Beren Ackers v Seit Outback Australia Pty Ltd T/A Seit Outback Australia
[2018] FWC 931
•12 FEBRUARY 2018
[2018] FWC 931
The attached document replaces the document previously issued with the above code on 12 February 2018.
2017 under Hearing (Conference) details is amended to 2018.
Associate to Commissioner Platt
12 February 2018
| [2018] FWC 931 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Beren Ackers
v
Seit Outback Australia Pty Ltd T/A SEIT Outback Australia
(C2018/112)
COMMISSIONER PLATT | ADELAIDE, 12 FEBRUARY 2018 |
Application to deal with contraventions involving dismissal – extension of time – application dismissed.
[1] Mr Beren Ackers has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by Seit Outback Australia Pty Ltd T/A SEIT Outback Australia (Seit Outback Australia) on 12 December 2017 in contravention of the general protections provisions of the Act.
[2] This application was lodged on 8 January 2018.
[3] Mr Ackers’ application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:
“This application is being made 27 days after termination. The reasons for this are as follows:
1. First two days after termination involved packing all my belongings, booking airport transfers, and cleaning my room for the return on my bond.
2. Almost everything is closed during the Christmas and New Year period, including I assume, the FWC offices.
3. I wasn’t originally going to push for unfair dismissal, provided all of my benefits were paid out. I was underpaid roughly $800, which I expected to be paid out with my final salary after I brought it to management’s attention. It wasn’t, so I confirmed with manager that the supporting information had been received. He indicated that he had received it, and assumed it was going to be paid out in the following pay cycle two weeks later. The pay cycle passed, and it still hadn’t been received. I called him on Monday 8th January 2018 to query when it was going to be paid. He rudely indicated that he had no intentions of ever paying it. This dispute was lodged that afternoon.”
[4] Seit Outback Australia filed a form F8A Employer Response on 14 January 2018 which raised a jurisdictional objection on the basis that the application was lodged out of time.
[5] On 24 January 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 12 February 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 Ackers and Seit Outback Australia were directed to provide an outline of argument by 1 February 2018.
[6] Mr Ackers provided a written submission which is summarised as follows:
• Mr Ackers has studied industrial relations and has previously dealt with the Commission.
• He was notified of the dismissal on 12 December 2017 in a face to face meeting with Mr Graham.
• The first three days after the dismissal were spent packing his belongings, cleaning his room (in order for the bond to be returned) and travelling to regional Victoria. At this stage, he did not intend to lodge an application with the Commission.
• Mr Ackers states ‘I knew that I had be (sic) unfairly dismissed, but was willing to overlook it and move on with my life provided all of my outstanding benefits were paid out. I have been through a similar process with another dodgy employer back in 2014, and whilst I was successful, it was emotionally taxing and something I never wanted to do again.’
• He submitted his final timesheet on 13 December 2017 and emailed Kathy, who was responsible for payroll and rosters, to notify her that he had been underpaid. As he received no response, he assumed that the money owed would be paid in his final pay.
• On 19 December 2017, he received his final pay. Upon realising that the shortfall had not been paid out, he contacted Melanie to follow it up. She forwarded the email to Mr Graham and copied Mr Ackers in. Mr Ackers wrote to Mr Graham about the underpayment.
• On 21 December 2017, Mr Ackers wrote to Mr Graham and requested that he confirm that he had received his previous email. Mr Graham responded ‘Yes email noted’. As a result, Mr Ackers assumed that the money would be paid in the next pay cycle on 2 January 2018.
• The money was not paid, and therefore, Mr Ackers wrote to Mr Graham, Kathy and accounts via email on 4 January 2018.
• On 8 January 2018, Mr Ackers contacted Mr Graham via telephone to enquire as to why he had not been paid. After a heated conversation, Mr Graham hung up. It was at this moment that Mr Ackers decided to place aside his aversion to lodging with the Commission. He therefore prepared and filed this application on the same afternoon.
• On 12 January 2018, Mr Ackers received $1513.85 which he refers to as an ‘unsolicited payment’ from Mr Graham.
• In terms of the merits of the application, Mr Ackers submits that he was summarily dismissed because tourist numbers had suddenly dropped off, it was alleged he was physically unable to perform the duties due to his weight and he had received two previous formal warnings. Mr Ackers offered to go home for Christmas, taking accrued annual leave and unpaid leave. He also suggested that he could work a few shifts per week and gain a second job. However, both of these suggestions were rejected.
[7] Seit Outback Australia provided a written submission which is summarised as follows:
• Mr Ackers was dismissed as there was an unexpected downturn in tourism numbers which was beyond Seit Outback Australia’s control. Secondary factors that supported selecting Mr Webber as the candidate for dismissal include the fact that he had two formal warnings for failure to perform duties, dangerous driving and endangering guests and staff and he had failed to disclose personal information at the time of employment. These secondary factors merely supported the decision to terminate Mr Webber’s employment.
• As a goodwill gesture Mr Webber has since been paid the claimed wage shortfall and his termination notice.
[8] A hearing was conducted by way of telephone conference on 12 February 2018. A sound file record of the telephone conference was kept. Mr Ackers represented himself and Mr Brett Graham represented Seit Outback Australia.
[9] Mr Ackers reiterated his submissions at the hearing
[10] Seit Outback Australia relied on the submissions filed and contended that there were no exceptional circumstances on the basis that Mr Ackers had previous experience with the Commission.
[11] Section 366 of the Act relevantly states:
“Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
[12] This general protections application by Mr Ackers was made 6 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
[13] I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd1 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.”
[14] Mr Ackers was dismissed on 12 December 2017 and was aware of the dismissal on that date. At the time of the dismissal Mr Ackers did not intend to contest the dismissal.
[15] Mr Ackers was aware that there was a time limit but not that it was 21 days.
[16] No action was taken to contest the dismissal until 8 January 2018, when Mr Ackers determined to lodge his application as he did not receive a contractual payment he believed he was entitled to. By this stage Mr Ackers was already out of time by 6 days.
[17] The fact that Mr Ackers was not aware of precise details of the time limit is not of itself an exceptional circumstance.2
[18] That Mr Ackers was waiting for payment of an entitlement is also not of itself an exceptional circumstance.
[19] I am not satisfied the circumstances relied upon to explain the delay are properly characterised as ‘exceptional circumstances’.
[20] The applicant needs to provide a credible explanation for the entire period of the delay,3 but has not done so.
[21] There is no submission that the granting of an extension of time represents prejudice to Seit Outback Australia.
[22] Consideration of fairness relative to other persons in similar positions is a neutral factor.
[23] 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.
Conclusion
[24] For the reasons I have set out above, I am not satisfied that Mr Ackers 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 (by telephone):
Mr B.Ackers the Applicant.
Mr B.Graham on behalf of the Respondent.
Hearing (Conference) details:
2018.
Adelaide:
February 12.
<PR600350>
1 [2011] FWAFB 975
2 Rose v BMD Constructions Pty Ltd [2011] FWA 673
3 Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403
4 PR600351
Printed by authority of the Commonwealth Government Printer
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