David Gabarretta v GA & MH Williams T/A Advance Removals
[2015] FWC 6542
•25 SEPTEMBER 2015
| [2015] FWC 6542 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Gabarretta
v
GA & MH Williams T/A Advance Removals
(U2015/11586)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 25 SEPTEMBER 2015 |
Application for relief from unfair dismissal - extension of time not granted.
[1] Mr Gabarretta 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 GA & MH Williams T/A Advance Removals (Advance Removals). At a telephone conference convened on 24 September 2015 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 Gabarretta’s application was lodged on 3 September 2015. In that application Mr Gabarretta advised that he had been dismissed with effect from 8 August 2015. In his application, Mr Gabarretta provided the following explanation for the late lodgement of his application:
“I had application filled out by required dates but emailed it to incorrect email address.
Decided on the 2nd Sept to look up to see if I had a reply as yet. This is when I discovered that it hadn’t gone through to the correct email address.” 1
[3] On 4 September 2015 my Associate corresponded with both Mr Gabarretta and Advance Removals and advised that the extension of time issue would be considered through a telephone conference on 24 September 2015. Substantial information about the extension of time issue was provided to the parties. Mr Gabarretta was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 17 September 2015.
[4] Additional information was received from Mr Gabarretta on 11 September 2015 in which he advised that:
“In response to the application of my unfair dismissal.
The form was completed and all in due course from my termination.
Upon completion on the 21st AUGUST 2015 I apparently emailed it to an incorrect email address. (possibly due to some depression and anxiety after completing)
(I believe the form itself does not state an email address to forward to and the only one I had was fwc.gov.au that's where it went.)
I followed up approx. 10 days later as the fee to be paid had not been taken out of my account and I followed up with a email 3rd Sept to Chrishatha Ratnasingh asking if it had been lodged.
I was told it was not. I was asked which state I had lived in and was forwarded this email address I have now.
In section 1.4 page 3 of the application I also gave this brief reason:
If you answered no to question 1.4—Explain the reason for the delay, including any steps you have taken to dispute the dismissal or any other reason you think the Commission should take into account in considering whether to accept your application out of time.
I had application filled out by required dates but emailed it to incorrect email address.
Decided on the 2nd Sept to look up to see if I had a reply as yet. This is when I discovered that it hadn't gone through to the correct email address.”
[5] Additionally, on 14 September 2015 Mr Gabarretta provided further information in the following terms:
“Hope you have received my email in regards to my mistake in late lodgement of claim.
I would also like to bring to your attention that I have had to go to the Fair Work Ombudsman also to get from my previous employer my termination pay.
my entitlements here are =
5 weeks severance pay
12 weeks holiday pay
28 weeks leave loading (as no leave loading paid on any holidays taken)
Superannuation (several thousand $$$) to be determined through my fund.
On the claim full payment was meant to be by 10th Sept.
No payment made on termination as required.
I am now forced to go through the courts.
Would you like a copy of this claim?”
[6] The Employer’s Response to the application indicated that Advance Removals opposed the extension of time. Advance Removals also objected to the application on the basis that it asserted that it was a small business and that the termination of Mr Gabarretta’s employment was consistent with the Small Business Fair Dismissal Code.
[7] Mr Gabarretta participated in the telephone conference. Ms Hinton, from Business SA, of which organisation Advance Removals is a member, participated in the conference and represented Advance Removals with Mr Williams. My conclusions about the extension of time issue were substantially reached on the basis of all of the information provided to me by Mr Gabarretta. I note that a sound file record of this telephone conference was kept.
[8] 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.”
[9] On the information before me I am satisfied that the application was made some 5 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.”
[10] I have noted the employer position that sending the application to a web address would have resulted in some form of error message back to Mr Gabarretta. Irrespective of this, there is simply no documentary evidence which confirms that the application was sent on 21 August 2015 as Mr Gabarretta asserts. Even more significantly, the obligation is on Mr Gabarretta, as an applicant, to ensure that his application is lodged within time. It may be that Mr Gabarretta did make an error of this nature and was distressed over this time but evidence which establishes that his stress meant that he could not lodge the application properly within time is not before me. I am not satisfied that the circumstances here can be described as exceptional. To the extent that Mr Gabarretta’s email advice of 14 September 2015 refers to an underpayment claim, I do not consider that this explains why it was that this unfair dismissal application was lodged outside of the 21 day time limit.
[11] It is clear from Mr Gabarretta’s application that he was aware of the termination of his employment on the day it took effect. I am not satisfied that Mr Gabarretta took other actions to challenge the termination of his employment which establish exceptional circumstances.
[12] I am not satisfied that an extension of time of this magnitude would prejudice the Respondent but this factor cannot form the basis for an extension of time.
[13] In terms of the merits of the application, the information before me does not enable a definite conclusion. Consequently, I have regarded the merits of the application as a neutral factor relative to the extension of time.
[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 Gabarretta’s 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 (PR572168) giving effect to this decision will be issued.
Appearances (by telephone):
D Gabarretta on his own behalf.
V Hinton for the respondent.
Hearing (Conference) details:
2015.
Adelaide:
September 24.
1 Form F2, para 1.4
2 [2011] FWAFB 975
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