David Hawkins v Tilt Trays Australia Pty Ltd

[2015] FWC 3669

[2015] FWC 3669

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Hawkins
v
Tilt Trays Australia Pty Ltd
(U2015/5218)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 1 JUNE 2015

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

[1] Mr Hawkins 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 Tilt Trays Australia Pty Ltd (Tilt Trays). At a telephone conference convened on 28 May 2015 I advised that I had concluded, on the material before me, 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 Hawkins’ application was lodged on 3 May 2015. In that application Mr Hawkins confirmed that he understood his application was made outside of the 21 day time limit. He advised that on 8 April 2015 he received a payslip by email which specified the payment of two week’s pay in lieu of notice. He then provided the following advice:

“Did not receive letter to say dismissed until the 10th April - had contacted employer when received payslip to find out what it was about and they advised a letter was in the mail. I advised them that I was expecting to be cleared to return to work by doctor within 2 weeks they said if that was the case then my job would still be there though I would have to return the two weeks wages. They have continued to advise along these lines but are now delaying my start until a position is available.” 1

[3] The Employer’s Response to the application objected to any extension of time and provided the following advice:

“1. The Applicant was sent a letter of termination dated 7 April 2015.
2. On 8 April 2015, the Applicant was verbally informed of his termination during a telephone discussion with the General Manager of Access Hire South Australia Pty Ltd, Terry Thompson.
3. On or around 13 April 2015, the Applicant had a discussion with the Transport Manager of Tilt Trays Australia Pty Ltd in South Australia, Lee Partington who informed the Applicant that there were no vacancies at the time at Tilt Tray Australia Pty Ltd for a Truck Driver.
4. As the Applicant was made aware of his termination on 8 April 2015, the Applicant had until 29 April 2015 to lodge his Application for Unfair Dismissal Remedy (Application). However, the Applicant only lodged his Application on 3 May 2015 which was four (4) calendar days after the 21 day allowable time limit to bring an unfair dismissal claim as per section 394(2)(a) of the Fair Work Act 2009 (Cth).
5. There are no exceptional circumstances which exist for the Fair Work Commission to exercise its discretion to extend the time for the filing of the Application.
6. It is fair for the Applicant to be held to the statutory time limit in the same way as all other applicants for an unfair dismissal remedy.
7. The Respondent objects to the continuation of the substantive proceedings until this jurisdictional objection is addressed.” 2

[4] On 13 May 2015 my Associate corresponded with both Mr Hawkins and Tilt Trays and advised that the extension of time issue would be considered through a telephone conference on 28 May 2015. Substantial information about the extension of time issue was provided to the parties. Mr Hawkins was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 21 May 2015.

[5] Further information was received from Mr Hawkins on 19 May 2015 when he provided advice, by email, in the following terms:

“I David Roger Hawkins believe that the extension of time should be allowed as I first received an emailed payslip noting two weeks wages in lieu of notice on the afternoon of the 8th of April I immediately rang Terry Thompson to query, who advised that a letter was in the mail explaining. I told him that I had my next specialist appointment on the following Monday the 13th and was expecting to be cleared to return to work shortly after, he then stated that if that was the case then they should be fine to hold my position and to contact them once I had a date for sure.
I received my termination letter in the afternoon mail of the Friday the 10th of April dated the 8th of April.
I went to my specialist appointment on Monday the 13th and was cleared to return to work on the 27th April I went into the office following my appointment on the afternoon of the 13th and advised Terry Thompson of the date I would be fit to return on and he said he would contact Perth and get back to me to say what would need to happen. I followed up the next day via phone and was told I would need to have a medical and give back the wages received. I said this was fine and they were to ring me to let me know when the medical was to happen. I continued to chase up over the next few days and then weeks only receiving excuses regarding truck availability but nothing about my position not actually going to be reinstated. Even as recent as 8/5 Centrelink contacted them to get clarification as I was by this time concerned due to still not getting straight answers and Centrelink were told that yes they were waiting on a truck to be available but as they couldn't give a timeframe a separation certificate was requested. It is this uncertainty that has caused the delay in lodging the unfair dismissal claim.

I have not provided any documented evidence - I do have the termination letter received via normal mail dated the 8th April which was not received until the afternoon of the 10th April and email of payslip received on the afternoon of the 8th which prompted the phone call to seek clarification, everything else was via face to face and phone conversations. Both of the above would be on file by Tilt Trays anyway.”

[6] Mr Hawkins participated in the telephone conference. Ms De Silva and Mr Thompson from Tilt Trays also participated in this conference.

[7] 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] 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 have accepted Mr Hawkins’ advice that he was advised of the termination of his employment on 8 April 2015, one day after that termination of employment took effect. Accordingly, I am satisfied that the application was made 4 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 3 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 of the ordinary course, unusual, special or uncommon.”

[10] Mr Hawkins’ reasons for the delay fundamentally go to the extent to which he was initially given to understand, on 8 April 2015 that his position could be restored pending a medical clearance on 13 April 2015. I have accepted that Mr Hawkins was cleared to return to work on 27 April 2015 and that he advised Tilt Trays accordingly. In reaching a conclusion, I acknowledge that there is some uncertainty about whether he was requested to provide the medical certificate clearing him for work to Tilt Trays. However, I am satisfied that Mr Hawkins was given to understand that, subject to a further medical clearance and his return of the payment in lieu of notice, his position could be restored. I am satisfied that Mr Hawkins continued to pursue this issue until he decided that lodgement of this application was necessary. Mr Hawkins’ substantial uncertainty about reinstatement or the status of the termination of his employment in these circumstances explains why this application was not lodged earlier. Accordingly, I am satisfied that Mr Hawkins has established that the reasons for the delay represent circumstances which should be regarded as exceptional for the purposes of an extension of time.

[11] I have accepted Mr Hawkins’ position that he did not receive the letter advising of the termination of his employment until 10 April 2015 but that he was advised of the termination of his employment the day after it took effect on 7 April 2015. I have taken this one-day delay into account.

[12] Mr Hawkins clearly took action to dispute the termination of his employment by directly approaching his employer. He did so in a timely fashion.

[13] I am not satisfied that an extension of time of this magnitude would prejudice Tilt Trays but this, of itself, does not provide a basis for an extension of time.

[14] The limited material before me relative to the merits of the application does not enable a definitive conclusion and I have regarded the merits of the application as a neutral factor relative to the extension of time issue. The parties should not confuse this decision with an endorsement of the merits of the application.

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

[16] Accordingly I have concluded that the material before me establishes that Mr Hawkins’ circumstances can be regarded as exceptional so as to warrant an extension of time. An Order (PR567885) giving effect to this decision will be issued.

Appearances (by telephone):

D Hawkins on his own behalf.

S De Silva and T Thompson for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

May 28.

 1   Form F2, para 1.4

 2   Form F3, para 2.2, points 1-7

 3   [2011] FWAFB 975

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