Daniel Golding v Senwill Civil Pty Ltd T/A Senwill Civil

[2017] FWC 2089

[2017] FWC 2089

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Golding
v
Senwill Civil Pty Ltd T/A Senwill Civil
(U2017/1292)

COMMISSIONER PLATT ADELAIDE, 12 APRIL 2017

Application for an unfair dismissal remedy – extension of time application – application dismissed.

[1] Mr Golding 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 Senwill Civil Pty Ltd T/A Senwill Civil (Senwill) which took effect on 17 January 2017.

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

[3] Mr Golding’s application indicated that the application was made within the 21 calendar days from the dismissal taking effect.

[4] Senwill filed a F3 Employer Response on 21 February 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time and the employee was a casual who was not employed on a regular and systematic basis.

[5] On 28 March 2017, my Associate corresponded with Mr Golding and Senwill and advised that the extension of time issue would be considered at a telephone conference on 12 April 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, was provided to the parties. Mr Golding was directed to provide a statement concerning the extension of time and any documents to be relied upon by 6 April 2017. Senwill was invited to file any material in reply by 11 April 2017.

[6] Mr Golding provided a written submission summarised as follows:

• He worked as a casual employee who worked on a regular and systematic basis and was dismissed on 17 January 2017.



• The dismissal took effect on 18 January 2017.



• The application was emailed to the Adelaide Registry at 11:33pm on 7 February 2017 and was thus lodged in time. A mobile phone screenshot of the lodgement email in his sent items was provided.



• He prepared the Form F2 Unfair Dismissal Application earlier but was of the opinion that the outcome sought (reinstatement) was best achieved by contacting a Director of the employer direct.



• An email was sent to the Director (via his Assistant) at 11:07am on 6 February 2017, the Director responded at 11:20am that day and advised he would investigate the matter but as a result of him going overseas on 7 February 2017 he would revert the following week. Copies of the correspondence were provided.



• The application was lodged the following evening.

[7] Senwill filed submissions via email which are summarised as follows:

• Mr Golding had received advice from his union and thus knew of the time limit but has not provided good reasons as to why he failed to lodge the application on time.



• There were no extreme or unusual circumstances why the application was lodged out of time.



• Mr Golding knew his dismissal took effect at 7:00am on 17 January 2017 but has misrepresented this on his unfair dismissal application in order to fall within the required time limit.



• The Commission should not exercise its discretion to extend the time limit.

[8] A hearing was conducted by way of telephone conference on 12 April 2017. A sound file record of the telephone conference was kept. Mr Golding represented himself and Mr Daniel Roach of Roach Corporate Law represented Senwill.

[9] Mr Golding reiterated his submissions and also advised;

• He was in Adelaide at the time he emailed his application to the Adelaide Registry, and could not explain the time difference between the time the email was sent on his screenshot and the time that the Commission received his lodgement email (1.5 hours later at 1:03am on 8 February 2017).



• He believed his termination took effect on 18 January 2017 as his research showed that the date of dismissal is not counted when calculating the 21 day time frame.



• He commenced writing an email to the Director asking for his dismissal to be reviewed on 17 January 2017 but did not complete it until 6 February 2017.



• He sought advice from an unspecified lawyer, union and friends and did his own research.



• He sent an email to the Director on 6 February 2017.

[10] At the telephone conference, Senwill relied on the submissions filed and contended that there were no exceptional circumstances. Senwill did not suggest that the late application would cause prejudice.

[11] Section 394 relevantly states:

“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.”

[12] It is not disputed that the dismissal occurred on 17 January 2017. Mr Golding was advised on that day that his services were no longer required. I find that the dismissal took effect the same day.

[13] As to when the application was lodged, the Commission’s records indicate that the application was made at 1:03am on 8 February 2017. Despite my request, Mr Golding was unable to forward an exact copy of the lodgement email used to file the unfair dismissal application, sending instead a mobile phone screenshot which indicated the email was sent at 11:33pm on 7 February 2017. I am unable to verify the accuracy of this information. There are a number of circumstances which could explain the time difference. I prefer the Commission’s records as to the date the application was made.

[14] I find that Mr Golding’s unfair dismissal application was made 1 day outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[15] I have considered the provisions of s.394(3) 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.”

[16] I find that the first positive step to challenge the dismissal was made by Mr Golding 20 days after the dismissal on 6 February 2017.

[17] Mr Golding contended that he approached various other persons to research and discuss his position but provided no other evidence of any action to contest the dismissal.

[18] At the hearing, Mr Golding suggested that he commenced drafting the 6 February 2017 email to the Director on 17 January 2017.

[19] The applicant needs to provide a credible explanation for the entire period of the delay, 2 but has not done so.

[20] Mr Golding appears to have prevaricated for almost three weeks, I do not believe this constitutes an exceptional circumstance.

[21] There is no submission that the granting of an extension of time represents prejudice to Senwill.

[22] In terms of the merits of the application, the conduct of the application does not appear to be in dispute, the dispute relates to the whether the outcome was harsh, unjust or unreasonable. In addition, Senwill have provided evidence which indicates that Mr Golding’s casual employment was not regular and systematic, accordingly, I have regarded the merits as a factor which weights against the granting of an extension of time.

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

Conclusion

[24] For the reasons I have set out above, I am not satisfied that Mr Golding’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order 3 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr Golding, the Applicant.

Mr Roach of Roach Corporate Law on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

April 12.

1 [2011] FWAFB 975

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

 3   PR591838

Printed by authority of the Commonwealth Government Printer

<Price code C, PR591837>