David Hopton v Mackay Sugar Limited

[2015] FWC 5450

[2015] FWC 5450

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

David Hopton
v
Mackay Sugar Limited
(U2015/8660)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 11 AUGUST 2015

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mr Hopton and the respondent ended on 29 May 2015. Mr Hopton lodged his application at the Fair Work Commission on 22 June 2015. Mr Hopton’s application was lodged 3 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Hopton. Mr Hopton’s representatives provided comprehensive statements from Mr Hopton and his solicitor Mr McSwan as well as an extensive written submission, on 26 June 2015.

[4] An extract of Mr Hopton's statement is set out below:

“2. On 16 June 2015 I executed a client agreement with McKays Solicitors to engage that practice [to] act on my behalf to prepare and lodge an unfair dismissal application against my ex-employer, Mackay Sugar Limited (the Respondent).

3. My application is seeking reinstatement to my role as Central Procurement Co-Ordinator.

4. My solicitor advised and I am aware that an unfair dismissal application must be filed within 21 days of the dismissal taking effect. I verily believe that my last day of employment with the Respondent was 29 May, 2015, and that I was required to lodge my Application for Unfair Dismissal on or before 19 June, 2015.

5. On 19 June, 2015 I had a telephone conversation with my solicitor, Scott McSwan about the Application that was being finalised. I then received the Application by email from Scott McSwan, and I executed the final page to authorise a credit card payment. I then scanned the Application and sent it back to Scott McSwan.

6. Later that day I received an email from Scott McSwan advising to the effect that the Application for Unfair Dismissal had been lodged. A copy of that email is attached and marked DH1 and states:

“Dear David,
I attach an email to Fair Work sending your application for filing. They will arrange to serve it upon Mackay Sugar.
In due course Fair Work will notify a date for a conciliation conference.

Regards”

7. Accordingly I believed that the Application for Unfair Dismissal had been lodged on 19 June, 2015, within the required period of 21 days from the employment termination date.

8. I am informed by Scott McSwan that he has received notification from Fair Work Commission that the email attempting to lodge the Application for Unfair Dismissal had not been received by the Fair Work Commission and [as] a result my application was considered by the Commission as being lodged out of time.

9. I am very disappointed by that outcome. I believe that I was unfairly dismissed by my employer in the circumstances stated in my Application for Unfair Dismissal and I do want the opportunity to prosecute my application to be reinstated to my employment with the Respondent.

10. I am aware that the Fair Work Commission must now make a determination as to whether an extension of time to file my application will be graned.

11. I respectfully request that the Fair Work Commission allow my application to proceed.

12. I do not believe the Respondent will be disadvantaged in any way by my application being accepted out of time.

13. I instructed my lawyer on 16 June, 2015 to notify the Respondent that I would be making an application for unfair dismissal.” 1

[5] I provided a copy of the applicant’s materials to the respondent. The respondent continued to oppose an extension of time but agreed to have the application dealt with on the papers.

[6] I issued an Order extending the time for lodgement of Mr Hopton’s application on 27 July 2015.

[7] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(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] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the Full Bench said:

“[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.” [Endnotes not reproduced]

[9] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.394(3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[10] I considered the various criteria to which my attention is directed by s.394(3) of the Act.

reason for the delay-s.394(3)(a)

[11] The reasons Mr Hopton provided for his delay in lodgement were:

● representational error; and

● filing difficulties with the Fair Work Commission's online lodgement system.

[12] I was satisfied that Mr Hopton's difficulties were out of the ordinary, unusual or uncommon. Mr Hopton did everything he could to lodge the application on time. Occasionally electronic systems fail as do the best efforts of representatives. Those failures should not be visited upon an applicant who has done all that he should to pursue his application.

whether the person first became aware of the dismissal after it had taken effect-s.394(3)(b)

[13] Mr Hopton became aware of the end of his relationship with the respondent on 29 May 2015.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[14] Mr Hopton disputed his dismissal by lodging this application.

prejudice to the employer-s.394(3)(d)

[15] I was satisfied that there would be no greater prejudice to the respondent caused by Mr Hopton's application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[16] Merit was a neutral issue in my consideration of this application.

fairness as between Mr Hopton and other persons in a similar position-s.394(3)(f)

[17] There was no issue of fairness in relation to any other person in a similar position.

[18] Having considered all of the matters to which my attention is directed by the Act I was satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis allowed the application. I was satisfied that Mr Hopton’s circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

 1   Statement in Support of Filing Out Of Time, Statement of David Hopton, 26 June 2015.

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