Blair Lees v Container Cargo Specialist

[2015] FWC 2004

[2015] FWC 2004

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Blair Lees
v
Container Cargo Specialist
(U2015/3313)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Blair Lees alleged that the termination of his employment by Container Cargo Specialists (CCS) on 21 December 2014 was unfair.

[2] His unfair dismissal application lodged on 20 February 2015 was not made within 21 days of the date of the dismissal.

[3] CCS did not oppose Mr Lees being granted an extension of time to lodge his application.

[4] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 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]

(a) the reason for the delay;

[6] Mr Lees said that he suffered shock and trauma as a result of being dismissed without warning three days before Christmas. He had to focus on finding a new job as he is a sole parent and was in a difficult financial position.

[7] He further submitted that he did not know that there was a time limit for lodging applications and he had assumed that courts would be shut over the Christmas/New Year period.

[8] As a result of charges unrelated to his employment, it was a condition of his bail that he not contact anyone at CCS or have anyone else contact them on his behalf. He stated that as a result, he would not be able to serve papers on CCS.

[9] When this condition was removed, he lodged an unfair dismissal application with the Western Australian Industrial Relations Commission (WAIRC) on 16 February 2015. On 17 February 2015, he was told by the WAIRC that he needed to lodge his application with the Fair Work Commission.

[10] It is not unusual for employees in Western Australia to confuse the WAIRC and the Fair Work Commission. However, by the time Mr Lees lodged his application with the WAIRC, the 21 days had already passed.

[11] It is not unusual for employees to be shocked at the termination of their employment. Nor is it unusual for employees to be in a difficult financial position as a result of their dismissal. It is also not unusual for employees to be ignorant of the time limit imposed for lodging applications.

[12] Given that Mr Lees did not need to contact CCS to lodge his application, it is difficult to see how this could be an explanation for the delay. Further, this was no longer the situation after 17 February 2015. Mr Lees was told on that date that he had lodged his application with the wrong body but he did not lodge his application with the Fair Work Commission until 20 February 2015.

[13] While I accept that Mr Lees assumed that his bail condition meant that he could not serve any application on CCS, he did not explain why, once that bail condition was lifted and he found out he needed to lodge his application with the Fair Work Commission, it took him another three days to lodge his already out of time application.

[14] I am not satisfied that Mr Lees has provided a reasonable explanation for the whole of the delay in lodging his application. This weighs against extending time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[15] Mr Lees knew he was dismissed on the day it occurred. He had 21 days to lodge his application. This weighs against extending time.

(c) any action taken by the person to dispute the dismissal;

[16] Mr Lees did not dispute his dismissal at the time. He said this was because he was in shock. Further, Mr Lees said it was a condition of his bail that he not contact CCS. This explains why he took no action after the dismissal, however it does not adequately explain why he did not dispute his dismissal when it occurred. This criterion is neutral.

(d) prejudice to the employer (including prejudice caused by the delay);

[17] As CCS does not oppose the granting of the extension of time, there can be no prejudice to CCS. This weighs in favour of granting an extension of time.

(e) the merits of the application;

[18] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. However, as I am unable to conclude that Mr Lees’ claim has no prospects of success, this weighs in favour of granting an extension of time.

(f) fairness as between the person and other persons in a similar position.

[19] No submissions were made on this criterion. I will treat this criterion as neutral.

Conclusion

[20] As there are no disputed facts in this matter, I am not required to conduct a hearing or conference. I have decided the application to extend time on the basis of the material currently before the Commission.

[21] That CCS does not oppose the application does not mean that there are exceptional circumstances. I must be satisfied of the existence of exceptional circumstances before I can exercise my discretion to extend time. In this matter, I am not satisfied that Mr Lees has a reasonable explanation for the delay in lodging his application, particularly after the bail conditions were removed and he was told he needed to lodge his application with the Commission. I do not consider the other criteria outweigh his lack of a reasonable explanation for the delay.

[22] Mr Lees' application for an extension of time is dismissed and consequently his application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

 1   [2011] FWAFB 975.

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