Brodie Hunt v Cash Converters

[2015] FWC 1423

[2015] FWC 1423

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brodie Hunt
v
Cash Converters
(U2015/2304)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 4 MARCH 2015

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

[1] Mr Hunt has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Dallwier Enterprises Pty Ltd T/A Cash Converters at Modbury (Cash Converters). At a telephone conference convened on 3 March 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion

[2] Mr Hunt's application was lodged on 13 January 2015. In that application Mr Hunt advised his employment was terminated with effect from 4 December 2014. Mr Hunt asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept his application out of time:

“ Contending the 21 day period to lodge due to not receiving the employment separation Cert. until a month after being dismissed

• Separation Certificate received in post 4 weeks after dismissal (envelope stamped with that date)



• Stalling from the employer



• Numerous telephone calls and texts were made to try to obtain the separation Cert. Resulting in falsely saying it had been sent and emailed (but never was)



• Couldn’t make the application for unfair dismissal until the separation cert. was obtained so I reason for dismissal could be known.”  1 (sic)

[3] On 16 January 2015 my Associate corresponded with both Mr Hunt and Cash Converters and advised that the extension of time issue would be considered through a telephone conference on 3 March 2015. Substantial information about the extension of time issue was provided to the parties. Mr Hunt was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 24 February 2015.
[4] No additional information was received from Mr Hunt despite a request to this effect.

[5] The Employer’s Response to the application also objected to the application on the basis that it was a small business and, as Mr Hunt had only been employed since 30 April 2014, he had not completed the necessary minimum employment period. In addition Cash Converters provided copies of a number of warnings given to Mr Hunt before the termination of his employment.

[6] Mr Hunt participated in the telephone conference. Mr Moshos from Cash Converters also participated in this conference. Notwithstanding the absence of any written material from Mr Hunt, he was given the opportunity to expand on the information provided in the application. In this regard he advised that, at the time of the termination of his employment he was not given a reason for that dismissal. He thought that to be unfair. On or around 11 December 2014 he advised that the FWC told him he had to specify a reason for the dismissal and hence he waited until he received the Employment Separation Certificate before lodging the application. Mr Hunt also asserted that, at the time of the termination of his employment, Cash Converters employed more than 15 employees.

[7] Mr Moshos advised that he terminated Mr Hunt’s employment on 4 December 2014 and, in doing so, told him that he was unsuitable.

[8] My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[9] Section 394 relevantly states:

“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.”

[10] On the information before me I am satisfied that the application was made some 19 days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 2 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.”

[11] Mr Hunt's reasons for the delay relate to his late receipt of the Employment Separation Certificate. However that is a form which is unrelated to this application. I have concluded that it is most likely that Mr Hunt was told he was unsuitable at the time of the termination of his employment. In any event, I do not accept Mr Hunt’s assertion that he was unable to lodge the application without knowing the reason for his dismissal. Mr Hunt himself conceded that the absence of a reason for dismissal would be unfair. Furthermore, the unfair dismissal application form at paragraph 3.1 asks “What were the reasons for the dismissal, if any, given by your employer?” That question clearly does not require that an applicant must be aware of the reasons for termination. If Mr Hunt considers he was not told of the reasons for his dismissal he could have recorded that in his response to this question. In these circumstances, I am not satisfied that Mr Hunt’s explanation for the delay represents an acceptable reason for the delay or that it is indicative of exceptional circumstances. It is clear from Mr Hunt's application that he was aware of the termination of his employment on the day it took effect. I am not satisfied that, apart from the late lodgement of this application, Mr Hunt pursued other actions so as to challenge the termination of his employment. I am not satisfied that an extension of time of this magnitude would prejudice the Respondent but this, of itself, does not provide a basis for an extension of time.

[12] In terms of the merits of the application, I consider that, if Cash Converters establishes that it is indeed a small business for the purposes of the FW Act, Mr Hunt had not completed the necessary minimum employment period in order to be a person protected from unfair dismissal. I have noted that Mr Hunt disputes those employee numbers and have consequently regarded the merits of the application as a neutral factor relative to the extension of time.

[13] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[14] Accordingly I have concluded that the material before me does not establish that Mr Hunt's circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR561525) giving effect to this decision will be issued.

Appearances (by telephone):

B Hunt on his own behalf.

J Moshos representing the respondent.

Hearing (Conference) details:

2015.

Adelaide:

March 3.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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