Daniel Sorrell v Hutt Street Centre
[2016] FWC 4790
•21 JULY 2016
| [2016] FWC 4790 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daniel Sorrell
v
Hutt Street Centre
(U2016/2872)
COMMISSIONER PLATT | ADELAIDE, 21 JULY 2016 |
Application for relief from unfair dismissal - extension of time not granted.
[1] On 16 June 2016, Mr Sorrell lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by the Hutt Street Centre.
[2] In his application, Mr Sorrell stated that he was advised of the termination of his employment on 29 March 2015 and the dismissal took immediate effect.
[3] On 20 June 2016, the Commission corresponded with both Mr Sorrell and the Hutt Street Centre and advised that the extension of time issue would be considered at a telephone conference on 13 July 2016. Substantial information about the extension of time issue was provided to the parties. Mr Sorrell was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 4 July 2016.
[4] Mr Sorrell provided written submissions dated 4 July 2016 (together with a number of exhibits), 10 July 2016 and 12 July 2016.
[5] The Hutt Street Centre provided a F3 Employer Response Form on 28 June 2016 and written submissions on 8 July 2016.
[6] Mr Sorrell participated in the telephone conference. Ms Bolzon, of counsel, represented the Hutt Street Centre. I unsuccessfully sought to make a recording of the conference. The bulk of the matters discussed in the conference were contained in the written submissions.
[7] At the conference, Mr Sorrell confirmed that he began completing an online unfair dismissal application on the Commission’s website the day following dismissal and was aware that there was a time limit for lodging applications, but was unsure of what that limit was.
[8] Mr Sorrell also confirmed he sought legal advice from two sources and stated that he may have discussed the time limit with his advisors.
[9] The portions of the Mr Sorrell’s submissions relevant to the extension of time considerations can be summarised as follows:
- Mr Sorrell’s inability to complete the application due to stress and his difficulty in coming to terms with the dismissal;
- A decision to delay lodgement pending obtaining reference, legal opinions and investigating the possibility of civil litigation;
- the complexity of the matter, the fact Mr Sorrell was unrepresented, his view that the application required a significant amount of supporting documentation and the work required to construct the case, all which was beyond his physical and mental capabilities at the time; 1 and
- The impact of illness and sinus complications.
● Mr Sorrell became aware of the termination on 29 March 2016;
● The termination of his employment was caused by the combined effects of cigarette smoke, inadequate ventilation and unreasonable indoor temperature and humidity that contributed to his chronic sinus condition. This environment resulted in Mr Sorrell having no alternative other than to resign from his employment. In addition, Mr Sorrell referred to bullying and harassment as a contributing reason for his resignation;
● The application was made on 16 June 2016;
● The delay in making the application was caused by a number of factors including:
[10] In support of the impact of his medical condition Mr Sorrell submitted a letter dated 21 June 2016 in which Dr McGee stated:
“Since September of last year he [Mr Sorrell] has had several visits hear (sic) and to specialists [a psychiatrist, and ear nose and throat] relating to work stresses at Hutt Street Centre and to severe sinus infection that ended up in surgery in late May of this year. He has had some medications that affected his mental state [refer to Dr Ewing’s letter. His stresses, pains, medication [including prednisone up to 50mg/day], infection [pre-and post surgery], surgery over these several months have impaired his capacity to complete the large amount of paperwork he has had to submit.”
[11] The Hutt Street Centre opposed an extension of time and submitted that:
● Mr Sorrell was not dismissed and the termination was by way of resignation;
● The merits of the application are poor;
● Mr Sorrell has failed to demonstrate exceptional circumstances within the meaning of the Act and the application should be dismissed; and
● It would be prejudiced by a decision to extend the time with respect to the cost and time in answering the application.
[12] Section 394 relevantly states:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(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.”
[13] On the information before me, I am satisfied that the application was made some 79 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 2 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.”
[14] The submissions provided by Mr Sorrell state that he commenced completing the unfair dismissal application the day after the dismissal. 3 I note that the first page of the Commission’s unfair dismissal application form (Form F2) contained Commission’s website contains the following instruction, “lodge your application, along with any accompanying documents, with the Commission within 21 calendar days after your dismissal took effect.” I find that having commenced to complete this form Mr Sorrell should have been aware of the time limit on 30 March 2016.
[15] Mr Sorrell states he was suffering from an illness and stress which arose from his employment and subsequent termination. From 25 May 2016 these circumstances were compounded by Mr Sorrell’s hospitalisation.
[16] 57 days had passed between the date of Mr Sorrell’s termination and his hospitalisation. This means that had Mr Sorrell submitted an application immediately prior to being hospitalised, it still would have been made 35 days out of time. Dr McGee’s letter relates to the entire period between the dismissal and 21 June 2016 and states that Mr Sorrell’s capacity to complete the large amount of paperwork was impaired.
[17] The unfair dismissal application process commenced by Mr Sorrell on 30 March 2016 required him to complete a six page form. Mr Sorrell was well enough to seek legal advice and investigate the possibility of civil litigation in the week following the dismissal and on 5 April 2016 he communicated his desires concerning an employer’s reference at length in an email. This appears to be inconsistent with the contention that he was incapable of completing an unfair dismissal application.
[18] An alternative explanation for the delay was that Mr Sorrell made a conscious decision to wait pending receipt of a reference and a review of his civil litigation options with respect to his insurance policy.
[19] I accept that Mr Sorrell’s hospitalisation would have impacted his ability to lodge a claim but recognise that by this stage the application was already considerably out of time.
[20] In terms of the merits of the application, I have reviewed the material and information provided by Mr Sorrell. I have noted that:
● Mr Sorrell resigned his employment following various complaints which he made about smoking adjacent to his workplace and about the temperature in the office environment;
● Mr Sorrel made various complaints about certain managers; and
● the Hutt Street Centre’s position that the applicant resigned in writing.
[21] As the evidence in support of each party’s contentions is unable to be tested, I have regarded the merits of the application as a neutral factor.
[22] The Hutt Street Centre argues that an extension of time would prejudice its position. Whilst this may be the case; I have not founded my decision in this matter on that premise.
[23] Considerations of fairness relative to other persons in similar positions do not generally support an extension of time.
[24] Having considered the material before me, I am not satisfied that Mr Sorrell has established that the reason for the significant delay in this matter represents exceptional circumstances so as to warrant an extension of time. The application will be dismissed on that basis and an Order (PR582882) giving effect to this decision will be issued.
COMMISSIONER
Appearances (by telephone):
D Sorrell on his own behalf.
S Bolzon (of counsel) on behalf of the Respondent.
Hearing details:
2016.
Adelaide:
July 13.
1 Mr Sorrell, 4 July 2016 Submissions Paragraph [4.1].
2 [2011] FWAFB 975.
3 Mr Sorrell, 10 July- Submission Paragraph [8.5].
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