Christopher Benetti v Fortescue Metals Group Limited

[2016] FWC 8488

[2016] FWC 8488

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Benetti
v
Fortescue Metals Group Limited
(U2016/12484)

COMMISSIONER PLATT ADELAIDE, 25 NOVEMBER 2016

Application for relief from unfair dismissal - extension of time - application dismissed.

[1] On 13 October 2016, Mr Benetti lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Fortescue Metals Group Limited (FMG) on 19 September 2016.

[2] Mr Benetti was dismissed after allegedly failing to board a flight to his remote workplace, having been previously warned regarding this behaviour.

[3] On 20 September 2016, FMG confirmed the dismissal in writing. The letter of termination provided stated:

“Fortescue is of the view that when considered together your misconduct has been sufficiently serious to warrant the termination of your employment, effective Monday, 19 September 2016.

Fortescue will observe all contractual and statutory entitlements with respect to your dismissal including three (3) weeks payment in lieu of notice…”

[4] On 27 October, 2016 FMG lodged an Employer Response (Form F3) where it raised the jurisdictional object that the application was lodged out of time.

[5] The matter was listed for conciliation but FMG objected, seeking that the extension of time issue be determined first.

[6] On 8 November 2016, my Associate corresponded with both Mr Benetti and FMG and advised that the extension of time issue would be considered at a telephone conference on 24 November 2016. Substantial information about the extension of time issue was provided to the parties. Mr Benetti was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 15 November 2016.

[7] On 14 November 2016, Mr Benetti provided a written submission, which stated that he “misunderstood my termination agreement and took my three week notice payment in lieu as actual three weeks’ notice.” Mr Benetti contended that his dismissal was unfair as FMG had failed to grant him a bonus under their FY16 staff incentive plan.

[8] On 18 November 2016, K&L Gates on behalf of FMG provided written submissions and a request for permission to be legally represented pursuant to s.596(2) of the Act.

[9] In its submission FMG contended that:

● Mr Benetti was expressly advised that the dismissal took effect on 19 September 2016 and this information was confirmed in writing the following day;
● Mr Benetti took no steps (other than the lodgement of the application) to contest the dismissal;
● the merits weigh against the application; and
● there would be no unfairness, comparing Mr Benetti to others in similar positions; and
● there were no exceptional circumstances warranting the grant of a further period to make the s.394 application.

[10] Mr Benetti participated in the telephone conference on 24 November 2016. Ms Carla Vineiullo of K&L Gates represented FMG seeking a grant of permission to appear which was granted with the consent of Mr Benetti.

[11] Mr Benetti reiterated his submission and accepted that he was advised in the meeting on 19 September 2016 and in writing, that his employment was terminated with effect from 19 September 2016. Mr Benetti stated that he did not understand the meaning of that information. Mr Benetti also advised that he had not taken any other steps to contest the dismissal other than the lodgement of the application.

[12] FMG maintained its opposition to an extension of time and relied upon its written submission.

[13] Section 394 relevantly 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.”

[14] On the information before me, I am satisfied that the application was made some 24 days after the date of termination and 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 1 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.”

[15] Mr Benetti submits that he was not aware that his employment terminated on 19 September 2016, and mistakenly believed that his employment ended at the conclusion of a three week notice period. Having reviewed the letter of termination, and after hearing Mr Benetti, I am unable to accept that proposition. The termination letter clearly states that the termination took effect on the 19 September 2016. It also states that payment was made in lieu of notice, even if Mr Bennetti did not understand what payment in lieu meant, the date of termination was clear. Mr Benetti did nothing to contest his dismissal other than lodging his claim 3 days beyond the 21 day time limit.

[16] In terms of the merits of the application, Mr Benetti does not contest the allegation made by FMG, but seeks to secure a bonus payment he believes he is entitled to. I find that the merits weigh against the granting of the application.

[17] FMG submitted it would be financially prejudiced as a result of the extension of time. FMG is a large employer with considerable financial means; I do not accept the position put and find that this is a neutral factor in my consideration.

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

[19] Having considered the material before me, I am not satisfied that Mr Benetti has established that the reason for the delay in this matter represents exceptional circumstances so as to warrant an extension of time. The application will be dismissed on that basis and an Order 2 giving effect to this decision will be issued.

COMMISSIONER

Appearances (by telephone):

C Benetti his own behalf.

C Vineiullo of K&L Gates on behalf of the Respondent.

Hearing details:

2016.

Adelaide:

November 24.

 1   [2011] FWAFB 975.

 2   PR587918.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR587917>