Charbel Arida v Lifestylelogic Pty Limited

[2014] FWC 9458

[2014] FWC 9458 [Note: An appeal pursuant to s.604 (C2015/1003) was lodged against this decision - refer to Full Bench decision dated 26 March 2015 [[2014] FWCFB 1260] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Charbel Arida
v
Lifestylelogic Pty Limited
(U2014/15201)

DEPUTY PRESIDENT SAMS SYDNEY, 24 DECEMBER 2014

Termination of employment - application for remedy for unfair dismissal - application made ‘out of time’ - extension of time - no ‘exceptional circumstances’ - application dismissed.

[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 section 394 of the Fair Work Act 2009 (the ‘Act’).

[2] The employment relationship between Mr Charbel Arida (the ‘applicant’) and Lifestyle Logic Pty Limited (the ‘respondent’) ended on 3 October 2014 (although there was some controversy as to the actual date of termination; See: paras [10]-[11] below). On the face of the documents filed, the applicant was dismissed for serious and wilful misconduct, involving allegations of fraud and theft. The applicant lodged an application for an unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 12 November 2014. His application was therefore lodged 19 days outside the statutory time limit set out in s 394(2)(a) of the Act.

[3] In determining this application, the Commission has had regard to the Application for Unfair Dismissal lodged by the applicant (Form F2) and the response filed by the respondent (Form F3) on 24 November 2014. The Commission wrote to the applicant on 19 November 2014 outlining the matters I am required to consider under s 394(3) of the Act and asking the applicant to provide a statement addressing these matters within 14 days. The applicant provided a brief statement on 1 December 2014 and further materials on 16 December 2014. Having considered this material, I issued an Order refusing an extension of time and dismissing the application on 18 December 2014. These are my reasons for doing so.

[4] 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.’

[5] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the Full Bench 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. [Endnotes not reproduced]’

[6] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) of the Act must be considered when deciding whether or not ‘exceptional circumstances’ have been established to warrant the exercise of the Commission’s discretion to extend the time for filing of an ‘out of time’ unfair dismissal application.

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

[7] The reasons the applicant provided for his delay in lodging the application were expressed as follows:

‘— the reason for the delay;- Work injury which I was on sick leave at the time, and still barely sleep out of fright that I wont be able to walk as it takes me a few hours per day to get up from the pain., I’ve barely been able to walk each day, and am daily waking up no knowing whether is Monday or Sunday.’

[8] While an unexpected illness or injury may constitute an ‘exceptional circumstance’ it will be usual for the Commission to require medical evidence to verify such an explanation. Accordingly, I directed the applicant to provide medical evidence of his workplace injury. He responded as follows:

‘Hi there I dont really have much documents as its a ongoign situation which includes heavy prescribed medication. recently ive just been really depressed , had family issues , relationship issues, family issues, basically struggling to fight on, have no support, no way up and even dr’s have been a let down, Back in my mind i have a feeling that it will last forever, and find it so hard to have this conflict with lifestyle logic, as ive already been harassed bullied and tormented in that company, and now left to feel icolated when Andrew ( owner) was meant to be a older family figure.
I don’t want harm on anyone but I do wish something would be done to A: stop them from punishing others B: some closure on this pain C: use money compensated with to fix the work place inuury which I am also fighting for, i could’ve been doing so much if it was never in this unproffessional scarring place that i worked.’

[9] The applicant provided an Independent Medical Examination completed by a Neurosurgeon dated 22 November 2013, almost a year prior to his dismissal. Relevantly, he did not provide medical reports or other evidence in respect to the period immediately after the date of his dismissal and within the following 21 day time period.

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

[10] The applicant addressed this issue as follows:

‘— whether the person first became aware of the dismissal after it had taken effect; I still don’t know whats going on to be honest, one day I am a asset the next day when I try to do the right thing by a customer I am ganged upon and the enemy of the business I created.’

[11] In the employer’s Form F3 response, the respondent put that the applicant had been notified of his dismissal on 3 October 2014 and it took effect on that day. An email from Mr Andrew Fennell of the respondent to the applicant, dated that day, was expressed, in part, as follows:

‘Further to our conversation earlier this afternoon with Luke Thurly and yourself, I am confirming that your employment has been terminated immediately.

...

This leaves me with no choice but to terminate your employment immediately.

...

I explained the above to you and after I said you were terminated, you hung up the phone. I rang you again and explained that you were employment [sic] was terminated and again you hung up.

I am sending this e-mail so there is no confusion.’

[12] There was no evidence that the applicant did not receive this email. Nor was it ambiguous or confusing. Accordingly, I find that the applicant became aware of his dismissal on 3 October 2014.

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

[13] The only action taken by the applicant to dispute his dismissal was the lodgement of this application. He said in his statement:

‘— Any action taken by the person to dispute the dismissal; I have tried to work with Andrew with no luck , he even still has my possessions’

This matter is a neutral factor.

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

[14] The applicant did not respond to this criterion. I am satisfied that there would be no greater prejudice to the respondent caused by this application being listed for hearing in the near future than there would have been, had it been lodged in time. Prejudice to the respondent is therefore a neutral consideration.

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

[15] The applicant addressed this criterion as follows:

‘— the merits of the application; fired with no proof of wrong doing, minimumal [sic] benefits, my work injury is worse, and basically has ruined my life.’

Generalisations such as this are unhelpful to this consideration. In any event, any 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. However, in this case, I am unable to make any prima facie assessment of the merits of the application. The merit of the applicant’s claim is a neutral issue in my consideration of this application.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))
[16] The applicant responded to this criterion as follows:

‘— fairness as between the person and the other persons in a similar position.- he and all in the office knew I had multiple problems from this injury at work , but no one would ever take the time and tryi and see why the insurance company was so painful to deal with’

This statement does not satisfactorily answer the question of any unfairness in comparison to other persons in a similar position. It is a neutral factor.

[17] 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 advanced 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 18 December 2014.

DEPUTY PRESIDENT

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