Daniel Vandermay v Opal Specialist Aged Care T/A Opal Edgewood Park

[2014] FWC 8533

[2014] FWC 8533

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Vandermay
v
Opal Specialist Aged Care T/A Opal Edgewood Park
(U2014/12242)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 28 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mr Vandermay and the respondent ended on 12 August 2014. Mr Vandermay lodged his application at the Fair Work Commission on 4 September 2014. Mr Vandermay's application was lodged 2 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Vandermay. It contained no explanation for late lodgement.

[4] I wrote to Mr Vandermay on 11 September 2014 outlining the matters I was required to consider by the Act and asked him to provide a statement addressing these matters within 14 days. Mr Vandermay provided comprehensive material from solicitors Delves and Wain. This material is extracted below.

Statement of Daniel Vandermay

1. I received notification of my termination of employment on the 12 August 2014.

2. On the 18 August 2014, I contacted my Solicitors at the offices of Delves & Wain Solicitors and made an appointment for 10:00am on Tuesday 19th August 2014 to seek advice in relation to the termination of my employment.

3. At that appointment I provided my solicitor, Elliott Wain, with documentation provided to me from my employer.

4. My solicitor provided me with a blank Unfair Dismissal Application known as a form F2 and gave me certain advice in relation to my rights and requested I provide further documentation.

5. I completed a draft of that application and had a further appointment with my solicitor, Elliott Wain at 9.30 on Wednesday 20 August 2014 where I gave that draft of the dismissal application to him. I signed a copy of the unfair dismissal application and was aware that my solicitor was to forward that to the Fair Work Commission for filing.

6. Subsequent to this I received notice that my application had been filed one day late.

7. I have been advised by my Solicitor that it was filed late due to an administrative error in his office.

8. I believe that I have taken all reasonable measures available to me to ensure that my application was lodged prior to the expiration of the twenty-one (21) days that I had available to me to lodge the application and the only reason that it was not lodged was due to an administrative error at my Solicitors office.

9. I do not believe that there has been any prejudice to my employer because of the one day delay in filing my application outside of the required twenty-one (21) days.

.....

In relation to the incorrect and inappropriate manual handling, I now attach a copy of a short statement provided to me by a work colleague who assisted me with one of the patient transfers, which my employer alleges I undertook incorrectly. I [sic] relation to the second allegation of incorrect handling, I state that I never physically lifted June Thane up the bed for breakfast. This allegation is completely false and without basis.

In relation to the excessive and unexplained work place absenteeism, that I have been alleged to have taken, I state that I have had two deaths in my family and I believe I took six (6) days off work to attend both funerals which were located in Queensland.

I also had from the 21 July 2014 to 27 July 2014 off work in relation to an illness under my sick leave provisions and I provided a medical certificate to my employer.

I believe my application has substantial merit

Statement of Elliott John Wain, Solicitor

1. I had an appointment with Mr Daniel Vandermay on Tuesday 19 August 2014. At that appointment I provided Mr Vandermay with certain advice in relation to his rights under the Fair Work Act 2009 and required Mr Vandermay to obtain certain further information for me so that I could fully appraise him of his rights.

2. Mr Vandermay again attended my office at 9:30am on Wednesday 20 August 2014. Mr Vandermay provided me with further documentation and information and he completed and signed a form F2 - Unfair Dismissal Application.

3. I believe that there was certain further information that I required Mr Vandermay to obtain and I believe it was delivered to my office prior to on or before 22 August 2014. I subsequently diarised the matter for Tuesday 26 August 2014 to confirm my advice to Mr Vandermay and to send the application for lodgement, I gave the Application to a staff member to forward to the Fair Work Commission with a note that I [sic] was to be faxed as well as sent by express post to avoid any issues in regards to the expiration of the twenty-one (21) days. Unfortunately, it appears that this was not actioned and the application was not sent until or about the 1st or 2nd of September 2014. This has resulted from an administrative breakdown in my office. Certainly, Mr Vandermay had taken all steps which he could have possibly have taken to have this application lodged within the twenty-one (21) day time frame. Certainly, the administrative error that led to the delay in filing the application was completely outside of Mr Vandermay’s control.

4. I believe that Mr Vandermays application has substantial merit on the information that he has provided to me. Mr Vandermay is blameless in relation to the delay and I believe that Mr Vandermay has taken all the available action to him to contest this decision prior to the expiration of the twenty-one day time limitation.

[5] The respondent had not understood that it could oppose an order extending the time for lodgement. After being requested to indicate its attitude it lodged an amended Employer Response. The respondent’s submission is set out below.

“As discussed, we (the Employer) still object to the application made by Mr Vandermay particularly given that fact that his application fell outside the required time frame.

It may have only been two days outside of the application time however, he was advised on the day of his termination both verbally and in writing that his employment was terminated effective immediately and aware  of his termination date. Therefore we believe that he had enough time to prepare his application in the required timeframe.”

[6] I issued an Order allowing Mr Vandermay’s application for an extension of time on 13 November 2014 1.

[7] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(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.

[8] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the Full Bench 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.” [Endnotes not reproduced]

[9] For exceptional circumstances to arise as contemplated by s394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[10] I considered the various criteria to which my attention is directed by s.394 (3) of the Act.

reason for the delay-s.394(3)(a)

[11] The reasons Mr Vandermay provided for his delay in lodgement was representational error on the part of the solicitors to whom he had provided instructions.

[12] I was persuaded that Mr Vandermay’s explanation was out of the ordinary, unusual or uncommon. I was satisfied that he was not at fault and that the consequences of his solicitor’s error and delay should not be visited upon him.

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

[13] Mr Vandermay became aware of the end of his relationship with the respondent on 12 August 2014.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[14] Mr Vandermay disputed his dismissal by lodging this application.

prejudice to the employer-s.394(3)(d)

[15] I was satisfied that there would be no greater prejudice to the respondent caused by Mr Vandermay's application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[16] Merit was a neutral issue in my consideration of this application.

fairness as between Mr Vandermay and other persons in a similar position-S.394(3)(f)

[17] There was no issue of fairness in relation to any other person in a similar position.

[18] Having considered all of the matters to which my attention is directed by the Act I was satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis allowed the application. I was satisfied that Mr Vandermay’s circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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