Benjamin Taylor v Port Lincoln Tuna Processors Pty Ltd

[2018] FWC 4703

[2018] FWC 4703

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin Taylor
v
Port Lincoln Tuna Processors Pty Ltd
(U2018/6488)

COMMISSIONER PLATT ADELAIDE, 10 AUGUST 2018

Application for an unfair dismissal remedy – extension of time – application dismissed.

Summary

[1] Mr Benjamin Taylor has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Port Lincoln Tuna Processors Pty Ltd (Port Lincoln Tuna) which his form F2 Unfair Dismissal application advised took effect on 31 May 2018.

[2] Unfair Dismissals Direct filed an application on Mr Taylor’s behalf with the Commission on 22 June 2018. Mr Taylor’s application identified that it was made beyond the 21 days from the date of dismissal and provided the following explanation:

“1. The Applicant concedes that this application has been made (1) day out of time, and respectfully requests the Fair Work Commission (Commission) allow a further period of time, pursuant to paragraph 366(1)(b) of the Fair Work Act 2009 (Cth) (the Act), for this application to be made.

2. The Applicant relies on the existence of exceptional circumstances, including representative error, which ground an extension of time, and submits that it would be manifestly unfair on the Applicant should it refuse to exercise its discretion to extend time.

3. On 06 June 2018, the Applicant consulted Dismissals Direct Pty Ltd (Unfair Dismissals Direct), the Applicant’s representative, by telephone, stating that he wished to challenge the Respondent’s decision to terminate his employment.

4. On 06 June 2018, Mr Smith, Industrial Relations Specialist with Unfair Dismissals Direct, contacted the Applicant via email seeking the provision of further information in respect of the termination of his employment.

5. On 21 June 2018, the Applicant formally engaged Unfair Dismissals Direct via email as his paid agent.

6. On 22 June 2018, upon making enquiries Unfair Dismissals Direct immediately realised a representative error, became aware of non-filing and took immediate steps to remedy.”

[3] On 12 July 2018, Port Lincoln Tuna lodged a Form F3 Employer Response which indicated that the dismissal occurred on 31 May 2018 and raised a jurisdictional objection on the basis that the application was lodged out of time. This decision only deals with the extension of time issue.

[4] On 30 July 2018, my Associate corresponded with Mr Taylor and his representative (Unfair Dismissals Direct) and Port Lincoln Tuna and advised that the extension of time issue would be considered at a telephone Hearing on 9 August 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties. Mr Taylor was directed to provide a statement concerning the extension of time and any documents to be relied upon by 6 August 2018. Port Lincoln Tuna was invited to file any material in reply by 8 August 2018.

[5] A reminder notice was sent to the parties at midday on 6 August 2018.

[6] No submissions were received from the Mr Taylor or his representative.

[7] A further reminder notice was sent to both parties on 8 August 2018.

[8] Neither the Applicant nor the Respondent filed any submissions.

[9] On 8 August 2018, Mr Tim Rizzuto from Unfair Dismissals Direct lodged a notice that he was ceasing to act – no explanation was provided. A further reminder regarding the requirement to lodge submissions was emailed to Mr Taylor.

[10] On 8 August 2018, I required Unfair Dismissals Direct to produce all of the correspondence between it and Mr Taylor in respect to the conduct of this application. I also summonsed Mr Rizzuto to attend the Hearing. These requests were complied with.

[11] A Hearing was conducted by way of a telephone conference on 9 August 2018. A sound file record of the telephone conference was kept. Mr Taylor represented him and Mr Luke (of Counsel) represented Port Lincoln Tuna. Permission was granted pursuant to s.596(2)(a) of the Act.

[12] Mr Taylor sought an adjournment to better prepare his case. Mr Taylor sought to explain his failure to provide submissions or prepare by advising that did not regularly check his emails. Port Lincoln Tuna opposed the application. The request for an adjournment was refused on the basis that Mr Taylor was made aware of the proceedings by Directions issued on 30 July 2018 and the last minute nature of the adjournment request.

[13] Mr Taylor gave evidence at the Hearing and his position is summarised as follows:

•  On 6 June 2018 he contacted Unfair Dismissals Direct. Prior to that he did not take any action to contest the dismissal as he was seeking alternative employment, dealing with a contract for a proposed house construction, and was emotionally impacted by the dismissal. Mr Taylor said that challenging the dismissal was not his first priority.

•  On 6 June 2018 Unfair Dismissals Direct emailed him seeking information about his case and warned him of the strict time limits.

•  On 7 June 2018 Mr Taylor emailed some documents and advised he would start preparing a chronology of events that day. Later that day Unfair Dismissals Direct advised it would await his chronology.

•  Mr Taylor emailed the chronology 11 days later on 18 June 2018. Mr Taylor advised that he was not familiar with computers and had difficulty compiling the chronology and that his assumption of the household duties (as his partner was now the sole breadwinner) prevented him from completing the document earlier.

•  On 19 June 2018 Mr Taylor sought confirmation that the chronology had been received. Later that day, Unfair Dismissals Direct advised it could accept his case subject to the execution of their Terms of Engagement by 2:00pm (AEST) on 21 June 2018.

•  On 20 June 2018 Mr Taylor advised by email that he wanted to proceed.

•  On 20 June 2018 at 7:10am Unfair Dismissals Direct emailed formal Terms of Engagement which were required to be returned by 2:00pm (AEST) on 21 June 2018 (which was the last day the application could be filed on time).

•  Mr Taylor returned the completed Terms of Engagement 24 minutes late, the delay was explained by the need to print out the document.

•  The application was lodged by Unfair Dismissals Direct on 22 June 2018.

[14] Port Lincoln Tuna submitted that:

•  Mr Taylor has failed to adequately explain the delay.

•  The circumstances were not “exceptional”.

•  Mr Taylor did not challenge the dismissal until 6 days after the event.

•  Mr Taylor did not prioritise the preparation of the unfair dismissal application.

•  The facts did not reveal representative error.

•  No prejudice was claimed.

•  The merits are a neutral consideration.

Applicable Law

[15] Section 394 of the Act 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.”

[16] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹which 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 every day 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.”

Consideration

[17] This unfair dismissal application filed by Mr Taylor was made 1 day outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[18] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[19] Mr Taylor explains the delay by his initial distress at having been dismissed, his focus on getting alternative employment as opposed to pursuing the claim, his difficulties in completing the chronology and technological difficulties in returning formal instructions to Unfair Dismissals Direct. He infers that representative error has occurred.

[20] As to the initial delay, it is common for employees to suffer shock and trauma as a result of dismissal from employment: Rose v BMD Constructions Pty Ltd². However, this of itself is not an exceptional circumstance. Mr Taylor was candid in admitting that challenging his dismissal was not his first priority.

[21] As to the 11 day period prior to the submission of Mr Taylor’s chronology to Unfair Dismissals Direct, Mr Taylor had ample opportunity to provide his instructions at an earlier stage which should have allowed his claim to be lodged in time. The fact that Mr Taylor took over the household duties and childcare responsibilities do not explain why he could not have instructed his proposed representative earlier.

[22] The final part of the delay was occasioned by the late submission of the signed authority for Unfair Dismissals Direct to proceed. Whilst it could be said that his representative was sailing close to the wind by accepting a claim with only a few hours left to lodge same, Mr Taylor did not meet the deadline imposed by his representative. In my view, the cause of the delay was not representative error but a lack of diligence on Mr Taylor’s part.

[23] The evidence given by Mr Taylor does not adequately explain the delay. Mr Taylor failed to appropriately prioritise the lodgement of his claim despite being made aware on 7 June 2018 of the strict time limits. In his reply submissions, Mr Taylor appropriately took responsibility for the delay and accepted he did not put in the required effort.

[24] In this case, Mr Taylor has failed to provide a credible explanation for parts of the delay and that would tend to weigh against a finding of exceptional circumstances: Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters³.

Whether the person first became aware of the dismissal after it had taken effect

[25] Mr Taylor was aware of the dismissal on the date it took effect.

Any action taken by the person to dispute the dismissal

[26] No action was taken to dispute the dismissal until 6 June 2018.

Prejudice to the employer (including prejudice caused by the delay)

[27] There is no submission that the granting of an extension of time represents prejudice to Port Lincoln Tuna.

The merits of the application

[28] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.

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

[29] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[30] For the reasons I have set out above, I am not satisfied that Mr Taylor’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order⁴ reflecting this decision will be issued.

COMMISSIONER

Appearances:

B Taylor the Applicant.

K Luke of Counsel on behalf of the Respondent.

Hearing details:

2018.

Adelaide

August 9.

Printed by authority of the Commonwealth Government Printer

<PR609841>

1 [2011] FWAFB 975.

2 [2011] FWA 673.

3 [2018] FWCFB 901.

4 PR609842.