Daniel Racek v DP World Sydney Limited
[2018] FWC 5809
•29 August 2018
[2018] FWC 5809
Due to a system error, the attached document issued with codes [2018] FWC 5001, PR620296 issued on 29 August 2018 has been re-issued to correct document referencing.
Yota Amanatidis
Relief Associate
Dated 14 September 2018
| [2018] FWC 5809 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application For Unfair Dismissal Remedy
Daniel Racek
v
DP World Sydney Limited
(U2018/4742)
| Commissioner Johns | sydney, 29 August 2018 |
Application for relief from unfair dismissal - whether to extend time for lodging the application.
Introduction
The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. [1] However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.[2]
This decision is first about whether the application made by Daniel Racek (Applicant) on 7 May 2018 (UFD Application) against his former employer DP World Sydney Limited (Respondent) is out of time and, if so, about whether the Commission should allow the Applicant a further period for lodgement of his application for an unfair dismissal remedy.
The jurisdictional objection
On 5 June 2018 the Respondent lodged its Form F3-Employer Response to Unfair Dismissal Application. At that time it took no objection to the UFD Application being out of time. However, on 2 July 2018 it lodged a Form F4-Objection to Unfair Dismissal Application objecting to the UFD Application on the basis that, it contended, it was out of time (i.e. lodge more than 21 days after the dismissal took effect). The Respondent claimed that the termination took effect on 13 April 2018 and as such the UFD Application was due on 4 May 2018. Noting that the UFD Application was filed on 7 May 2018 the Respondent further contended that the UFD Application was three days late.
On 6 July 2018 the Commission wrote to the Applicant inviting him to submit a written statement about why he thought there were exceptional circumstances warranting the grant of an extension of time.
On 12 July 2018 the Applicant explaining a range of circumstances relating to:
a) very personal matters leading up to the Respondent’s decision to terminate his employment;
b) the purported termination on 13 April 2018;
c) what he thought was an internal review of the decision to terminate his employment; and
d) the fact that he never received the termination letter which was said to have been sent by courier to him.
He also contended that based on his interpretation of the Acts Interpretation Act 1901 (Cth) his application was not out of time.
On 13 July 2018 a Commission officer explained to the Applicant why his interpretation of the Acts Interpretation Act 1901 (Cth) was incorrect and the basis for the assessment that the UFD Application was 3 days late.
On 20 July 2018 the Applicant wrote another letter of explanation. Amongst other things the Applicant said that the first time he saw the letter of termination was on 9 May 2018 (i.e. after he had filed his UFD Application).
The matter having not been resolved administratively it was allocated to me on 26 July 2018. On that day I issued directions for the parties to file in the Commission and serve on each other submissions and witness statements in relation to the jurisdictional objection. They were required to do so by 2 August 2018. The matter was then listed for an extension of time hearing (EOT Hearing) on 10 August 2018.
On 2 August 2018 the Respondent filed a written submission. It filed no evidence.
The EOT Hearing
At the EOT Hearing on 10 August 2018:
a) the Applicant represented himself;
b) the Respondent was represented by its General Counsel, Jessica Blomfield.
During the EOT Hearing the Applicant gave evidence that he attended a meeting with his then solicitor on 4 May 2018 and that he had instructed them to file the UFD Application on that day. Noting that evidence and the fact that the UFD Application was not filed until 7 May 2018 an issue arose about whether the Applicant was a victim of representative error. It was necessary to adjourn the EOT Hearing in order that an explanation could be sought from the Applicant’s former solicitor.
On 10 August 2018 I wrote to the Applicant’s former solicitor explaining the evidence that had been received and asking her to provide a copy of her file note of her meeting with the Applicant. I also asked her to provide a short affidavit about the meeting, the advice she gave about the 21 day time limit and the instructions she received from the Applicant.
On 15 August 2018 the Applicant’s former solicitor complied with my request. Her file note and her affidavit attested to the meeting with the Applicant having occurred on 7 May 2018 (and not 4 May 2018). The Applicant was provided with an opportunity to respond. On 17 August 2018 the Applicant indicated that, after his wife having prompted his memory, he accepted that the meeting with his former solicitor occurred on 7 May 2018. He explained that there had been an appointment set up for 4 May 2018 but that it had been rescheduled. I accept the inadvertence of the error made by the Applicant about the meeting having occurred on 4 May 2018. Consequently, on the face of the material it seemed that the UFD Application was out of time by 3 days through no representative error.
The EOT Hearing resumed on 17 August 2018. At that hearing the Applicant maintains that, although he had been told on 13 April 2018 that his employment was terminated, he was told by his union that the decision was under review and that he had no notice of the decision to terminate his employment having been confirmed until 9 May 2018 (at which time he was sent by email the letter of termination dated 17 April 2018 which referred to the decision communicated on 13 April 2018). Consequently, the effective date of termination became an issue to be resolved in the proceeding.
Because the Respondent had not previously filed any evidence in relation to the matter I decided to provide it with a further opportunity to file evidence about the events of 13 April 2018, any decision to review the termination of employment and the communication of that decision to the Applicant.
On 23 August 2018 the Respondent filed three witness statements from the following people:
a) Craig Thomson, Chief HR Officer,
b) Maxwell Kruse, Chief Operations Officer, and
c) Bastiaan (Bas) Hokke, General Manager Operations.
Also on 23 August 2018 the Applicant filed in the Commission relevant screenshots of text messages and emails.
On 24 August 2018 Applicant indicated that he did not wish to cross-examine any of the Respondent’s witnesses. I had explained to the Applicant on 17 August 2018 that if he did not cross-examine the Respondent’s witnesses I would receive their evidence.[3]
Legislative scheme
Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:
(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.
Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group.[4] In that matter the Full Bench held the following in relation to “exceptional circumstances”:
[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.[5]
Facts leading up to and relating to the dismissal
Having regard to all of the material that has been filed in this matter and the evidence received during the EOT Hearings and filed subsequently, I make the following findings of fact:
a) On 23 January 1995 the Applicant commenced employment with the Respondent as a Stevedore at the DP World Sydney Terminal.
b) The Respondent is in the business of stevedoring operations involving loading, unloading and temporary storage of shipping containers for its customers, who are primarily shipping and transport companies.
c) The work environment is safety sensitive and work must be performed by Stevedores with a highest level of safety standard adherence, to ensure the safety of themselves, their colleagues and the Respondent’s customers.
d) The Respondent has an Alcohol and Other Drugs Policy (AOD Policy). Stevedores must not test positive in breach of the AOD Policy (i.e. have a blood alcohol reading of more than 0.02%).
e) On 7 April 2018 the applicant attended for evening shift (14:00 hours - 22:00 hours).
f) On that day the Applicant was selected for a random testing. At 16:31 hours the Applicant had a blood alcohol reading of 0.118%.
g) In accordance with the AOD Policy the applicant was required to wait for 30 minutes and undergo a second test which was then sent to a laboratory for confirmation.
h) The Applicant was stood down on pay while the second test result was being confirmed. He was offered a cab-charge and access to the Respondent’s Employee Assistance Program.
i) Despite the initial blood alcohol reading the Applicant elected to drive out of the Respondent’s premises.
j) At some point after 7 April 2018 the Respondent received the second reading. The second reading was 0.116%.
k) On or about 11 April 2018 to Respondent asked the Applicant to attend the meeting to discuss the events of 7 April 2018.
l) On 12 April 2018 there was a first meeting. The Applicant provided an explanation about his conduct.
m) On Friday, 13 April 2018 there was a second meeting (which was adjourned at one point and then reconvened). What happened at and after this meeting is of vital importance to whether the UFD Application was out of time. I deal with those issues below. The meeting was attended by:
i. the Applicant,
ii. Brad Dunn, MUA Site Committee Member as the Applicant’s support person,
iii. Karlie Hucker-Stewart, HR Manager, and
iv. Bas Hokke, GM Operations Sydney Terminal.
n) At 11:49 am on 13 April 2018 the Applicant left the Respondent’s worksite.
o) Ms Hucker-Stewart was instructed by Mr Hokke to prepare a termination letter.
p) At about 7 pm on Friday, 13 April 2018 the Branch Manager, Sydney Branch of the MUA, Paul McAleer, called Mr Hokke. Mr McAleer explained to Mr Hokke that he would be providing him with a letter from the Applicant. Mr Hokke promised to keep it confidential. It was Mr Hokke’s evidence that,
“12. During this call Mr McAleer not expressly asked that I do anything other than review the letter. My understanding of his expectation was that upon reviewing the letter I might be persuaded to revise my decision relating to Mr Racek’s employment.”
q) On Sunday, 15 April 2018 the Applicant wrote an impassioned letter to Mr Hokke (15 April Letter). He claimed that he had lied when providing explanations about the events of 7 April 2018 (in the meetings conducted on 12 and 13 April 2018). The Applicant then set about explaining what he claimed to be the truth of the situation. He admitted to bringing alcohol to work and consuming it. He wrote about his low mood on that day. He then sought to explain the poor decisions he made by describing matters which are deeply personal to him and distressing to read. For present purposes it is not necessary for me to repeat them here. The Applicant wrote,
“On ending this letter, I once again pleaded and request that you might find in your heart and soul to forgive me for my actions and reconsider reinstating me within the company.”
r) On 16 April 2018 Mr Hokke received the 15 April Letter from the Applicant via Mr McAleer. He also received a draft of the termination letter.
s) Later on 16 April 2018 Mr Hokke and Mr McAleer spoke twice. In the second telephone discussion the discussion was to the following effect,
Mr Hokke: “There is nothing in the letter that gives me cause to want to change my decision, it is the end of the line.”
Mr McAleer: “If you won’t change your decision I’ll speak to Max [Kruse, the Chief Operations Officer].”
t) On 17 April 2018 the Respondent paid the Applicant his lawful entitlements upon termination including five weeks’ payment in lieu of notice. The final payment payslips records the termination date is 13 April 2018.
u) Also on 17 April 2018 Mr Hokke confirmed with Ms Hucker-Stewart that the termination letter should be sent to the Applicant. She sent it by courier. However, the Applicant claims he did not receive the letter (until 9 May 2018). I note that the letter did not contain the same address as that provided by the Applicant in the UFD Application. The letter of termination refers to the type of street called a “Way”, whereas the Applicant lives in a type of street called a “Place”. While it is a slight difference it may have been material and likely explains why the Applicant never received the letter. The Respondent was unable to provide proof that the letter was ever delivered to the Applicant. I find that it was not.
v) On 18 April 2018, being dissatisfied with the response from Mr Hokke, Mr McAleer contacted Mr Kruse. He asked him to review the 15 April Letter. This lead to a meeting being convened on 19 April 2018.
w) On 19 April 2018 a meeting occurred between Mr Hokke, Mr Kruse and Mr McAleer. Mr Hokke’s evidence was that,
“24. … I recall the conversation being centred around Mr Racek’s mental health, concern for his well-being and what medical support he had or was able to access in addition Mr McAleer was seeking that Mr Racek be reinstated.”
x) No commitment was made by Mr Kruse or Mr Hokke to overturn the decision to terminate the Applicant’s employment or to reinstate him. However, it was agreed that there would be a further meeting arranged to discuss a support plan for the Applicant and to consider re-employment of him.
y) On 27 April 2018 there was a meeting between Mr Hokke, the Applicant and Craig Thomson (the Respondent’s Chief HR Officer). Mr Hokke explained the intention of the meeting “was to establish a mental health program with specific milestones the aim of returning Mr Racek to full fitness over an estimated period of 3 to 6 months.”[6] Mr Hokke says he made it clear that “the termination would be maintained at this point…”[7]
z) On 30 April 2018 Mr McAleer spoke with Mr Hokke. He was unhappy that the Applicant had not been reinstated on 27 April 2018. Mr McAleer again called Mr Kruse.
aa) Also on 30 April 2018 there was a text exchange between Mr Hokke and the Applicant as follows:
Mr Hokke: “Daniel I spoke with [Mr McAleer] and understand that is why you called me. It’s being sorted out with [Mr Kruze] who will be called by [Mr McAleer] today. The intention and outcome is still supposed to be the same but let’s see how the two gents discuss it further.”
Mr Racek: “Hi Bas, Thank you for your reply. After the meeting on Friday I was needing further clarification about a couple of issues that were discussed in the day. Tried calling you earlier to discuss. Hence a phone call to [Mr McAleer]. Look forward to hearing from Paul. Cheers.
Mr Hokke: “Copied Dan. We appear to be in agreement on the desired outcome at the end of the road but I have to follow a slightly different path toward that outcome anyway, I do hope to make it reality for your well-being even following the different road if that’s what we have to do. Stay strong buddy!”
bb) 4 May 2018 was the last day the UFD Application could be filed to be within the 21 day time period provided for the filing of an unfair dismissal application.
cc) On 6 May 2018 Mr McAleer sent an email to Messrs Kruze and Hokke. He wrote,
“Can you update me as to what we discussed last week and you committed to getting back to me last week in relation to Daniel Racek.
The position of the Company agreed to at a meeting in which Daniel’s termination is rescinded and a new discipline meeting established after Daniel completes the Company agreed mental health rehabilitation whilst using leave must be put in place.
I look forward to your undertaking at your earliest convenience.”
dd) On 7 May 2018 the Applicant attended a meeting with his then solicitor. He instructed his solicitor to file the UFD Application. They did so that day. The UFD Application records the following information:
“1.2 What date were you notified of your dismissal?
13 April 2018
1.3 What date did your dismissal take effect?
Uncertain, as the employer has raised the possibility of reinstatement”
ee) On 9 May 2018 the Applicant received a copy of the termination letter dated 17 April 2018. This was the first time he had seen the letter.
ff) On the cessation of his employment the Applicant earned $133,105.90 per annum
When did the termination take effect?
There is a dispute about when the dismissal took effect. In effect the Applicant says he is uncertain about the date because of the events that followed the meeting on 13 April 2018. He notes that he never received the termination letter until 9 May 2018 (i.e. 2 days after he commenced the UFD Application).
The Respondent says the termination occurred on 13 April 2018. This is an important matter because if the Applicant is correct his application for an unfair dismissal remedy is likely not out of time.
It is well established that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[8]
In the present matter, the letter of termination was not received by the Applicant until 9 May 2018 (i.e. 2 days after he filed the UFD Application). I accept his evidence that he did not receive it on 17 April 2018.
However, a dismissal can be communicated orally.[9]
The witness statement of Mr Hokke is instructive on the matter. It was the uncontested evidence of Mr Hokke that,
“9. At the conclusion of [the 13 April 2018] meeting I made a decision to terminate Mr Racek’s employment. To the best of my recollection I use the following words:
Mr Hokke: ‘Unfortunately there is no way back, this is the worst case we have seen of a breach of the alcohol, I have no other choice but to let you go.’
Mr Racek: ‘it was a mistake, show some leniency, do not affect four other lives.’
Mr Hokke: ‘I have no other choice sites termination.’
Ms Hucker-Stewart: ‘your pager outstanding entitlements, provided with a letter confirming the termination and EAP details.’
Having regard to all the evidence I find that the dismissal took effect on 13 April 2018. I do so because I am satisfied that when the Applicant left the meeting on 13 April 2018 he understood in certain and unequivocal terms that his employment had been terminated. He conceded as much before me.[10]
Following that meeting the MUA were an advocate for the reinstatement of the Applicant. The MUA encouraged the Applicant to write a personal letter of explanation. The MUA provided that letter to Messrs Kruze and Hokke. Mr Hokke said he would read the letter and consider his decision. There was a meeting with the Applicant on 27 April 2018 to discuss how he might regain employment with the Respondent. The intention to reinstate or re-employ the Applicant seems to have been genuine. However, all efforts appear to have stopped when the Applicant commenced the UFD Application.
What follows from this analysis and the findings of fact that I have made above is that nothing that occurred after 13 April 2018 altered the decision, clearly communicated on that day, to terminate the Applicant’s employment.
Consequently, I find that the UFD Application was out of time.
Consideration of s.394 criteria
Paragraph 394(3)(a) - The reason for the delay
I have decided that the termination took effect on 13 April 2018. There are 24 days between 13 April 2018 and when the UFD Application was filed on 7 May 2018. That is to say the UFD Application was 3 days late.
Before me the Applicant conceded that he did not know about the 21 day time limit. He also conceded that he understood that “ignorance isn’t an excuse.”[11] Oddly it seems the MUA never advised the Applicant about the opportunity to make an application for unfair dismissal. I accept the Applicant’s evidence that he only learned of the opportunity when he met with his then solicitor on 7 May 2018. He promptly instructed them to make the UFD Application. They did so that day.
The Applicant explained the matter this way:[12]
Commissioner: “… So in your own words can you tell me why your application was three days late?”
The Applicant: “Because as far as I was aware the actual termination didn’t take official precedents because it was still under further investigation because of certain information that I’d brought forward to the terminal manager. So he said that it hold back on the termination letter and not make it official as such until they had gone to process that.”
Commissioner: “Well, DP World say that there was a definite decision to terminate your employment on 13 April and that in the days after that – I see that you wrote a letter to them – and in the days after that they were considering or reviewing whether or not the termination should stand. Do you accept that?
The Applicant: “Yes.”
Commissioner: “So what they’re saying is that the termination took effect, there was a review but in a sense the timeframe continued to tick. So am I understand what you’re saying is that you thought the review period meant that the termination had not been effected; is that what you’re saying?
The Applicant: “Yes, I’d received no official documentation along those lines as saying it was a do all, end all scenario on the 13th. That’s because of the pending situation, and that was from the terminal manager I took that as gospel and I trusted the fact that that was the case and which he was dealing with.”
Commissioner: “Well, what did the terminal manager say to you?”
The Applicant: “That was relayed via my union representation and that after he read the letter that I’d forwarded to him that they were exceptional circumstances and that he would hold back on the termination letter and – until he reviewed it further and I’m assuming that he was going to take that up the chain through corporate and he held off on posting that letter to me and making that, in my view, an official clause.”
I am satisfied that the events that occurred in the 21 days following the termination of the Applicant’s employment were uncommon. A termination of employment had been effected, but it was never confirmed in writing with the Applicant. That is not to say that termination has to be in writing, but in the present matter it led to an unusual circumstance. Through the advocacy of the MUA the Respondent agreed to put in place a program to facilitate the Applicant’s return to employment. That does not mean that the intervening period was a reversal of the decision to termination or a suspension of any sort. The termination had definitely occurred. But it led to a period of uncertainty for the Applicant. The meeting on 27 April 2018 and the text messages between the Applicant and Mr Hokke gave rise to a level of expectation that the Applicant might be returned to the workplace. All this has to be considered in the context of an Applicant who has no formal education beyond the attainment of the School Certificate (formally issued at the end of 10). Thereafter the Applicant “did a bit of freelancing bar work, labouring and then committed [himself] to DP World for 23 years”. In all the circumstances I am satisfied that this course of events is out of the ordinary.
Therefore, this factor weighs in favour of granting the Applicant a further period to make his application.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
It is uncontested that the Applicant first became aware of the dismissal on 13 April 2018. However, I have previously explained why this situation became less certain in the weeks after it was communicated.
Nonetheless, I consider that this factor weighs against granting the Applicant a further period to make his application.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
The Applicant took the following action to dispute the dismissal:
a) he wrote an impassioned personal letter on 15 April 2018;
b) he had his union actively pursue reinstatement for him;
c) he engaged a lawyer to file the UFD Application;
d) on being advised that he only had 21 days to make the UFD Application he promptly instructed his then lawyers to file it.
All things considered the Applicant actively disputed the dismissal.
The action taken by the Applicant to dispute the dismissal weighs in favour of granting the Applicant a further period to make his application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
On 2 August 2018 the Respondent submitted that,
“21. … if the Commission were minded to exercise their discretion the Respondent would be prejudiced in the following ways:
a. The Applicant would be afforded the benefit of access to a jurisdiction without having complied with the FW Act despite having professional representation providing the Applicant with an unfair advantage; and
b. Any findings of the merit of the application may prejudice the substantive matter in the event that it was to proceed.
22. The Respondent notes if the FWC are not persuaded by the prejudice that,
“the absence of a prejudice to the employer is usual in extension of time matters and does not provide a positive basis for finding exceptional circumstances warranting an extension of time of lodgement.”[13]
I am not satisfied that other than the usual prejudice associated with delay, the Respondent has established prejudice that should weigh against granting an extension of time.
The prejudice asserted by the Respondent weighs is neutral in relation to granting the Applicant a further period to make his application.
Paragraph 394(3)(e) - The merits of the application
In the matter of Kornicki v Telstra-Network Technology Group[14] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[15]
The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
It seems to me that, more likely than not, the Commission will find that there was a valid reason for the termination of the Applicant’s employment and further that he was afforded procedural fairness. His breach of the AOD Policy was significant in an industry where safety must be paramount. However, that would not be determinative of the UFD Application. There are a range of matters that the Commission is able to take into account. However, those are not matters that can be resolved at a jurisdictional hearing.
If the Applicant can establish to the satisfaction of the Commission that, despite the valid reason for the termination, there are other matters that render the dismissal harsh, unjust or unreasonable he may be able to establish that the termination was unfair. The 15 April Letter might be said to explain the events of 7 April 2018, but it may not excuse it. However, it would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.
For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.
Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
I am not satisfied that this is a relevant matter in the present circumstances.
Conclusion
When the s.394(3) factors are considered in totality, I am satisfied that they demonstrate circumstances that are out of the ordinary course, or unusual, or special, or uncommon. The circumstances are not regularly, or routinely, or normally encountered. Consequently, they are exceptional circumstances.
For the reasons set out above, on balance, in the exercise of my discretion, the Commission, as presently constituted, is satisfied that there are exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).
An Order to this effect will be issued with this decision.
I will now list the matter for further Directions and program it for a substantive hearing.
COMMISSIONER
Appearances:
Daniel Racek for himself.
Jessica Blomfield, in-house General Counsel and Company Secretary for the Respondent
Hearing details:
2018.
10 and 17 August.
Melbourne and Sydney.
[1] Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) (as in force on 25 June 2009) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
[2] Section 394(3) FW Act.
[3] Transcript PN123.
[4] [2011] 203 IR 1.
[5] Ibid [13].
[6] Witness Statement of Mr Hokke, paragraph 28.
[7] Ibid para 31.
[8] Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at para. 24.
[9] Plaksa v Rail Corporation NSW [2007] AIRC 333 (Cartwright SDP, 26 April 2007) at para. 8; citing Barolo v Centra Hotel Melbourne, Print Q9605 (AIRC, Whelan C, 10 December 1998).
[10] Transcript PN15 and PN18 where the Applicant accepts the UFD Application was 3 days late.
[11] Transcript PN24.
[12] Transcript PN19 – 22.
[13] Ozsoy v Monstamac Industries Pty Ltd[2014] FWC 249.
[14] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[15] Ibid.
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