Bradley Van Moolenbroek v Hastings Deering (Australia) Limited

[2015] FWC 722

[2015] FWC 722

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Bradley Van Moolenbroek
v
Hastings Deering (Australia) Limited
(U2014/15586)

DEPUTY PRESIDENT SAMS SYDNEY, 4 FEBRUARY 2015

Application for relief from unfair dismissal - application made ‘out of time’ - allegation of serious misconduct concerning a safety issue - two periods of delay requiring explanation -significant delay (267 days) - legal advice not required to file application - no ‘exceptional circumstances’ - any merit of claim outweighed by other factors - application dismissed.

INTRODUCTION

[1] This decision arises from an application for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394(3) of the Fair Work Act 2009 (the ‘Act’). Mr Bradley Maarten Van Moolenbroek (the ‘applicant’) was dismissed from his employment with Hastings Deering (Australia) Limited (the ‘respondent’) on 17 February 2014, for alleged serious misconduct involving a safety issue at a mine site. The applicant lodged an application for unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 2 December 2014. The Act mandates a 21 day time limit for initiating an application for a remedy from unfair dismissal. His application was therefore lodged at least 267 days outside the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for Unfair Dismissal lodged by the applicant. The Commission wrote to the applicant on 8 December 2014 outlining the matters I am required to consider under s 394(3) of the Act asking him to provide a statement addressing these matters within 14 days. The applicant provided a statement of two pages. Having considered this material, I issued an Order refusing an extension of time and dismissed the application on 13 January 2015. These are my reasons for doing so.

RELEVANT STATUTORY PROVISIONS AND PRINCIPLES
[3] The relevant legislative framework, guiding the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘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.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, the Full Bench of the Commission 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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].’

[5] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing of an unfair dismissal application. Put another way, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application ‘out of time’; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia[2014] FWCFB 2288 succinctly described the Commission’s decision making process under 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I now turn to each of the criteria under s 394(3) of the Act.

CONSIDERATION

Reason for the delay (s 394(3)(a))

[6] As I understand it, the applicant contends that his lack of knowledge as to the merits of his unfair dismissal claim delayed the filing of his application. In response to the letter sent by the Commission on 8 December 2014, the applicant claims that in early October 2014 he secured ‘indisputable evidence’ that would support his case for relief from unfair dismissal. The applicant attributes the further delay between this date and the date of lodgement on 2 December 2014, to a lack of legal advice, due to his financial circumstances. In this respect he said;

‘It has taken me a few weeks to determine what rights I have in relation to the termination. This has involved a consultation with a solicitor, but due to the period of unemployment, I am not in the financial position to retain a solicitor.’

[7] It might be observed that there are two distinct periods requiring explanation: the first from 17 February 2014 until early October 2014, and the second from early October 2014 until 2 December 2014. I am not persuaded that a lack of conclusive evidence, as to the merits of the applicant’s case, constitutes an ‘exceptional circumstance’ within the meaning of s 394(3) of the Act. In most unfair dismissal cases, the evidence will be contested. In many cases, the evidence will not be ‘indisputable’ or conclusive. The applicant’s claim that he was not fully aware of the merits of his unfair dismissal claim, must be rejected as a basis for granting an extension of time.

[8] The applicant was dismissed for serious misconduct in that it was alleged that he had operated machinery (an Elevated Work Platform) for which he had not been trained. He claimed that many months later, he was provided with information from the respondent’s training records (BMA Tracks Training Book) which confirmed that he had received the appropriate training. He described this as ‘indisputable evidence’ that he had in fact, been unfairly dismissed. The difficulty with this submission is that the applicant also said that he had challenged his dismissal at the time, on the basis that he had received the appropriate training. If this was the case, then it seems extraordinary that he did not lodge his application within time, given that he says it was a ‘black and white’ case. In other words, he firmly believed he had been unfairly dismissed at the time of his dismissal, but chose to do nothing about it for many months. I note that in the event that the application was filed in time, it would have been open to the applicant to subpoena materials to assist his case.

[9] Notwithstanding the applicant’s claim of ‘indisputable evidence’, he nevertheless delayed a further month in filing his application with the Commission. I do not accept the applicant’s contention that legal advice was necessary for him to file an unfair dismissal application. An applicant’s lack of knowledge of their legal rights does not of itself, constitute an ‘exceptional circumstance’; See Nulty at para [14]. Legal assistance or representation is not required to file an application for a remedy for unfair dismissal and, indeed, parties frequently represent themselves in such matters before the Commission. Moreover, the applicant’s Form F2 application was completed by him, seemingly without difficulty or legal advice. I note that the relevant form provided by the Commission is simple and straightforward and extensive guidance is provided on the Commission’s website as to the lodgement of such an application. In addition, an unfair dismissal application can be made by phone; See: Rule 9, Fair Work Commission Rules 2013.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[10] The unfair dismissal application, lodged by the applicant, acknowledges that he was dismissed on 17 February 2014 and was aware of his dismissal on that date. This is a neutral factor in this case.

Any action taken by the person to dispute the dismissal (s 394(3)(c))

[11] In his letter outlining the reasons for the delay, the applicant states that he was unemployed for a period of time before he secured casual employment with another company. The applicant did not indicate that he took any action to dispute his dismissal, until lodging this application with the Commission on 2 December 2014 - some 288 days later. This factor must weigh against the extension of time being granted.

Prejudice to the employer (s 394(3)(d))

[12] Given the significant period of time which has elapsed between the dismissal of the applicant and the filing of his unfair dismissal application, I am satisfied that the respondent would be exposed to considerable prejudice in the event that an extension of time was granted. This factor weighs against the extension of time being granted.

The merits of the application (s 394(3)(e))

[13] It is important to note that a consideration of the merits of an application, at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis. The applicant alleges that his dismissal occurred after his unauthorised use of an Elevated Work Platform. He asserts that his BMA Tracks Training Book confirms that he was certified to operate an Elevated Work Platform. This, it was said, was ‘black and white’ evidence of him being unfairly dismissed. A prima facie assessment of this material would suggest that the applicant’s case is not devoid of merit. However, this assessment is far outweighed by the insufficient reasons for his delay in filing during the two relevant periods, and the prejudice that would be imposed on the respondent, in the event that an extension of time was granted.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))
[14] The applicant did not address this criterion. It would appear that the respondent took action (dismissal) solely against the applicant based on his alleged unauthorised operation of an Elevated Work Platform. Resultantly, there were no other persons in a comparative position to that of the applicant. This is a neutral factor in this case.

CONCLUSION

[15] Having considered all of the matters which the Commission is required to take into account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 13 January 2015.

DEPUTY PRESIDENT

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