014.

prejudice to the employer-s.394(3)(d)

[13] There would be no greater prejudice to the respondent caused by this application being listed now than there would have been had it been lodged in time. To this extent prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[14] There are significant issues regarding the merit of this application which Mr Walkom would have difficulty in overcoming. Constructive dismissal is often difficult to argue. However, after having considered all other factors, I decided to treat merit as a neutral consideration.

fairness as between Mr Walkom and other persons in a similar position-S.394(3)(f)

[15] There was no issue of fairness in relation to any other person in a similar position.

[16] I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application.

SENIOR DEPUTY PRESIDENT

 1   PN556125

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