Colin Furphy v Greyhound Australia Pty Ltd

[2015] FWC 5185

[2015] FWC 5185

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Colin Furphy
v
Greyhound Australia Pty Ltd
(U2015/4539)

SENIOR DEPUTY PRESIDENT DRAKE PERTH, 30 JULY 2015

Application for relief from unfair dismissal-extension of time allowed-merit considered it to.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mr Furphy and the respondent ended on 12 February 2015. Mr Furphy lodged his application at the Fair Work Commission on 2 April 2015. Mr Furphy’s application was lodged 28 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Furphy. I wrote to him on 13 April 2015 outlining the matters I was required to consider by the Act and asked him to provide a statement addressing these matters within 14 days. The full explanation had to be obtained by a question-and-answer process. I have endeavoured to set out below all of its elements.

[4] In paragraph 1.4 of his application Mr Furphy provided the following explanation for delay:

“Firstly i like to make it clear this application is late according to the rules, being over 21 days. The reason is i tried to apply in the given time frame, The software on the FWC site wouldn’t accept my file documents which were in PDF (they were too big ) i tried to convert them to word docs but they were rejected also, i had found another job that was taking up time. I phoned FWC a number of times but became frusterated (sic) enough to just give up. A FWC employee told me they were having problems and i wasn’t the only one. I also was a member of the TWU union, they told me i might have to attend meetings in Brisbane, now you have another job is that what you want? Well it turns out others have told me since then i might be able to do the whole hearing by phone. I have since resigned from the TWU.”

[5] Correspondence of 1 April 2015 between the Fair Work Commission Registry in Brisbane and Mr Furphy is set out below:

“Application for unfair dismissal regarding Greyhound Australia driver
Note to whom it may concern, please phone me regarding payment for this application.Can you also send the correct form for me to fill out.
Colin Furphy
(Address withheld)

Firstly i like to make it clear this application is late according to the rules,being over 21 days.The reason is i tried to apply in the given time frame,The software on the FWC site wouldn’t accept my file documents which were in PDF (they were too big )i tried to convert them to word docs but they were rejected also,i had found another job that was taking up time.I phoned FWC a number of times but became frustrated enough to just give up.A FWC employee told me they were having problems and i wasn’t the only one.I also was a member of the TWU union,they told me i might have to attend meetings in Brisbane ,now you have another job is that what you want?Well it turns out others have told me since then i might be able to do the whole hearing by phone.I have since resigned from the TWU. To the reviewer,i was under a “first and final warning” before the incident that led to my dismissal.Basically that was a series of communication breakdowns and failures by management to deal with issues that had been brought up many times. That was dealt with and i was free to go back to work.That is dealt with on page 2, of the IMG attachment. And then i was handed a notice of suspension ,page 4 and 5 of the IMG attachment Finally page 1 goes to the letter of termination. I have also included a letter i wrote to Mr Bob Gibbens,with the TWU,”Letter to Bob2” attachment,initially he was going to help me,it may give some insight as to what i was going through at work,note the first 2 incidents occurred on the same day.You may have trouble even understanding this letter,basically my argument is Greyhound operations in Mackay(Coal mining employee transfers)are big time to them,they don’t provide an effective method for communicating with drivers,as you will pickup in the letters.Except by drivers own mobile phones.And don’t believe Greyhounds line that they don’t expect drivers to actually use there (sic) phones.I have witnesses that tell me supervisors have berated them for not answering there (sic) phone,you see whenever a call comes through from base while driving,it’s mostly critical to the operation.What i am saying is during the interviews with Mackays GHA manager,i told the truth and she told the company line because if she told the truth she would put there (sic) operations at risk.She knew the truth but could not admit it. So i feel my termination was harsh and totally unfair.And in doing so along with the job i lost 130 hours of long service pay. To the reviewer i awate (sic) your determination
regards
Colin”

“Good afternoon,
I refer to email below received at the Brisbane office of the Fair Work Commission today 1 April 2015. As per telephone discussion there was no application attached to your email. Where an application is sought to be lodged, the application will need to be lodged on a Fair Work Commission application form, all forms can be found on our website at
Brisbane Registry
Fair Work Commission

“Good morning,
here is the completed F2 form to start off the process,
regards
colin”

“Dear Mr Furphy,
There was nothing attached to your email. Can you please return completed application by return email. If you have any questions please contact the Brisbane office on [phone].
Regards
Brisbane Registry
Fair Work Commission

[6] On 6 May 2015 Mr Furphy provided the following explanation:

“Dear Sarah,
The 21 days i had to lodge the application expired on the 5th of March.I attempted to lodge the application on 2 days by Efilling (Sic) ,the 4th and the final day the 5th of March. In the days prior to that i got together all the docs i thought i needed. I have attempted to get proof of this for you but checking records by me is impossible.Unless you can do that.The only thing that may prove that is if someone can look up the day i filled in my contact details on the Efilling (Sic) site.
The only enquiries i made were prior to that to fwc,and only regarding procedures for submitting the forms.Unfortunately they didn’t simply tell me to email the application through which would have taken care of all those docs plus application in one go.And i would have been registered in time.I have to stress also any phone conversations i made on the 1300 number i had to do through public phones.And i had commenced working for another company on the 26th of Feb,and was working on the 2nd,3rd,4th,and 5th of march.So there was some stress involved.
The reason i delayed the attempt to lodge was because i was a member of the TWU union,they were going to lodge for me.After discussions and talking to others i decided to lodge myself.Which failed by the 21st day.
After that i pondered whether to proceed,i phoned fwc again to be told yes they have had software problems and i wouldn’t be the first to have those problems.I was heartened by this news.At this time i was working in a work camp,North Goonyella village,no phone reception for me at that time (until i bought an updated phone) and in this time i decided to file another application as i believed the company had been too harsh and they had also erred themselves and should have just admitted that and built on that.
regards
colin”

[7] On 27 May 2015 Mr Furphy provided the following response to my correspondence and the respondent’s submission;

“My response to Lisa’s question “what was he doing in the days following the failed attempt to lodge”
I have said before, I phoned FWC in the days after that,i was also stationed out at Goonyella North minesite village and had no communications coverage.All explained before to you.
As to the merit of the case,
As to the Greyhound mobile use rules. They were unworkable in the Bowen basin.at the time of the incident.The problem,is Greyhound have never articulated “how we receive calls”,Greyhound is or should be well aware that drivers only have a handheld phone.I have only come across one driver who uses those earpieces since starting work with Greyhound in 2009.Lisa contends in point 2,drivers are not to use handheld devices if handsfree device is not available,is complete rubbish.
I (along with all the other drivers)would have gladly turned my phone off while driving.And Greyhounds business in the Bowen basin would have collapsed. The problem here is Greyhound never ever articulated to us how we could operate under there rules,”because they couldn’t”.
I have already given proof,in my last letter,i provided 3 pictures showing a SMS text warning of a slippery road ahead.It was intended to be read.The problem Lisa is you and Dallas have never put yourselves in our seat.If you had you would relize (Sic) you have to pick up the phone and view it.
I’ll give another example,you won’t have heard of,you take off from the depot,10 minutes later you receive a SMS stating “STOP THE BUS IMMEDIATELLY (Sic)”your bus has only half the brake system working and it was allocated by mistake,we will send another bus to meet you,you can then swap passengers onto that and continue your journey.That message was expected to be read.
Exactly as the msg from Marcia was.Both illegal,and nothing to do with earpieces (handsfree) because Greyhound haven’t listened to drivers concerns.
We have asked for hands free setups for years.Something as simple as an arm (boom) to hold the phone in but immediately viewable to the driver. And legal.The shortcomings in their rules and procedures were well known.Imagine if there was a critical msg (that could result in fatalities) they had to relay,Greyhound could not pass it on legally under there rules at the time of my termination. And they have no idea who has a handsfree and who doesn’t.
I was “accustomed”to receiving calls from Greyhound staff,lot’s of calls.I dealt with them as best I could. By saying “i will pullup”.Staff were well aware of this,as it solved there problem for them.
Now Greyhound have recognised there was a problem and sent out a memo and now “will call numerous times”signifying staff want to contact you(sent out less than 1 week after my termination ) .As I said this is a positive step.But is it enough?Have staff been told no SMS’s are to be sent?
To me that is proof that those rules of your’s are unenforceable as staff sending us SMS ‘s is encouraging us to break the law.And I will leave a judge to decide that.
The fact of Greyhound actually strengthening there rules considerably since my termination,and by terminating me,to me is unfair.
More on the merits of this
I have one more point to bring up. Greyhound staff have immediate access to a drivers whereabout’s,while driving but fail to utilise it. Meaning GPS.So they can easily tell if a driver is at the wheel.It could be fairly stated that most drivers only have a handheld phone.They can’t pick it up.They don’t know who’s calling.Why didn’t Greyhound simply say if you own a handheld,it must be turned off while driving.I remind you of the case “Yarra bus fatilities (Sic)”in Melbourne,where a judge took 2 years to release a judgement,a bus company is 50% responsible if there is an accident while calling a bus driver while at the wheel.A judge could look at the recommendations that came out after that.And conclude Greyhound have taken no notice of that.A judge could rule on that too.
Finally there could be merit in this case going ahead quickly,I am now driving for a competitor of Greyhound,on my first trip (a survey trip sitting behind a driver experienced on the route)he took a call from the company,pulled up,took the call then continued on. I said to him I was terminated for doing that.
If this case goes ahead I will be able to highlight to a judge that Greyhound have changed there (Sic) rules so that a driver will know if a call is from Greyhound and can pullup “without touching the phone”And that rule should be a national rule used by all Bus companies. So some good can come out of this case proceeding.
Finally I think this case can be concluded quite quickly as I have offered proof,if a manger can’t operate within the rules,how can we be expected to.Greyhound management needs to look at itself and not unfairly blame it’s (Sic) employees,who are only doing the best they can under difficult and changing conditions.
Regards
Colin”

[8] The respondent was provided with a copy of Mr Furphy’s responses.

[9] I issued an Order extending the time for lodgement of Mr Furphy’s application on 21 July 2015.

[10] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(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.

[11] 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]

[12] For exceptional circumstances to arise as contemplated by s394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[13] I considered the various criteria to which my attention is directed by s.394 (3) of the Act.

reason for the delay-s.394(3)(a)

[14] The reasons Mr Furphy provided for his delay in lodgement have been set out at length in this decision. He was not a competent Internet user. He mistook the process. That is not by itself an exceptional circumstance. He also relied upon the Transport Workers Union which did not, according to him, provide proper support and advice.

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

[15] Mr Furphy became aware of the end of his relationship with the respondent on 12 February 2015.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[16] Mr Furphy disputed his dismissal directly with the respondent and by lodging this application.

prejudice to the employer-s.394(3)(d)

[17] I was satisfied that there would be no greater prejudice to the respondent caused by his application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[18] Merit was an issue in my consideration of this application. The allegation against Mr Furphy is a serious one. The issue he raises regarding the respondent’s policy concerning mobile phone use is very serious. There is a factual dispute between Mr Furphy and the respondent which I consider should be resolved by an arbitration. There are issues of public and driver safety involved.

fairness as between Furphy and other persons in a similar position-s.394(3)(f)

[19] There was no issue of fairness in relation to any other person in a similar position.

[20] Having considered all of the matters to which my attention is directed by the Act I was satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis I allowed the application. On balance, having considered all those matters to which my attention is directed by s.394(3), I was satisfied that Mr Furphy’s circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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