David Bannister v Steinborner Motors Pty Ltd T/A Steinborner Holden

[2014] FWC 8762

[2014] FWC 8762

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Bannister
v
Steinborner Motors Pty Ltd T/A Steinborner Holden
(U2014/14821)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 8 DECEMBER 2014

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

[1] Mr Bannister has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the alleged termination of his employment with Steinborner Motors Pty Ltd T/A Steinborner Holden (Steinborner). At a telephone conference convened on 4 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 Bannister’s application was lodged on 4 November 2014. In that application Mr Bannister advised that the termination of his employment took effect on 10 October 2014 and asserted that he had made of the application within 21 days of his dismissal taking effect.

[3] On 10 November 2014 my Associate corresponded with both Mr Bannister and Steinborner and advised that the extension of time issue would be considered through a telephone conference on 4 December 2014. Substantial information about the extension of time issue was provided to the parties. Mr Bannister was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 27 November 2014.

[4] Mr Bannister subsequently provided additional information about why the application was lodged at that time. He stated:

“I am writing to request an extension of time because I did not know that I had 21 days to make an unfair dismissal application until I got my appointment with legal aid which took about a fortnight after I applied and was told by the lawer that I should contact the fair works commission and that I had 21 days to do so

I contacted the number I was given a couple of times and the recording said there was upto 40 min waiting time due to alot of calls

I finally got to talk to someone who said the would post me out the forms I needed.

At the time I thought I still had a couple of days left and by the time I received the forms filled them out and sent them back it would have been to late. That is why I came down to the commission to fill out the forms.

I did not know at the time that I had run out of time to lodge my application.” 1 (sic)

[5] The Employer’s Response (Form F3) to the application recorded its objection to an extension of time and its objection to the application. This response also confirmed the appropriate name of the employer. I have amended the application accordingly.

[6] Mr Bannister participated in the telephone conference on 4 December 2014. Mr Pitt and Mr Collier represented Steinborner 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.

[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 four 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.”

[9] Mr Bannister’s stated reasons for the delay can be summarised on the basis that he was unaware of the 21 day time limit until he met with a “legal aid” advisor some two weeks after he was dismissed. He then advised that he had difficulty contacting the Fair Work Commission (FWC). By the time he received the relevant forms sent to him by post he was concerned at the delay and hence attended the FWC to lodge the application. I have concluded that the primary reason for the delay was Mr Bannister’s lack of knowledge of the 21 day time limit and cannot regard that as a factor indicative of extraordinary circumstances or an appropriate basis upon which to found an extension of time. To the extent that Mr Bannister relies on delays in accessing the FWC telephone advice service, I similarly cannot regard this as an acceptable reason for the delay or as indicative of an extraordinary circumstance. Finally, to the extent that Mr Bannister explained the delay in that his job provider provided erroneous advice about how 21 days should be counted, I cannot reconcile this with the legal advice he said he was given and am not satisfied that Mr Bannister took the necessary steps to properly inform himself of the time limit.

[10] There is no dispute that Mr Bannister was advised of the termination of his employment on the day upon which it took effect, being 10 October 2014.

[11] Apart from actions taken by Mr Bannister that resulted in the lodgement of this application I am not satisfied that he otherwise contested the termination of his employment. In this respect I am not satisfied that his subsequent contact with his job provider represented an alternative challenge to his dismissal.

[12] I do not consider that the extension of time would prejudice Steinborner but this, of itself, cannot form the basis for an extension of time.

[13] In terms of the merits of the application, 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.

[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 Bannister’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis an Order (PR558620) giving effect to this decision will be issued.

Appearances (By telephone):

D Bannister on his own behalf.

J Pitt and F Collier representing the respondent.

Hearing (Conference) details:

2014.

Adelaide:

December 4.

 1   Applicant Submission received 26 November 2014

 2   [2011] FWAFB 975

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<Price code C, PR558619>