Danny Woolmer v Downer EDI Works

[2015] FWC 1561

[2015] FWC 1561

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Danny Woolmer
v
Downer EDI Works
(U2015/147)

DEPUTY PRESIDENT SAMS SYDNEY, 10 MARCH 2015

Application for relief from unfair dismissal - application lodged ‘out of time’- consideration of ‘exceptional circumstances’ - dismissal alleged to be not a genuine redundancy - unawareness of 21 day time limit - delay due to request for further information, final payments and separation certificate - ‘exceptional circumstances’ not made out - application dismissed.

[1] This decision arises from an application for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394(3) of the Fair Work Act 2009 (the ‘Act’). Danny Woolmer (the ‘applicant’) was made redundant from his employment with Downer EDI Works (the ‘respondent’) on 12 December 2014. The applicant attempted to lodge his application with the Fair Work Commission (the ‘Commission’) by way of email on 11 January 2015, but did not submit the relevant Form F2 Unfair Dismissal Application form. The applicant successfully lodged an application for an unfair dismissal remedy on 29 January 2015. The Act mandates a 21 day time limit for initiating an application for a remedy for unfair dismissal. His application was therefore lodged at least 27 days outside the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for Unfair Dismissal and the Form F3 Employer’ Response. The Commission wrote to the applicant on 6 February 2015, outlining the matters I am required to consider under s 394(3) of the Act, and asking him to provide a statement addressing these matters within 14 days. The applicant provided a hand written statement of two pages. Having considered this material, I issued an Order refusing an extension of time and dismissed the application on 18 February 2015. These are my reasons for doing so.

RELEVANT STATUTORY PROVISIONS AND PRINCIPLES
[3] The relevant legislative framework, governing the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘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.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, the Full Bench of the Commission 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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].’

[5] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing of an unfair dismissal application. Put another way, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application ‘out of time’; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia[2014] FWCFB 2288 succinctly described the Commission’s decision making process under 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I now turn to each of the criteria under s 394(3) of the Act.

CONSIDERATION

Reason for the delay (s 394(3)(a))

[6] The applicant’s response to the letter sent by the Commission on 6 February 2015 stated that he was unaware of the relevant 21 day statutory time limit for filing his unfair dismissal application. He also disclosed that enquiries made by himself into his redundancy, delayed the lodgement of his application. The reasons given by the applicant are set out below:

‘I lodged my FWC case for unfair dismissal on the 11.01.2015. I have since been informed that I should have lodged this claim on or before the 02.01.2015. Listed below are the reasons for my claim being lodged late.

1. I was of the belief that I could not lodge any claim until my former employer had given me a letter of separation and a breakdown of my redundancy payments. After several phone calls I received my letter of separation and a payment breakdown on the 9.01.2015.

2. When I was told I would be made redundant, I asked why Downer Employees were being made redundant when we had several projects still ongoing and was told the work would be done by contractors.

3. I have been a diligent employee of Downers for almost 9 years with an excellent work, safety and attendance record. When I asked why I was /would be one of the first to be made redundant, I was told my project was finished (it is still ongoing now) and that they could put someone else off but made it very clear that I would be “putting one of my mates out of a job for the sake of a few weeks pay”, and was asked “how would I feel about doing that?”. I was also told by David Burkitt that the “Industry had let him down” and I was to be “the first of many redundancys (Sic) in the coming weeks”.

In closing I feel Downers have acted very poorly in this whole process and feel I have a legitimate claim for lost wages.’

[7] I am not persuaded that the reasons given by the applicant constitute ‘exceptional circumstances’, within the meaning of s 394(3) of the Act. The applicants’ lack of awareness as to when he was required to lodge his unfair dismissal, is clearly not an ‘exceptional circumstance’ within the meaning of the Act: see Nulty at [14]. The 21 day time limit for filing an unfair dismissal application commences from the date of an employee’s dismissal. That 21 day time limit is not dependent on the date on which an employee finalises their termination entitlements. The applicant chose to delay filing his application until he had received a letter of separation and a breakdown of redundancy payments. It is not uncommon for dismissed employees to challenge the payments made to them on termination. Often the payments are not made for many weeks or are simply delayed because of a business’s pay cycle. Waiting for these payments, or a separation certificate, does not alter the fact that the applicant knew when he was dismissed and should have acted on that basis.

[8] In any event, the Commission’s website provides extensive information and guidance as to both workplace rights and the process of filing an unfair dismissal application. Furthermore, the applicant has not provided any reason as to why he could not seek advice from a representative (legal or otherwise) and/or allow that representative to lodge the application on his behalf.

[9] As to the applicant’s other reason, being his request for information from the respondent pertaining to his redundancy, similarly is not relevant to the 21 day time period for lodgement. The 21 day time period for filing an unfair dismissal application does not commence from the time an employee has obtained further information relating to their alleged unfair dismissal. Accordingly, I am unable to conclude that there were ‘exceptional circumstances’ for the applicant’s delay in filing his unfair dismissal application.

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

[10] The evidence demonstrates that the applicant was aware that he was dismissed on 12 December 2014. The termination certificate issued by the respondent and provided to the applicant indicates that the applicant’s employment was terminated immediately. This is a neutral factor in this case.

Any action taken by the person to dispute the dismissal (s 394(3)(c))

[11] The applicant did not specifically address this criterion. The applicant stated that he ‘...asked why Downer Employees were being made redundant’. Aside from these enquires, there is nothing to indicate that the applicant initiated any action to dispute his alleged unfair dismissal until filing this application with the Commission on 29 January 2015. An assessment of this criterion weighs against the grant of an extension of time.

Prejudice to the employer (s 394(3)(d))

[12] Given that the application was lodged 27 days outside of the statutory time limit, I accept that there is a reasonable degree of prejudice to the employer, if an extension of time was granted. That prejudice is further exacerbated, when combined with the usual prejudice of costs and time expended, in defending the claim. This factor weighs against the granting of an extension of time.

The merits of the application (s 394(3)(e))

[13] It is important for applicants to understand that a consideration of the merits of an application, at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis; See: Kyvelos v Champion Socks Pty Limited Print T2421, 10 November 2000. The applicant believes that his redundancy was not a genuine redundancy. He stated that he was informed by the respondent that the project he was working on had finished. However, he claimed that ‘there was work still available’ and the project had not finished. The Employer’s Response (Form F3) extensively canvassed the circumstances surrounding the applicant’s redundancy. The respondent submitted it consulted with the applicant and attempted to redeploy him within its workforce. The applicant did not oppose these submissions and, in his F2 Form, he had identified a similar redundancy process as to that described by the respondent. I am satisfied that the respondent complied with its obligations to both consult and attempt to find alternative work for the applicant, before making him redundant. Given this conclusion, a prima facie assessment of the applicant’s material would suggest that his prospects of success are negligible.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))

[14] The applicant did not specifically address this criterion. His redundancy appeared to be a conventional redundancy, due to an internal restructure of the respondent’s business. There were a number of other employees identified as being made redundant at the same time as the applicant. In the result, an assessment of this factor must weigh against a grant for an extension of time.

CONCLUSION

[15] Having considered all of the matters the Commission is required to take into account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. These factors are not outweighed by any prima facie merit in the applicant’s case. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 18 February 2015.

DEPUTY PRESIDENT

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