David Parker v Officeworks Ltd
[2014] FWC 4146
•24 JUNE 2014
| [2014] FWC 4146 [Note: An appeal pursuant to s.604 (C2014/5131) was lodged against this decision - refer to Full Bench decision dated 29 August 2014 [[2014] FWCFB5779] for result of appeal.] |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Parker
v
Officeworks Ltd
(U2014/6770)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 24 JUNE 2014 |
Application for relief from unfair dismissal-extension of time
[1] I heard this application by transcribed telephone link on 30 May 2014. On 6 June 2014 I issued an order extending time for lodgement. These are my reasons for doing so.
[2] Mr Parker was represented by his mother, Mrs Teresa Churchyard. Officeworks Ltd (Officeworks) was represented by Mr Courtney Dixon.
[3] Mr Parker was dismissed from the employment of Officeworks on 18 March 2014. The application pursuant to s.394 of the Fair Work Act 2009 (the Act) was lodged on 23 April 2014, some 22 days late.
[4] Mrs Churchyard provided a written submission dated 15 May 2014.
[5] Mrs Churchyard submitted that she lodged the application for unfair dismissal pursuant to the Act by facsimile transmission on 7 April 2014. Mrs Churchyard did not receive a response from the Fair Work Commission (the Commission) following lodgement of that application.
[6] On 23 April 2014, 16 days later, Mrs Churchyard called the Commission for assistance. She was informed that there was no record of the application having been received. She was advised to resend the application with an explanation. She did that on the same day.
[7] Mrs Churchyard’s explanation for the initial failure of the lodgement of the application on 7 April 2014 is set out below:
“Upon investigation of why the fax did not transit on 7th April I discovered that,
1. The fax number I dialed did not contain the area code (02)
2. I had copied the number directly from the website which did not contain the area code.
3. As the submission had appeared to have been sent, I assumed that it had.
4. The fax machine that was used in my husband’s business machine. I am including the fax reports regarding this matter.
5. It is noted that on the 7.04.2014 there is no phone number as to where the fax was directed.
6. All entries on the report relate to my husbands business with the exception of an entry on the 18th March. This is where I have used the fax to schedule an appt at Concorde Hospital. The same error was made regarding the area code. I was unaware of this also until I contacted the Hospital to enquire as to why I had not received any correspondence. This can be verified on the following fax report of the 24th April.”
[8] Mrs Churchyard submitted that her failure to competently lodge the application by facsimile on 7 April 2014 should not be visited upon her son David.
[9] Officeworks provided a statement with a number of attachments from Ms Heather Campbell, its New South Wales Human Relations Manager. Mr Dixon also provided a detailed submission.
[10] Officeworks submitted that the principles regarding representative error do not apply to Mrs Churchyard. Mrs Churchyard is not a solicitor or a union representative, and is therefore excluded from any consideration as a representative. A representative of the kind identified by Officeworks would be a person having “... the skills, expertise and most importantly the right, to act as a representative in the court or tribunal.” 1
[11] Applicants are regularly represented before the Commission by a variety of persons who are not legally qualified or even experienced in industrial law. Solicitors do not have a right to appear in the Commission. Permission to appear must be specifically granted.
[12] Support persons who assist applicants to lodge their applications and appear before the Commission may be family members, friends and even sometimes social workers or Church support persons.
[13] In this case Mr Parker relied upon his mother. Mrs Churchyard assumed she had lodged correctly. There was a 16 day delay from the first unsuccessful attempt to lodge to the date of Mrs Churchyard’s telephone call to the Commission to make enquiries. I do not consider that delay to have been excessive. Mrs Churchyard’s reliance on the accuracy of her first lodgement proved to be inaccurate but, when she discovered her error, she acted immediately.
[14] The relevant legislative framework for the exercise of the 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.”
[15] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd [2011] FWA FB 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]
[16] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not necessary that the applicant for an 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.
[17] I will deal with the matters to which my attention is directed by the Act.
[18] Mr Parker’s explanation for delay is an error in lodgement occasioned by his mother’s faulty entry of a facsimile number. I have no reason to doubt the veracity of the explanation provided by Mrs Churchyard. I accept the explanation.
[19] There was no delay in Mr Parker becoming aware of his dismissal.
[20] I considered the action taken by Mr Parker to dispute his dismissal from employment. I accept that Mr Parker attempted to lodge an application within time.
[21] I do not accept that there is any particular prejudice to the employer caused by this delay in lodgement other than the ordinary requirement to defend the application.
[22] The material put before me by Ms Campbell raised serious issues regarding the merits of the application that I was not in a position to resolve in this application. I could not be satisfied that the application was without merit. Merit was therefore a neutral consideration.
[23] No issue of fairness arose between Mr Parker and any other person in a similar position.
[24] Having considered those matters to which my attention was directed by the Act, I was satisfied that, in relation to this application, there were exceptional circumstances sufficient to justify an exception to the time limit.
SENIOR DEPUTY PRESIDENT
Appearances:
T Churchyard, for the applicant
C Dixon, for the respondent
Hearing details:
2014
Sydney
30 May
1 See para 30 of the Respondent’s submissions filed 22 May 2014.
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