Chris Berry v Zintel Communications Pty Ltd
[2011] FWA 3198
•30 MAY 2011
[2011] FWA 3198 |
|
DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Chris Berry
v
Zintel Communications Pty Ltd
(U2011/4151)
DEPUTY PRESIDENT SAMS | SYDNEY, 30 MAY 2011 |
Application for unfair dismissal remedy - application out of time - exceptional circumstances - case not made out - application dismissed.
[1] Mr Chris Berry (‘the applicant’) was dismissed from his employment as a telemarketer for Zintel Communications Pty Ltd (‘the respondent’) on 19 November 2010. He had been employed for a period of six months. While the reasons for the applicant’s dismissal (with two week’s pay in lieu of notice) are not necessarily relevant for the purposes of this decision, it is sufficient to note that it was said that he was dismissed as a result of numerous written complaints from potential customers of the respondent. Unsurprisingly, the applicant contests the reasons for his dismissal.
[2] The applicant filed an application for unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (‘the Act’) on 4 January 2011. It will be immediately apparent that for the application to proceed to arbitration, Fair Work Australia (FWA) must be satisfied that there are ‘exceptional circumstances’ which would allow FWA to extend the time for filing the application, beyond the statutory permissible limit of 14 days. The application is 32 days out of time.
[3] After an unsuccessful telephone conciliation of the application on 9 February 2011, it was referred to me for the purposes of s 394(3) of the Act, which is expressed as follows:
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.
[4] When the matter was first listed for hearing on 25 March 2011, the applicant did not appear; nor was he represented. In accordance with my usual practice, I had cause to be sent to the applicant the following letter:
In view of your non-attendance at today’s hearing of the jurisdictional challenge to your unfair dismissal application, his Honour has asked me to inform you that:
1. Mr A Pizzardi, Finance Manager for the respondent employer, made an application today to dismiss your matter for want of prosecution.
2. Unless his Honour is advised by 4:00pm next Friday, 1 April 2011, that you intend to contest the employer’s application, it will be granted by his Honour in Chambers.
3. If you intend to contest the application, it will be listed for hearing on a date to be fixed and you will be required to offer an explanation for your non-attendance today.
[5] When the applicant subsequently advised that he wished to press his unfair dismissal claim, he explained that the reason for his non-attendance on 25 March 2011, was that he had expected a second telephone conference; not an appearance in the Tribunal. The matter was re-listed for hearing on 9 May 2011.
[6] In an earlier email to FWA, the applicant responded to the directions for the hearing by submitting a one paragraph submission as follows:
Hi Michael, i was to send application for submission i have already stated my reasons i have never being fired from any job and i do not have any understanding of government law regarding 14 days to lodge a claim after i was terminated from the company i went in to sevee depression i left Sydney straight away as i felt so humiliated by the company i worked for i was trained to do a job and i did it to the wire even went the extra mile for this company by making over 200 calls a day and then to be fired for something i was instructed to do is unjust this is my submission so forward my statement to the correct authority kind regards. (sic)
[7] No formal evidence was filed by the applicant or the respondent. Both parties were unrepresented at the hearing. Nevertheless, one might reasonably conclude, from the above email, that the applicant’s reasons for not filing his application within time, were that he was unaware of the 14 day time limit, he was suffering from “severe depression” and he had left Sydney immediately after his dismissal as he claimed that he felt humiliated by the respondent’s treatment of him.
[8] In further probing from me at the hearing, the applicant elaborated on these reasons and said that:
- He had not sought any medical advice as to his suffering from severe depression;
- He had left Sydney to visit friends in the country (Tenterfield) where he had grown up;
- His apartment was taken away from him and, as he had nowhere to live, he went to Queensland; and
- He was in Toowoomba at the time of the Queensland floods.
[9] Mr A Pizzardi, Finance Manager for the respondent, advised that the applicant was dismissed after the sixth customer complaint and after he had been issued with a performance letter on 15 October 2010. The respondent opposed the Tribunal extending the time for the application to be filed.
CONSIDERATION
Statutory framework and relevant principles
[10] As mentioned earlier, the overarching consideration in a case such as this, is whether the applicant has satisfied FWA that ‘exceptional circumstances’ exist for the grant of an extension of time for the filing of his late application. While neither party relied on any relevant authority for the meaning of ‘exceptional circumstances’, I will take the liberty of reminding the applicant of what he must demonstrate in this case. In Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, a Full Bench of FWA discussed the meaning of ‘exceptional circumstances’ as follows:
[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 3 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 4, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:5
“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 not 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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.
[11] I now turn to the specific provisions of s 394(3) of the Act.
[12] The applicant cites three reasons for the delay in filing his unfair dismissal application:
- he was suffering from severe depression when he was visiting friends;
- he was unaware of the 14 day time limit; and
- he had moved to Queensland and was affected by the Queensland floods.
[13] In my opinion, none of these explanations, either individually or collectively, constitute ‘exceptional circumstances’ as contemplated by the statute, and as considered by the authorities of FWA to which I earlier referred.
[14] Firstly, the applicant sought no medical advice as to his apparent “severe depression” arising from his dismissal. It seems to me that if the applicant was severely depressed, he would have required at least a consultation with a doctor, if not a prescription for some alleviating medication. I find it difficult to believe, if he was as depressed as he has claimed, that he did not seek medical advice. Of course, it is trite to observe that most employees who are dismissed for poor performance, experience some degree of shock or hurt which may sometimes lead to feelings of upset or humiliation. In some cases, it may well lead to severe depression; even hospitalisation. However, to prove that this reason is an ‘exceptional circumstance’ requires something more than a self diagnosis of one’s understandable feelings; particularly where it seems his answer to his alleged depression was to seek solace by visiting friends in the country. I adopt, with respect, the comments of Richards SDP in Atefeh Heydari-Torshizi v B 4 Kids Pty Ltd T/A B 4 Kids [2010] FWA 1536, where his Honour said at paras [7] and [8]:
[7]The Applicant reasons for delay in lodging her application are that she was in shock from having her employment terminated and she was unaware of the role of FWA in relation to a remedy. The Applicant was inactive, as it were, because of these reasons for some 16 days on her own evidence.
[8]These reasons do not assist me in finding that there were exceptional circumstances attending the late application. The extent of the apparent shock was not made out in any medical sense. In any event, the Applicant’s state of mind and degree of composure was not a hindrance to attending three service providers (the Townsville Community Legal Service Inc; the State Department offices and the Fair Work Ombudsman) and write a letter in clear and amenable terms to her former employer (on 20 November 2009).
[15] Secondly, while I accept that the applicant was unaware of his rights to file for a remedy from his alleged unfair dismissal or that he only had 14 days to do so, he is hardly ‘Robinson Crusoe’ in that respect. Many of the large numbers of applicants seeking extensions of time for filing unfair dismissal applications bear testimony to the fact that the applicant is no different to many other dismissed employees in claiming ignorance of the law when failing to file within 14 days. I reiterate what was said in Nulty v Blue Star Group Pty Ltd at par [14]:
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.
[16] On the other hand, there is no doubt that the applicant knew he was dismissed on the day of his dismissal (19 November 2010). In my opinion, it is significant that there is no evidence that he took any action to dispute his dismissal until 46 days later. These are circumstances which must count against the exercise of FWA’s discretion under s 394(3) of the Act.
[17] Thirdly, the applicant claimed that the Queensland floods were a later reason for the delay in filing his application. This was nonsense. Indeed, he only embraced this excuse after he asked me during the hearing what was an ‘exceptional circumstance’, and I explained to him that the Queensland floods was a recent example of an ‘exceptional circumstance’ justifying an extension of time being granted by FWA. Even if this was a legitimate reason, it cannot possibly explain his inaction from 19 November 2010, to the Queensland floods in the second week of January 2011. In any event, his timing is all wrong. His application was actually filed on 4 January 2011 - a week before the floods in Toowoomba.
[18] In my opinion, there would be prejudice to the respondent in having to face a contested claim of unfair dismissal (s 394(3)(d) of the Act). This is so having regard to the applicant’s short period of service and the uncontested evidence of the applicant’s performance meetings and the warnings issued to him. On balance, I do not consider that the merits of his application are sufficiently strong to outweigh the other factors I have earlier referred to. In short, his prospects of success appear to me to be remote; although I stress, this is only a preliminary view.
[19] Finally, there was no evidence that the applicant was treated any differently, in terms of process or outcome, than other employees of the respondent who may have been dismissed for poor performance (s 394(3)(f) of the Act).
[20] For the foregoing reasons, I am unable to conclude that the applicant has established ‘exceptional circumstances’ such as to satisfy FWA to exercise its discretion, pursuant to s 394(3) of the Act, to extend the time for filing this application. Accordingly, the application must be dismissed. An order to that effect will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Mr C Berry, unrepresented
Mr A Pizzardi, for the respondent
Hearing details:
2011
SYDNEY
9 May
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