David Karaba v Activ Foundation Inc

[2015] FWC 1754

[2015] FWC 1754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Karaba
v
Activ Foundation Inc.
(U2015/2601)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr David Karaba alleged that the termination of his employment by Activ Foundation Inc. on 18 December 2014 was unfair.

[2] His unfair dismissal application lodged on 28 January 2015 was not made within 21 days of the date of the dismissal.

[3] The parties have filed material and have agreed to have the matter determined on the papers.

[4] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd  1 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]

(a) the reason for the delay;

[6] Mr Karaba explained that he did not lodge his application in time because of the Christmas period. As well, he was unsure about how to apply and he did not have access to a computer that would allow him to print the forms until he went to a library. In addition, he said he had to focus on finding work and because he had bills to pay, he could not afford the filing fee.

[7] Mr Karaba lives in country Western Australia. The largest region town is Albany which is a short drive from his home. While I accept that the Christmas period and the lack of access to a computer would have made it more difficult for Mr Karaba to make his application, there is nothing to suggest his local library closed in the week before Christmas or was closed after New Year. Mr Karaba had until 8 January 2015 to file his unfair dismissal application and he has not explained, other than his lack of knowledge about how to apply, why he was not able to access the Commission’s website until late January 2015. It is not unusual for dismissed employees to be ignorant of their unfair dismissal rights or to need to focus on finding work. It is also not unusual for dismissed employees to not be able to afford the filing fee. However, there is information on the Commission’s website that explains that an application can be made to waive the filing fee.

[8] I do not consider Mr Karaba’s explanation for the delay weighs in favour of extending time, as he has not adequately explained the whole of the delay.

(b) whether the person first became aware of the dismissal after it had taken effect;

[9] Mr Karaba was aware of the dismissal when it took effect. He therefore had the full 21 days to lodge his application. This weighs against the granting of an extension of time.

(c) any action taken by the person to dispute the dismissal;

[10] Mr Karaba denied the allegations made against him at the time. Activ submitted that Mr Karaba did not question the decision to dismiss him when he was advised by telephone of the dismissal. Mr Karaba accepted this, but said he did not take action to dispute the dismissal because he was stunned by the decision to dismiss him. I consider this a neutral factor.

(d) prejudice to the employer (including prejudice caused by the delay);

[11] There is no suggestion of any prejudice to Activ if an extension of time were granted. This weighs in favour of granting an extension of time.

(e) the merits of the application;

[12] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. However, as I am unable to conclude that Mr Karaba’s claim has no prospects of success, this weighs in favour of granting an extension of time.

(f) fairness as between the person and other persons in a similar position.

[13] This criterion is neutral.

Conclusion

[14] I find that there are no exceptional circumstances which warrant the granting of an extension of time. Mr Karaba’s explanation for the delay explains some of the delay but does not explain why it took him an extra 20 days to lodge his application. The Christmas/New Year holiday period does not provide a reasonable explanation for the whole of the delay. Further, while his access to a computer created difficulties, Mr Karaba is not located so remotely that he could not have accessed a computer within the time frame provided for in the Fair Work Act 2009. Mr Karaba’s lack of a reasonable explanation for the delay is not outweighed by any of the other criteria.

[15] Mr Karaba’s application for an extension of time to lodge his unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

 1   [2011] FWAFB 975.

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