Darrell Murray v BGC Contracting Pty Ltd

[2015] FWC 2434

[2015] FWC 2434

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darrell Murray
v
BGC Contracting Pty Ltd
(U2015/4058)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 13 APRIL 2015

Application for relief from unfair dismissal - extension of time granted.

[1] Mr Murray has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with BCG Contracting Pty ltd (BCG). At a telephone conference convened on 10 April 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section but that I was satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion.

[2] Mr Murray's application was lodged on 18 March 2015. That application advised that Mr Murray's employment was terminated on 18 February 2015. In the application, Mr Murray asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept his application out of time:

“1. The reason for the delay is representative error.

2. The Applicant contacted his representative, Mr Warner of the CFMEU, on the 23rd or 24th of February 2015 to report his dismissal. He explained that he wanted the CFMEU to help him.

3. Mr Warner made two attempts to contact Mr Pengelley of BGC Contracting via telephone to challenge the Applicant’s dismissal. His messages were not returned. Around the 3rd or 4th of March 2015, Mr Warner also visited the Applicant’s former worksite, a mine at Peculiar Knob in South Australia, attempting to make contact but was informed that Mr Pengelley was away from the site.

4. Around the 4rd or 4th of March 2015, Mr Warner obtained a copy of the Applicant’s letter of termination.

5. On the 4th March 2015, Mr Warner travelled from his base in Whyalla to Adelaide, in order to, among other things, report the Applicant’s case to the CFMEU Industrial Officer.

6. On his journey to Adelaide on 4th March 2015, Mr Warner’s car collided with a kangaroo, causing serious damage to his car. Mr Warner was understandably shaken by this event, and whilst he managed to reach Adelaide, he stayed only long enough to dispose of his damaged car, before returning to Whyalla on 5th March 2015. Mr Warner forgot to pass on the relevant paperwork to the Industrial Officer on this occasion.

7. The day after returning to Whyalla, Mr Warner travelled to Peculiar Knob mine site at the request of Union members, and stayed there until Friday 13th March 2015.

8. On Monday 16th March 2015, Mr Warner returned to Adelaide, with the Applicant’s paperwork, believing that the Applicant had 28 days to lodge an unfair dismissal claim.

9. On 16th March 2015, Mr Warner was advised that the Applicant’s claim was out of time for lodgment.

10. After several attempts by the CFMEU to contact the Applicant, on 18th March 2015, the Applicant confirmed that he wished to try to pursue his claim despite the 21 days for lodgment having expired, on the basis that the delay was through no fault of his own, that the delay involved exceptional circumstances, and that he believes he has an arguable case that the dismissal was harsh.” 1

[3] On 19 March 2015 my Associate corresponded with both Mr Murray and BCG and advised that the extension of time issue would be considered through a telephone conference on 10 April 2015. Substantial information about the extension of time issue was provided to the parties. Mr Murray was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 3 April 2015.

[4] Additional information was received from the Construction, Forestry, Mining and Energy Union (CFMEU) on behalf of Mr Murray. This advised that the delay was due to representative error on the part of the CFMEU in terms consistent with the advice provided in the application. The CFMEU asserted that Mr Murray contacted Mr Warner after his initial contact on two further occasions with respect to his claim. A statement provided by Mr Warner was consistent with the CFMEU submissions and confirmed that he omitted to refer the matter to the CFMEU personnel in Adelaide and had understood that the time limit was 28 days rather than 21 days. The CFMEU asserted that the details of Mr Murray's claim were available to the relevant personnel in Adelaide on 16 March and that contact with Mr Murray on 18 March 2015 when Mr Murray confirmed that he sought to pursue the matter notwithstanding that the 21 day period had then elapsed.

[5] I note that the CFMEU material then proceeded to address the relevant statutory criteria.

[6] The Employer’s Response to the application confirmed that BCG was opposed to any extension of time.

[7] Mr Murray participated in the telephone conference and was represented by Ms Dooley of the CFMEU. Mr Warner was also present at this conference. Ms Thorp from BCF participated in this conference. My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[8] I note that Mr Murray provided advice which confirmed his instructions to Mr Warner to pursue the application and his confirmation to Ms Dooley on 18 March 2015, that he still wished to pursue the matter even though the 21 day time period had elapsed.

[9] 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.”

[10] On the information before me I am satisfied that the application was made some 7 days outside of the 21 day time limit and hence, 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.”

[11] I am satisfied that the reasons for the delay in the lodgement of the application reflect representative error which may constitute an acceptable reason for the delay. In this case I am satisfied that Mr Murray made clear to Mr Warner that he wished to pursue a remedy relative to the termination of his employment and that he contacted Mr Warner on two separate occasions to provide further information and enquire as to progress in that matter. In this regard the reason for the delay reflects an exceptional circumstance. It is clear from Mr Murray's application that he was aware of the termination of his employment on the day this termination took effect. I am satisfied that Mr Murray pursued a challenge to the termination of his employment through his contact with Mr Warner. There is no dispute that an extension of time of this magnitude would prejudice the Respondent, but this, of itself, does not provide a basis for an extension of time.

[12] In terms of the merits of the application, I have noted the information provided by the CFMEU on behalf of Mr Murray and the information provided by BCG. Notwithstanding this, information which allows a definitive conclusion in this respect is not before me and I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

[13] Considerations of fairness relative to other persons in similar positions support an extension of time.

[14] Accordingly I have concluded that the material before me establishes that Mr Murray's circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be referred for conciliation on this basis and an Order (PR562893) giving effect to this decision will be issued.

Appearances (by telephone):

L Dooley representing the Applicant.

S Thorp appearing for the Respondent.

Hearing (Conference) details:

2015.

Adelaide:

April 10.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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<Price code C, PR562892>