Constantine Galigalis v The Group of Four Pty Ltd t/as Mazzaro Restaurant

[2015] FWC 410

[2015] FWC 410

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Constantine Galigalis
v
The Group of Four Pty Ltd t/as Mazzaro Restaurant
(U2014/14701)

DEPUTY PRESIDENT SAMS SYDNEY, 16 JANUARY 2015

Application for relief from unfair dismissal - application made ‘out 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 s 394 of the Fair Work Act 2009 (the ‘Act’). Mr Constantine Galigalis (the ‘applicant’) was dismissed from his employment with The Group of Four Pty Ltd t/as Mazzaro Restaurant (the ‘respondent’) on 20 September 2014. The applicant lodged an incomplete application for an unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 29 October 2014 and lodged a completed application on 3 November 2014. His application was therefore lodged at least 18 days outside the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for Unfair Dismissal lodged by the applicant and the Form F3 Employer’s Response filed on 13 November 2014. The Commission wrote to the applicant on 14 November 2014 outlining the matters I am required to consider under s 394(3) of the Act and asking him to provide a statement addressing these matters within 14 days. The applicant provided a statement of three pages which annexed an email to himself from an officer of the Fair Work Ombudsman (FWO) on 30 October 2014. Having considered this material, I issued an Order refusing an extension of time and dismissed the application on 10 December 2014. What follows are my reasons for doing so.

[3] 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.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’) where a Full Bench of the Commission 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.

[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.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].

[5] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing of an unfair dismissal application. In other words, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application ‘out of time’; See: Nulty at para [15].

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

[6] The applicant claimed that the reason for the delay in filing his application arose due to the timing of his receipt of material from ‘Fair Work Australia’. He had been advised to contact the respondent to require them to remedy the situation within 7 days. He had been advised to contact ‘Fair Work Australia’ again if the respondent did not do so. A week after this conversation with ‘Fair Work Australia’, he was sent the forms to complete and submit his application. This would appear to be advice from the Fair Work Ombudsman (FWO) rather than ‘Fair Work Australia’ or the Commission. It is unclear as to why it would take a week for FWA or FWO to send him the appropriate forms. The applicant did not claim any difficulty in accessing the relevant form from the Commission’s website or at the Commission’s premises.

[7] The applicant complained that he had not been advised, at any point, as to the 21 day statutory time limit. He had received the forms on or around the 20th day after he was dismissed and had physically attended the Sydney office of ‘FWA’ to lodge his application on what he said was the 22nd day. He claimed that this had been the earliest opportunity for him to do so.

[8] It is clear that the applicant was pursuing an underpayment claim through the Fair Work Ombudsman following his dismissal. I note that the email attached to his statement was from an officer of the Fair Work Ombudsman and provided advice on pursuing his claim in the Federal Circuit Court. However, none of these other applications ever represented any barrier to him simultaneously lodging an unfair dismissal application with the Commission within the 21 day statutory time limit.

[9] I am not persuaded that a delay in being provided with forms for unfair dismissal by the Fair Work Ombudsman or the Commission (this was not clear from the applicant’s submission) constituted an ‘exceptional circumstance’ within the meaning of s 394(3) of the Act. I note that the relevant Form F2 application is provided on the Commission’s website and extensive public guidance is provided as to the lodgement of an application. I have difficulty reconciling the applicant’s explanation with the dates he has provided.

[10] In any event, the applicant’s submission that he filed the application on the 22nd day after his dismissal is either disingenuous or misconceived, as the application was lodged, at the earliest, 18 days outside the statutory time limit.

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

[11] The applicant did not provide a clear date as to when he first became aware of his dismissal, but said that after a disagreement with a member of the ownership group, he had been advised of his dismissal on a weekend over the telephone. In his Form F2, he identified 20 September 2014 as the date on which he was notified of his dismissal. The Form F3, provided by the respondent also identified 20 September 2014 as the date on which the applicant was dismissed. Accordingly, I find that the applicant was aware of his dismissal on 20 September 2014.

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

[12] The applicant explained that another person within the ownership group had approached him to tell him that the ‘dismissal’ was simply a misunderstanding. He also noted that he had contacted ‘Fair Work Australia’, who had advised him to contact the respondent by email, which he had done. He noted that a mediation had been conducted by the Fair Work Ombudsman. As this had not been resolved, he understood that he was then in a position to continue his unfair dismissal application. He had also made an application to the Federal Circuit Court. Given his apparent ability to pursue these other applications without confusion or difficulty, these circumstances must weigh against a finding of ‘exceptional circumstances’ in this case.

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

[13] The applicant submitted that there would be minimal prejudice to the employer as the delay had been short. He referred the Commission to Turpin v Casual Guy Pty Limited Print [T1092]. In my view, prejudice to the employer is a neutral factor in this case.

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

[14] Unsurprisingly, the applicant believed his case had merit, as he had been dismissed after a disagreement (altercation, in the words of the employer) with a member of the ownership group of the respondent. He thought that the issue had been resolved on the day that the disagreement had occurred. He claimed that there had never been any performance related issues with his work and he had always acted in the best interests of the respondent.

[15] It is relevant to note that a 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. Given that the dismissal apparently arose as a result of an altercation with an owner of the respondent, I am able to make a prima facie assessment that the merits of the application are not particularly strong. In my view, it is also relevant to note that the respondent is a small business (as defined) and would otherwise be bound to the Small Business Fair Dismissal Code. In addition, the respondent claimed the applicant was a casual employee. These may be additional hurdles the applicant would have to overcome, which fortifies my view that his prospects of success are negligible.

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:

‘It is my belief that should anyone in a similar position be faced with similar circumstances, that it would be deemed reasonable and fair that an extension of time be granted for their unfair dismissal application. I’ve attempted to deal with this issue as best as possible and in a timely manner given the circumstances of the situation.’

[17] While I accept that the applicant is aggrieved by the decision to dismiss him, for the reasons I have given above, I do not consider that the applicant’s position in relation to another person in a similar position is unfair. It would appear to be a conventional dismissal for misconduct.

[18] Having considered all of the matters which the Commission is required to take 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 submitted 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 10 December 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, PR560137>