Bradley Wood v Heaven Costumes

[2020] FWC 4104

[2020] FWC 4104

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bradley Wood
v
Heaven Costumes
(U2020/9480)

COMMISSIONER PLATT ADELAIDE, 6 AUGUST 2020

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

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Mr Bradley Wood a further period for his unfair dismissal application (Application) to be made against Heaven Costumes.

Background

[3] Mr Wood has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with Heaven Costumes which his form F2 Unfair Dismissal Application advised took effect on 15 June 2020.

[4] The application was lodged on 10 July 2020.

[5] The application recognised that it was made beyond 21 days from the date of dismissal and advised that Mr Wood had tried twice to lodge an online application on 6 July 2020 but that the application had ‘frozen’ due to matters beyond his control. Mr Wood emailed the Adelaide Registry of the Commission detailing his problems at 5.22pm on 6 July 2020 and was advised by return email, that the Commission was experiencing technical difficulties and the phones were down. A form F2 was provided by email and submitted by Mr Wood on 10 July 2020. Copies of the relevant emails were provided.

[6] Heaven Costumes was not requested to file a form F3 Employer Response.

[7] On 24 July 2020, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 3 August 2020. 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 Wood was directed to provide a statement concerning the extension of time and any documents to be relied upon by 31 July 2020.

[8] Mr Wood did not lodge any further material.

[9] On 31 July 2020, Heaven Costumes provided a detailed submission mainly focussed on the merits of the matter.

Hearing

[10] A hearing was conducted by way of telephone conference on 3 August 2020. A sound file record of the telephone conference was kept. Mr Wood represented himself and Ms Anne Baker represented Heaven Costumes.

[11] Mr Wood confirmed the information provided on his form F2 as to his difficulties in lodging his application. He also advised that he had difficulty in accessing a computer to complete the application form that was emailed to him before he lodged the application.

[12] Ms Baker did not make any submissions as to the extension of time issue and said she would defer to the Commission.

[13] I am aware that the Commission was having some difficulties with its online lodgement system at the time Mr Wood tried to lodge his claim

Applicable Law

[14] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(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.”

[15] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 3

[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 Ltd⁴ 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.”

Consideration

[17] There is no dispute that Mr Wood was dismissed on 15 June 2020.

Paragraph 394(3)(a) - reason for the delay

[18] I accept that Mr Wood tried to make an online application in respect of his dismissal on 6 July 2020 which is within the time permitted by the Act. This is supported by his communications with the Commission’s Registry on that day and my knowledge of recent issues with the Commission’s online lodgement system.

[19] I accept that Mr Wood did not have ready access to a computer to complete the applications emailed to him.

[20] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period. 5 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,6the Full Bench explained the correct approach by reference to the following example:

“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

[21] Mr Wood has explained the majority of the delay, this factor weighs in favour of granting an extension of time.

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

[22] Mr Wood was aware of the dismissal on the date it occurred.

[23] This factor weighs against a finding that there are exceptional circumstances.

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

[24] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 7

[25] The attempted lodgement of the application on 6 July 2020 is action taken to contest the dismissal. This factor weighs in favour of the granting of an extension of time.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[26] There is no submission that the granting of an extension of time represents prejudice to the Respondent.

Paragraph 394(3)(e) - merits of the application

[27] 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.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

[28] I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[29] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.

[30] An Order⁸ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr B Wood on his own behalf.

Ms A Baker on behalf of the Respondent.

Hearing (Conference) details:

2020.
Adelaide:
August 3.

Printed by authority of the Commonwealth Government Printer

<PR721568>

 1   Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)

 2 Section 394(3) of the Act

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

4 [2011] FWAFB 975

 5   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 6   [2016] FWCFB 349

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

8 PR721569