David Jackson v Leveda Inc T/A Lighthouse Disability

[2015] FWC 4972

[2015] FWC 4972

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Jackson
v
Leveda Inc T/A Lighthouse Disability
(U2015/8549)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 22 JULY 2015

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

[1] Mr Jackson 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 Levada Inc T/A Lighthouse Disability (Lighthouse Disability). At a telephone conference convened on 21 July 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 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 Jackson’s application was lodged on 17 June 2015. In that application Mr Jackson advised that the termination of his employment took effect on 12 April 2015. In his application, Mr Jackson provided the following explanation for his late lodgement of the application:

“I left my job on the belief the United Voice Union agreed that my final warning was fair. I asked them why they agreed they said they did not so now I am unemployed. I contacted them after I left believing Leveda Inc.” 1

[3] The Employer’s Response to the application asserted that Mr Jackson resigned his employment effective 12 April 2015 and that he had not been dismissed. Secondly, Lighthouse Disability asserted that the application was lodged out of time and opposed any extension of time.

[4] On 19 June 2015 my Associate corresponded with both Mr Jackson and Lighthouse Disability and advised that the extension of time issue would be considered through a telephone conference on 21 July 2015. Substantial information about the extension of time issue was provided to the parties. Mr Jackson was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 14 July 2015.

[5] Further information was received from Mr Jackson on 13 July 2015 when he provided advice, by email, in the following terms:

“Dear Senior Deputy resident O'Callagan i feel i was not really advised well by the union suggesting i should claim against work cover.the kind lady at centrelink gave me your address and i sought your help immediately.i had been under a lot of stress since this matter started then finding out my company of 15 years had lied to me to return. i returned and found the situation to much to cope with. then when i approached the union and they told me they never agreed i found my self lost and my marriage was suffering badly .i felt there was no hope and had given up until Centrelink lady advised me .not a nice way to have my life turned upside down kind regards David Jackson”

[6] Mr Jackson also provided copies of correspondence relative to a WorkCover claim and copies of correspondence between him and his union, United Voice. In that email correspondence, dated 25 February 2015, Mr Jackson stated:

“hi Jarrod Dee i asked to go to low support as it is easier physically she said no because need evidence from Doctor can not do heavy . when i went in today we had a quick meeting and she said i require a Physical to return i am booked in this Friday 152 Henley beach road 10am no mention was made if i would be paid.i was due to return 7/2/15 but i was going away and was not happy to do physical in my time as i had been questioned before about attending training whilst on leave so i signed to return 11/2/15 i now have decided not to go away and rang now have Fridays Appointment .Sure my best option when i return will be to give 2 weeks notice as i will get sacked and end up in court Cheers have had a gut full Regards David ,Good Luck in the Future Jarrod”

[7] Mr Jackson participated in the telephone conference. Ms George and Mr Denholm, from Lighthouse Disability also participated in this conference.

[8] 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.

[9] 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.”

[10] On the information before me I have concluded that the termination of Mr Jackson’s employment took effect on 12 April 2015. Accordingly, I am satisfied that the application was made 45 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.”

[11] Mr Jackson’s reasons for the delay go to his advice that he was unaware of his capacity to pursue this application until such time as he saw a Centrelink officer shortly before he lodged the application. Mr Jackson’s lack of awareness of the capacity to make an application of this nature cannot be taken as indicative of an acceptable reason for the delay or an exceptional circumstance. Secondly, Mr Jackson asserts that he was poorly advised by his union and/or Lighthouse Disability. The information before me does not establish that either Mr Jackson’s union or Lighthouse Disability provided advice to Mr Jackson which mislead him in terms of his capacity to make this application. Finally, Mr Jackson asserts that he was, over this period, stressed and unwell. That may well be the case but medical evidence that establishes that Mr Jackson was unable to lodge this application within the statutory time limit has not been provided to me. I am not satisfied that Mr Jackson has established that the reasons for the delay represent circumstances which should be regarded as acceptable or exceptional for the purposes of an extension of time.

[12] The termination of Mr Jackson’s employment took effect on 12 April 2015 in accordance with his resignation advice.

[13] I have accepted Mr Jackson’s advice that, at some time after he was given a second and final warning in October 2014, he complained about that warning. However I am not satisfied that Mr Jackson took action, apart from the late lodgement of this application, to pursue other actions in a timely manner so as to challenge the termination of employment.

[14] I consider that an extension of time of this magnitude would most likely prejudice Lighthouse Disability but have not based my conclusion in this matter on that consideration.

[15] The material before me relative to the merits of the application gives rise to significant doubt that the merits of Mr Jackson are sustainable. That information indicates that Mr Jackson resigned his employment. It indicates that, as early as 25 February 2015, he foreshadowed to his union that he intended to give two week’s notice. Mr Jackson’s own advice to me is that he considered that a second and final warning given to him in October 2014 meant that the termination of his employment was inevitable. Mr Jackson was absent from work from October 2014 until 7 March 2015. In accordance with the advice that he foreshadowed to his union on 25 February 2015, he resigned shortly after returning to work. Whilst, information which would enable a definitive conclusion is not before me I consider that the information before me strongly indicates that Mr Jackson decided to resign his employment of his own volition and was not dismissed at the initiative of the employer. Accordingly, I do not regard the merits of the application as a factor supporting the extension of time.

[16] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[17] Accordingly, I have concluded that the material before me does not establish that Mr Jackson’s circumstances can be regarded as exceptional so as to warrant an extension of time. An Order (PR569666) giving effect to this decision will be issued.

Appearances (by telephone):

D Jackson on his own behalf.

A George and S Denholm for the Respondent.

Hearing (Conference) details:

2015.

Adelaide:

July 21.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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