Daryl Boots v J T Johnson & Sons Pty Ltd

[2014] FWC 9028

[2014] FWC 9028

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daryl Boots
v
J T Johnson & Sons Pty Ltd
(U2014/15325)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 15 DECEMBER 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] Mr Boots 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 J T Johnson & Sons Pty Ltd (Johnson). At a telephone conference convened on 12 December 2014 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion

[2] Mr Boots’ application was lodged on 21 November 2014. In that application Mr Boots asserted that his employment was terminated with effect from 16 April 2014. Mr Boots asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept his application out of time:

“A lengthy investigation by Workcover and Employers Mutual Limited has caused significant delays, all information pertenant to dismissal has only just been finalised.
I have previously applied to the Industrial Relations Commission of SA but have been informed my previous employer is covered by federal laws not state laws. 1 (sic)

[3] On 27 November 2014 my Associate corresponded with both Mr Boots and Johnson and advised that the extension of time issue would be considered through a telephone conference on 12 December 2014. Substantial information about the extension of time issue was provided to the parties. Mr Boots was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 5 December 2014.

[4] Mr Boots provided a further statement in support of his request for an extension of time.

[5] The Employer’s Response to the application recorded its objection to an extension of time.

[6] Mr Boots participated in the telephone conference on 12 December 2014. Ms Smith, of counsel, represented Johnson’s in the conference pursuant to a grant of permission made under s.596(2). Mr Boots consented to that grant of permission. My conclusions about the extension of time issue were reached on the basis of the information before me. I note that a sound file record of this telephone conference was kept.

[7] 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.”

[8] On the information before me I am satisfied that the application was made some six months 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.”

[9] Mr Boots’ stated reasons for the delay went to his position that he was unaware of his capacity to pursue a remedy with respect to the termination of his employment and only commenced to investigate such an application after being advised, on 24 September 2014, that his workers compensation benefits were being discontinued as a consequence of that dismissal. While his WorkCover treatment was subsequently resumed, Mr Boots then sought legal advice in late October. As a consequence of financial considerations he decided not to seek to be legally represented and lodged an unfair dismissal application with the South Australian Industrial Relations Commission on, or around 14 November 2014. On 18 November 2014 he was advised that this was the wrong jurisdiction and he lodged this application a day later. I am not satisfied that Mr Boots’ reasons for the very long delay, taken individually or collectively, represent extraordinary circumstances such that the application could not have been lodged before 21 November 2014. Even recognising the erroneous State Commission application, Mr Boots has not satisfactorily explained the delay between the termination of his employment and 14 November 2014. Finally, to the extent that Mr Boots was unaware of the 21 day time limit, this cannot be an exceptional circumstance. I note that, after I advised the parties of my decision in this matter, Mr Boots confirmed that, in July 2014 a lawyer advised him to investigate the termination of his employment but that he did not do so.

[10] Mr Boots agrees that he was aware of the termination of his employment on 16 April 2014.

[11] Mr Boots agreed that he did not take any other action to dispute the termination of his employment.

[12] I have concluded that the substantial delay in this instance is most likely to cause prejudice to the employer.

[13] In terms of the merits of the application, the limited information before me does not enable any definitive conclusion such that I have regarded this as a neutral factor in considering the extension of time issue.

[14] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[15] Accordingly I have concluded that the material before me does not establish that Mr Boots’ circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR558982) giving effect to this decision will be issued.

Appearances (by telephone):

D Boots on his own behalf.

K Smith counsel for the Respondent.

Hearing (Conference) details:

2014.

Adelaide:

December 12.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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<Price code C, PR558981>