Dean Pritchard v Laserfax Pty Ltd ATF B & T Unit Trust T/A Scope Business Imaging

[2017] FWC 653

[2017] FWC 653

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dean Pritchard
v
Laserfax Pty Ltd ATF B & T Unit Trust T/A Scope Business Imaging
(U2016/14069)

COMMISSIONER PLATT ADELAIDE, 31 JANUARY 2017

Application for relief from unfair dismissal – extension of time application – filing of application in the Western Australian Industrial Relations Commission – extension granted.

[1] Mr Dean Pritchard lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with the Laserfax Pty Ltd ATF B&T Unit Trust T/A Scope Business Imaging (Laserfax).

[2] Mr Pritchard was dismissed on 10 October 2016 and lodged this application on 24 November 2016.

[3] On 1 December 2016, Mr Dennis Bartulovic, Managing Director, filed an F3 Employer’s Response and raised the jurisdictional objection on the basis that the application was lodged out of time and that the applicant was not dismissed but abandoned his employment. This decision only relates to the extension of time issue.

[4] On 15 December 2016, my Associate corresponded with Mr Pritchard and Laserfax and advised that the extension of time issue would be considered at a telephone conference on 31 January 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Pritchard was directed to provide a statement concerning the extension of time and any documents to be relied upon by 20 January 2017. Laserfax was invited to file any material in reply by 25 January 2017.

[5] Mr Pritchard provided a written submission which together with the information in his Form F2 Unfair Dismissal application is summarised as follows:

• His employment was terminated on 10 October 2016.


• Shortly after his termination, he corresponded with Mr Ludick (Financial Controller) over a number of issues and was provided with a copy of a document titled ‘Product Consultant Remuneration – 2016’. This document referred to his employer as ‘Scope Business Imaging’.


• Mr Pritchard was not aware that he was employed by a constitutional corporation and filed a Form F2 – Notice of Claim of Harsh, Oppressive or Unfair Dismissal with the Western Australian Industrial Relations Commission on 30 October 2016.


• Laserfax participated in a conciliation conference in the Western Australian Industrial Relations Commission on 22 November 2016 before Commissioner Emmanuel.


• The conciliation conference did not resolve the matter and on 24 November 2016 Mr Justin Lilleyman, from the Chamber of Commerce and Industry of Western Australia on behalf of Laserfax, advised Mr Prichard that the State Commission had no jurisdiction to deal with the matter.


• Later that day Mr Pritchard filed his application with the Fair Work Commission.


• Mr Pritchard contends he is a lay person, not experienced in Industrial Relations and made an honest mistake.

[6] Laserfax filed a submission which stated that;

• The circumstances detailed by Mr Pritchard (which do not appear to be disputed) do not represent ‘exceptional circumstances’. 1


• Other documentation provided to Mr Pritchard during his employment clearly indicated that he was employed by a Pty Ltd company.
• The onus is upon Mr Pritchard to file in the correct jurisdiction.
• The application was filed out of time.
• No allegation of prejudice was advanced.
• It would be unfair to allow the application because Mr Pritchard made the wrong choice when he first applied to challenge the dismissal.

[7] A hearing was conducted by way of telephone conference on 30 January 2017. Mr Pritchard attended. Mr Lilleyman, with Mr Bartulovic, attended on behalf of Laserfax. A sound file record of the telephone conference was kept.

[8] At the telephone conference the parties re-iterated their submissions. I note that events detailed by Mr Pritchard, which occurred post dismissal, are not in dispute. The issue in this matter is whether there are ‘exceptional circumstances’.

[9] Section 394 of the Act 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] Mr Pritchard’s unfair dismissal application was made 24 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[11] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd² 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.”

[12] Mr Pritchard explains the delay by advising that he actively contested the matter but mistakenly chose the wrong jurisdiction in which to lodge the complaint. I accept that it was not immediately obvious to Mr Pritchard that he was employed by a constitutional corporation. I note that the employer entity was a Trust which may have complicated matters and the trading name did not contain the term ‘Pty Ltd’. I accept that Mr Pritchard is not well versed in industrial relations law. I note that he took prompt action to contest his dismissal, and that Laserfax actively participated in the State Commission processes until it received advice from the Western Australian Industrial Relations Commission that there was a jurisdictional issue. I note that Mr Pritchard acted upon this advice within 30 minutes of being made aware of it, by filing an application with the Fair Work Commission.

[13] The applicant needs to provide a credible explanation for the entire period of the delay. 3 In my view, Mr Pritchard has done so.

[14] There is no submission that the granting of an extension of time represents prejudice to Laserfax.

[15] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.

[16] Consideration of fairness relative to other persons in similar positions supports an extension of time.

Conclusion

[17] For the reasons I have set out above, I am satisfied that Mr Pritchard’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and the application will accordingly be referred for conciliation. An Order 4 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr Pritchard, on his own behalf.

Mr Lilleyman of the Chamber of Commerce and Industry of Western Australia with Mr Bartulovic, on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

January 31.

 1   Robertson v Seugman Electrical and Communications Services Pty Ltd[2010] FWA 4525

2 [2011] FWAFB 975

 3   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

 4   PR589865

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<Price code C, PR589864>