David Csongrady v Galipo Family Trust T/A Galipo Food Company
[2017] FWC 1571
•17 MARCH 2017
| [2017] FWC 1571 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Csongrady
v
Galipo Family Trust T/A Galipo Food Company
(U2016/15565)
COMMISSIONER PLATT | ADELAIDE, 17 MARCH 2017 |
Application for relief from unfair dismissal – extension of time – application dismissed.
[1] Mr David Csongrady has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Galipo Family Trust T/A Galipo Food Company (Galipo) which took effect on 21 November 2016. 1
[2] This application was lodged on 29 December 2016.
[3] Mr Csongrady’s application explained the failure to lodge the application within 21 days from the dismissal as follows:
“I filed a complaint on the Fair work site. Reference no 830744482. I tried ringing two weeks later to follow up, however was waiting for over 50 mins. I’ve finally got through and the lady advised me through her support to file for unfair dismissal.”
[4] On 27 February 2017, my Associate corresponded with Mr Csongrady and Galipo and advised that the extension of time issue would be considered at a telephone conference on 17 March 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Csongrady was directed to provide a statement concerning the extension of time and any documents to be relied upon by 10 March 2017. Galipo was invited to file any material in reply by 15 March 2017.
[5] Galipo filed a F3 Employer Response on 15 January 2017 and an F4 Objection to Unfair Dismissal Application on 27 February 2017 raising a jurisdictional objection on the basis that the application was lodged out of time.
[6] Mr Csongrady provided a written submission summarised as follows:
● He did not understand the correct procedures for lodging an unfair dismissal application.
● An application was lodged on the Fair Work website, customer reference number 830744482, a week or so after he had been dismissed and due to his lack of understanding of the procedure, he was waiting for someone to email or call him about the matter.
● He eventually contacted Fair Work and spoke to someone who explained the procedures and placed him on the correct path to deal with the matter.
● He has been subjected to workplace bullying and believes there is a lack of HR experience and seriousness taken towards such claims.
[7] Galipo did not provide any written submissions, however the following was set out in the F4 Objection to Unfair Dismissal Application:
- Mr Csongrady was dismissed on 21 November 2016.
- It is acknowledged that Mr Csongrady claims to have lodged a Fair Work application, attempted to follow up the application two weeks later but did not stay on the line to be connected to an operator and a further two weeks later was advised to lodged an unfair dismissal application, however, Mr Csongrady then waited another 40 days before lodging his unfair dismissal application on 29 December 2016.
- Mr Csongrady was fully aware that his employment had been terminated.
[8] A hearing was conducted by way of telephone conference on 17 March 2017. Mr Csongrady represented himself and Galipo was represented by Ms Janet Simes.
[9] A sound file record of the telephone conference was kept.
[10] Mr Csongrady reiterated his written submission but was unable to provide evidence to support his pursuit of the matter through the Fair Work website, other than the Form F2 Unfair Dismissal Application which was filed online on 29 December 2016. Subsequent to the hearing, Mr Csongrady forwarded an automated Fair Work Ombudsman email dated 28 November 2016 with the subject line ‘Your registration for Fair Work Ombudsman has been successful’ to my chambers, the body of the email advised that ‘My account’ registration had been successful and contained a username and customer reference number.
[11] Galipo relied on the submissions contained in the F3 and F4 forms filed and contended that there were no exceptional circumstances and the application should be dismissed.
Consideration
[12] 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.”
[13] This unfair dismissal application by Mr Csongrady was made 17 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
[14] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd2 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.”
[15] Mr Csongrady took no action to contest the dismissal. In my view, the creation of a customer reference number with the Fair Work Ombudsman is not action taken to contend the dismissal. Mr Csongrady explained his lateness by advising that he was adversely impacted by the dismissal and the circumstances that led to it and had a medical condition. No medical evidence to support the existence of a medical condition or its impact on his ability to lodge an application was provided.
[16] The applicant needs to provide a credible explanation for the entire period of the delay,3 but has not done so.
[17] There is no submission that the granting of an extension of time represents prejudice to Galipo.
[18] Consideration of fairness relative to other persons in similar positions is a neutral factor.
[19] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.
Conclusion
[20] For the reasons I have set out above, I am not satisfied that Mr Csongrady’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order4 reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
D.Csongrady on behalf of the Applicant.
J.Simes on behalf of the Respondent.
Hearing (Conference) details:
2017.
Adelaide:
March 17.
1 Letter of termination
2 [2011] FWAFB 975
3 Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403
4 PR591120
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