Damien Smith v PFD Food Services Pty Ltd T/A PFD Food Services

[2016] FWC 2257

[2016] FWC 2257

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Damien Smith
v
PFD Food Services Pty Ltd T/A PFD Food Services
(U2016/5160)

COMMISSIONER PLATT ADELAIDE, 12 APRIL 2016

Application for relief from unfair dismissal - extension of time not granted.

[1] Mr Smith has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with the PFD Food Services Pty Ltd (PFD).

[2] Mr Smith’s application was lodged on 7 March 2016. The application advised that his employment was terminated with effect from 22 December 2016 and sought that the Commission extend the time in which the application could be made.

[3] Mr Smith asked that the following information be considered:

“I contacted the Union after Christmas break who didn’t think I had a case and due to depression and anxiety problems since PFD fired me unfairly. I’m sure if given an opportunity to prove my case their conduct will be seen to be unfair if not illegal.”

[4] On 9 March 2016, my Associate corresponded with both Mr Smith and PFD and advised that the extension of time issue would be considered at a telephone conference on 5 April 2016. Substantial information about the extension of time issue was provided to the parties. Mr Smith was directed to provide a witness statement and a copy of any document to be relied upon relative to the extension of time issue by 22 March 2016. PFD was required to submit a Form F3 (Employer Response) by 16 March 2016.

[5] Additional information was received from Mr Smith on 21 March 2016.

[6] PFD have summited an Employer Response (Form F3) and object to the extension of time, submitting that Mr Smith has not provided substantive and valid reasons for his late application and that the reasons put forward do not meet the requirements of the Act.

[7] Mr Smith participated in the telephone conference. PFD was represented by Mr Asmar. The telephone conference was recorded and a sound file retained.

[8] The portions of the Mr Smith’s submission relevant to the out of time considerations are summarised as follows:

• Mr Smith became aware of the termination not later than 23 or 24 December 2015;
• Mr Smith asserts he was suffering from depression and/or anxiety due to the interactions between himself and PFD in December 2015;
• Mr Smith said that he contacted the National Union of Workers (NUW) on 6 January 2016 and was advised on or about 8 January 2016 that he had been paid his entitlements;
• the NUW further advised that they did not believe Conciliation would achieve much and that they would not represent him; and
• Mr Smith contended that he was not aware until late February/early March that he could lodge an unfair dismissal application without being represented.

[9] PFD’s position can be summarised as follows:

• Mr Smith acknowledged that the termination occurred on 23 December 2015;
• Mr Smith failed to demonstrate exceptional circumstances within the meaning of the Act and the application should be dismissed;
• Mr Smith was able to correspond with PFD on a range of matters concerning his employment entitlements, and his medical condition did not appear to adversely impact his ability to prosecute his claim; and
• it was difficult to believe that Mr Smith was not aware he could lodge a claim of unfair dismissal without representation.

[10] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

...

394(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).

391(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] On the information before me, I am satisfied that the application was made some 76 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  1which 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.”

[12] Mr Smith submits that that the reasons for the delay are based on his lack of knowledge of his ability to lodge a claim whilst unrepresented and the impact of his depression and anxiety.

[13] Mr Smith claims that he was impacted by depression and/or anxiety and infers that this prevented the lodgement of his application. No supporting medical evidence was provided to substantiate this claim. I note that Mr Smith was able to correspond with PFD concerning events that occurred prior to his termination and make representations as to how they were in conflict with the applicable laws. I am not convinced that the Mr Smith’s medical condition adversely impacted on his ability to lodge a claim.
[14]
Mr Smith submits he was unaware that he could lodge a claim without representation until late February or early March 2016. Information concerning unfair dismissal processes and the capacity of persons to lodge a claim is freely available on the Internet and by telephone from the Fair Work Ombudsman and the Fair Work Commission. I am unable to regard this circumstance as exceptional.

[15] Having considered the entirety of the material before me, I am not satisfied that Mr Smith has established that the reason for the significant delay in this matter represented an exceptional circumstance. An extension of time for the lodgement of an unfair dismissal application does not simply follow from an employee stating that he was depressed or anxious, or that he was unaware he could have lodged a claim without representation.

[16] Mr Smith became aware of the termination of his employment (at the latest) on the day after on the date upon which it took effect. On 6 January 2016, Mr Smith consulted with the NUW and on 8 January 2016, the NUW advised him that an unfair dismissal application would not achieve much and that they would not represent him. After that date, no action was taken to contest the dismissal until 7 March 2016 some 57 days later and 55 days after the time for lodgement expired.

[17] There is no submission that Mr Smith was unaware of the 21 day time limit.

[18] There is no submission before me that the delay has resulted in prejudice to the employer, and accordingly I have determined that prejudice to the respondent is a neutral factor.

[19] As to the merits of the application, the parties both contend they are in strong position on this issue. As the evidence in support of these contentions is unable to be tested I have regarded the merits of the application as a neutral factor.
[20]
Considerations of fairness, relative to other persons in similar positions is not a relevant consideration in this matter.

[21] I have concluded that the material before me does not establish that Mr Smith’s circumstances can be regarded as exceptional, so as to warrant an extension of time. The application will be dismissed on this basis and an Order 2 giving effect to this decision will be issued.

COMMISSIONER

Appearances (by telephone):

D. Smith, on his own behalf.

M Answar, on behalf of the PFD Food Services Pty Ltd.

Hearing (Conference) details:

2016.

Adelaide:

April 4.

 1   2011 FWAFB 975.

 2   PR578920.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR578919>