Christopher Michailidis v JB Chung Enterprises Pty Ltd T/A Rapid Tune Greensborough

[2017] FWC 4707

[2017] FWC 4707

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Christopher Michailidis
v
JB Chung Enterprises Pty Ltd T/A Rapid Tune Greensborough
(C2017/4380)

COMMISSIONER PLATT ADELAIDE, 11 SEPTEMBER 2017

Application to deal with contraventions involving dismissal – extension of time – representative error – application granted

[1] Mr Christopher Michailidis has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by JB Chung Enterprises Pty Ltd T/A Rapid Tune Greensborough (Rapid Tune) on 17 July 2017 in contravention of the general protections provisions of the Act.

[2] This application was lodged on 8 August 2017.

[3] Mr Michailidis’ application indicated, at question 1.4, that he was making the application within 21 calendar days of the dismissal taking effect.

[4] Rapid Tune filed a F8A Employer Response on 22 August 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time.

[5] On 28 August 2017, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 8 September 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Michailidis and Rapid Tune were directed to provide an outline of argument within 7 days.

[6] Mr Michailidis provided a written submission which is relevantly summarised as follows:

• Prior to his dismissal he was consulting with Mr Matt Christie (AMWU Organiser) his AMWU representative.



• He was dismissed on 17 July 2017 and contacted Mr Christie so as to commence a process to contest the dismissal.



• Mr Christie instructed Ms Rima Tawil (AMWU Industrial Officer) to prepare and lodge a claim on Mr Michailidis’ behalf.



• Ms Tawil submitted a statement which indicated that she miscounted the 21 day period and as a result lodged the application 1 day late. This proposition was supported by documentary evidence.



• Mr Michailidis contended the delay was caused by representative error and that his conduct did not contribute to the delay.

[7] Respondent filed a provided a written submission which is relevantly summarised as follows:

• Mr Michailidis was dismissed on 17 July 2017.



• The application was filed late.



• Mr Michailidis was represented at all times and as such he had every opportunity to lodge the application on time.



• There was no submission that the late application caused disadvantage or unfairness to Rapid Tune.



• The merits weighed in favour of Rapid Tune.

[8] A hearing was conducted by way of telephone conference on 8 September 2017. A sound file record of the telephone conference was kept. Ms Tawil from the AMWU represented Mr Michailidis. Mr Michailidis and Mr Christie attended the hearing. Rapid Tune advised prior to the hearing that it would not attend.

[9] Mr Michailidis relied on the material filed. Mr Michailidis and Mr Christie gave evidence that confirmed that they had spoken with each other about 6 times between 17 July and 8 August 2017 to provide information and/or follow up on the progress of the claim.

[10] Section 366 of the Act relevantly states:

“Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[11] This general protections application by Mr Michailidis was made 1 day outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[12] I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ 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.”

[13] I accept the submissions of Mr Michailidis and his evidence concerning his actions to follow up the progress of his claim.

[14] This is a case of representative error. Ms Tawil failed to correctly calculate the time period for the lodgement of the claim which led to the application not being lodged until one day past the time required. Mr Michailidis appropriately followed up his claim.

[15] The applicant needs to provide a credible explanation for the entire period of the delay, 2 and has done so.

[16] There is no submission that the granting of an extension of time represents prejudice to Rapid Tune.

[17] Consideration of fairness relative to other persons in similar positions is a neutral factor.

[18] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.

Conclusion

[19] For the reasons I have set out above, I am satisfied that Mr Michailidis’ circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and the application will accordingly be referred for conciliation. An Order 3 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Ms Tawil on behalf of the Applicant.

No Appearance on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

September 8.

1 [2011] FWAFB 975

 2   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

 3   PR595979

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<Price code A, PR595978>