Brendan Thurtell v Cessnock Automotive Group Pty Ltd

[2015] FWC 381

[2015] FWC 381

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brendan Thurtell
v
Cessnock Automotive Group Pty Ltd
(U2014/9864)

COMMISSIONER STANTON NEWCASTLE, 14 JANUARY 2015

Application for relief from unfair dismissal - termination of employment - extension of time - application granted.

[1] Mr Brendan Thurtell (the applicant) has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Cessnock Automotive Group Pty Ltd (the respondent).

[2] The applicant was dismissed on 15 May 2014. The application was filed electronically and emailed to the Sydney Registry within time on Thursday, 5 June 2014. However, applicant failed to attach the relevant Form F2 to his emailed application. Notwithstanding that anomaly, the application was date stamped 5 June 2014 by the Fair Work Commission Melbourne Registry.

[3] On Friday, 6 June 2014, the Canberra Registry advised the applicant by email that the Form F2 had not been received and requested that a copy of that form be sent to [email protected] as soon as possible. The applicant subsequently filed his Form F2 by return email on Monday, 9 June 2014. The application was date stamped 9 June 2014 by the Canberra Registry.

[4] The respondent opposed the application on jurisdictional grounds as it was filed four days late. Given the nature of the materials filed the hearing proceeded as a determinative conference.

[5] Section 394(3) of the Act allows the Commission to permit a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s.394 of the Act:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.

[6] The applicant urged the Commission to allow a further period for the application to be made on the grounds that the application was technically filed late due to “exceptional circumstances.”

[7] The meaning of the term “exceptional circumstances” was considered by a Full Bench of the Commission in Nulty v Blue Star Group Pty Ltd 1 in the context of a general protections application. Given s.366(2) of the Act is expressed in identical terms to s.394(3), the Full Bench determination as to the principle is equally applicable to this particular application. The Full Bench 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. [Endnotes deleted]

[8] When considering whether exceptional circumstances exist so as to warrant that an extension of time be granted, the Commission is required to consider and give weight to all of the factors outlined in s394(3) when deciding whether the circumstances relied upon are circumstances sufficient to support the exception claimed.

Do exceptional circumstances exist to warrant an extension of time?

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

[9] Section 366(2) of the Act required the application to be filed within 21 days of the dismissal taking effect on 15 May 2014.

[10] The reason for the applicant’s delay in lodgement was due to a mistake. He inadvertently failed to attach his Form F2 to the application that he emailed to the Commission within time on 5 June 2014. In that regard, the applicant sent the following email to the Commission on 5 June 2014:

To whom it may concern

My name is Brendan Thurtell.

Please find attached my F2 Form and my termination letter.

I would like to pay the fee of $65.00 by credit card.

Look forward to hearing from you.

Kind Regards

Brendan Thurtell

[11] On 6 June 2014, the Commission sent the applicant an email acknowledging receipt of his application absent the Form F2. The applicant received this email on his iPhone 2 but was unable to upload the Form F2 until he was able to access his substantive computer on 9 June 2014. He also paid the application fee on 6 June 2014.3

[12] The Fair Work Commission Rules applicable at the time in relation to electronic lodgement of applications state, inter alia, that an application is not taken to have been lodged by email until it has been acknowledged by email. Indeed, the applicant’s application absent the Form F2 was acknowledged by the Melbourne Registry on 5 June 2014. On my advice, applications filed electronically are ‘date stamped’ according to the date received by the Commission.

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

[13] The applicant became aware of his dismissal by the respondent on 15 May 2014.

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

[14] The applicant disputed his dismissal by his first attempt to lodge his application by email on 6 June 2014. He had also challenged the fact that the respondent gave no reasons for his dismissal. 4

Section 394(3)(d) - prejudice to the employer

[15] The respondent contends it would be prejudiced by the conduct of an unfair dismissal applicant on the grounds that had the application been made within time “it would have been resolved.” 5 On balance, I amsatisfied there is no prejudice to the respondent employer.

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

[16] In the circumstances of this case I consider merit as a neutral issue as it was not raised by either party and information before the Commission concerning the dismissal was very limited.

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

[17] It is a neutral factor in my decision. There is no issue of fairness in relation to any other person in a similar position.

Conclusion and Finding

[18] Having considered all of the evidence and the respective submissions of the parties, I am satisfied the applicant has demonstrated that exceptional circumstances arise for the delay in making his application which warrant the Commission to exercise the discretion available to allow a further period for this application to be made.

[19] It is tolerably clear that the applicant intended to file his completed application on 5 June 2014. He has provided a reasonable explanation for the delay and his mistake was remedied at the first available opportunity. An order to that effect will be issued in conjunction with this decision - PR560107.

[20] The application will be referred to a Fair Work conciliator for conciliation. The parties will be advised of a time and date for that conciliation conference in due course.

COMMISSIONER

Appearances:

Applicant - self represented.

Respondent - self represented.

 1   [2011] FWAFB 975

 2   Transcript at PN24

 3   Ibid at PN52

 4   Ibid at PN54

 5   Ibid at PN92

Printed by authority of the Commonwealth Government Printer

<Price code C, PR560106>