Brian Shipp v Svitzer Australia Pty Ltd T/A Svitzer Australasia

[2014] FWC 7862

[2014] FWC 7862

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brian Shipp
v
Svitzer Australia Pty Ltd T/A Svitzer Australasia
(U2014/12959)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 6 NOVEMBER 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] This decision sets out the reasons for my conclusion that Mr Shipp's unfair dismissal application will be dismissed on the basis that it was lodged outside of the time limit specified in s.394(2) of the Fair Work Act 2009 (the FW Act).

[2] On 1 October 2014 Mr Shipp lodged an application pursuant to s.394 of the FW Act, through which he sought relief in relation to the termination of his employment with Svitzer Australia Pty Ltd T/A Svitzer Australasia (Svitzer).

[3] In that application, Mr Shipp advised that his dismissal took effect on 4 September 2014 but that he did not receive advice of that termination of employment until 11 September 2014. He advised that the Fair Work Commission (FWC) should take into account the following information in considering whether to accept his application out of time.

“As I work in a different state to where I am employed, (work in Whyalla SA and I live in Newcastle NSW), I never received the letter until I returned home 11.09.14” 1

[4] The application was referred to me for consideration. On 16 October 2014 my Associate advised the parties that the extension of time issue would be considered through a telephone conference on 5 November 2014. The parties were provided with substantial background information relative to the application and the extension of time issue. Mr Shipp was required to provide a witness statement and a copy of any document relied upon, by 29 October 2014.

[5] The Svitzer Employer’s Response (Form F3) to the application recorded its objection to the application proceeding on the basis that it was lodged outside of the statutory time limit and asserted that Mr Shipp was verbally advised of the termination of his employment on 3 September 2014.

[6] A sound file record of the conference on 5 November 2014 was kept. Mr Shipp was represented in this conference by Ms Matthews, of counsel, pursuant to a grant of permission made under s.596(2)(a). Svitzer was represented by Ms Figg, Port Manager - SA Ports and by its Human Resources Manager, Mr Hayes.

[7] My decision on the extension of time issue was made on the material before me. This included the material provided by Mr Shipp and the information provided by Ms Figg.

[8] That information discloses that Mr Shipp was employed by Svitzer from October 2012. In his witness statement, Mr Shipp asserts that he was employed pursuant to a series of employment contracts from 2006 to 2014 and that, at the time of the termination of his employment, he had been working a two-week on, two-week off roster. Mr Shipp asserts that whilst he resided in New South Wales, his employment was based in Whyalla, in South Australia. Mr Shipp worked as a tugboat Master.

[9] Mr Shipp’s evidence was that:

“On 3 September 2014 I received a telephone call from Cheree Figg. Ms Figg is a Manager at Svitzer. Ms Figg and I had a conversation to the following effect:

Figg: “Hi Brian. I’m calling about your ongoing training. I’m sorry to say we’re not going to be able to keep progressing your training.”

Shipp: “That’s a pity, so many of the other guys have gone through and I have covered for them. Will there be a chance later?”

Figg: “Not at this stage.”

Shipp: “What will happen now?”

Figg: “We’ll write to you and let you know what is happening moving forward.”

My training had been suspended in the past during periods when training masters were unavailable. This was not unusual. I assumed that my training had been temporarily cancelled but did not consider that my employment had been terminated.

Later in the day on 3 September 2014 I received a text message from Svitzer, which stated “Wistari D/S TT 0600 - Hogan, Shipp, Jordan, Ismakic, Ross, Blackwell” (the text message.

The text message was similar to text messages I had received in the past from Svitzer advising me of my reporting obligations for training.

I was confused by the text message as it indicated that my training was ongoing. I decided to wait to receive the letter from Svitzer as I believed it would confirm the position.” 2

[10] Mr Shipp advised that he subsequently decided to stay in Whyalla to hear news regarding his training but that, on 7 September 2014 he travelled home to Newcastle where he received a letter from Svitzer on 10 September 2014 advising of the termination of his employment. He subsequently contacted Ms Figg who confirmed the termination of his employment. Mr Shipp enlisted the assistance of the Australian Maritime Offices Union in negotiations about the termination of his employment. His position is that, whilst he was unaware of the 21 day time limit, his application was made within 21 days of advice of the termination of his employment.

[11] Ms Figg advised that, on 3 September 2014 she telephoned Mr Shipp and advised him that his training had been terminated and that, as a consequence of this his employment was terminated. She advised him that he would be given 30 days pay in lieu of notice. Ms Figg confirmed this in correspondence dated 4 September 2014 which was sent both to Mr Shipp’s address and was emailed to him. Ms Figg advised that she made further enquiries and established that Mr Shipp was entitled to 6 weeks pay in lieu of notice. She received a telephone call from Mr Shipp on 5 September 2014 and, in the course of that telephone discussion she confirmed that he would be paid six weeks pay in lieu of notice and discussed with him possible financial assistance for his relocation back to New South Wales.

[12] In the conference Mr Shipp initially did not recall that discussion but later agreed that he had contacted Ms Figg on 5 September 2014 and that she had communicated to him that he would be paid six weeks pay in lieu of notice and discussed travel payments.

[13] As a consequence, I have concluded that Mr Shipp was aware of the termination of his employment by 5 September 2014 at the latest, and was most likely aware of that termination on 3 September 2014.

[14] The information my Associate provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[15] Section 394 states:

“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.”

[16] In terms of s.394(2) the application was made outside of the specified 21 day time limit. If the termination of Mr Shipp’s employment took effect on 3 September 2014 his application was lodged some 7 days outside of the 21 day time limit. Even if I was to assume that there was some lack of clarity about the telephone discussion which Ms Figg and Mr Shipp had on 3 September 2014 and took it that the employment termination took effect on 5 September 2014, the application was lodged five days out of time. In any event, the application can only be pursued if an extension of time is granted pursuant to s.394(3). No information to explain the delay has been provided to me apart from Mr Shipp’s reliance on his receipt of the letter confirming the termination of his employment on 11 September 2014.

[17] In Nulty v Blue Star Group Pty Ltd 3 a 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.”

[18] I am not satisfied that any acceptable explanation for the delay in lodging the application has been established to me.

[19] I am satisfied that Mr Shipp was made aware of the termination of employment decision on 3 or at the latest, 5 September 2014. For the reasons I have already set out I think it most likely that the termination of Mr Shipp’s employment took effect on 3 September 2014.

[20] I accept that Mr Shipp obtained advice from his union about his capacity to dispute the termination of his employment but I am not satisfied that he otherwise took action to dispute that termination other than through the late lodgement of this application.

[21] I am not satisfied that the granting of an extension of time would prejudice the respondent in this matter. However, that conclusion cannot form a basis for an extension of time.

[22] In terms of the merits of the application, the material before me does not permit a conclusion about the merits of Mr Shipp’s application. As a consequence I have regarded the merits as a neutral consideration relative to the extension of time issue.

[23] Considerations of fairness relative to persons in similar circumstances to Mr Shipp, do not support an extension of time.

Conclusion

[24] For the reasons I have set out above, I am not satisfied that Mr Shipp’s circumstances support an extension of time. I am not satisfied that the circumstances here should be regarded as exceptional for the purposes of the discretion in s.394(3). The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR557428) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

D Matthews counsel for the applicant.

C Figg and E Hayes for the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

November 5.

 1   Form F2, para 1.4

 2   Statement of Brian Shipp, paras 6 - 10

 3   [2011] FWAFB 975

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<Price code C, PR557427>