Dirk Witzmann v MSS Security Pty Ltd

[2015] FWC 3553

[2015] FWC 3553

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Dirk Witzmann
v
MSS Security Pty Ltd
(C2015/2431)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 26 MAY 2015

Application to deal with contraventions involving dismissal - late lodgement - extension of time not granted.

[1] Mr Witzmann has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with MSS Security Pty Ltd (MSS). At a telephone conference convened on 25 May 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in s.366 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 Witzmann's application was lodged on 8 April 2015. In that application Mr Witzmann advised that he was constructively dismissed.

[3] The Employer’s Response to the application (the Form F8A) asserted that Mr Witzmann resigned his employment and that his last day of work was 31 January 2015. In this response MSS asserted that the application lacked foundation as Mr Witzmann was not dismissed at the initiative of the employer and was not made redundant. MSS also asserted that the application was lodged outside of the 21 day time limit specified in the FW Act.

[4] The application was the subject of a conference with me on 24 April 2015. At the commencement of this conference I raised the potential late lodgement issue. MSS requested that the late lodgement issue be determined before any further action was taken in relation to the application. Accordingly, the matter was considered in a telephone conference on 25 May 2015.

[5] Mr Witzmann provided a witness statement. On the basis of this statement and the advice provided by Mr Witzmann I have concluded that Mr Whitman resigned with effect from 31 January 2015. He strongly disputes the circumstances under which he resigned and asserts that he was left with no option other than to resign and should have been paid a redundancy payment following the loss, by MSS of its security contract with the Holden Manufacturing Plant. He summarised discussions which he had with other former MSS employees, on his return from leave on 5 February 2015. He described his, and other former employees’ shock and emotional distress over their employment and concerns over possible underpayments. Mr Witzmann and unnamed other former MSS employees considered accessing legal advice but decided to pursue their concerns through the Fair Work Ombudsman (the Ombudsman). Enquiries of the Ombudsman were made on 23 February and a formal complaint was lodged on 19 March 2015. On 27 March 2015 the Ombudsman advised that a General protections application involving dismissal had to be submitted to the Fair Work Commission. This application was lodged nearly two weeks later.

[6] MSS also provided additional information. This went to the advice provided to its employees working on the Holden contract and to Mr Witzmann's advice that he had chosen to leave MSS and pursue a career with the incoming security contractor. Additionally, MSS addressed Mr Witzmann’s action or inaction during the period since the termination of his employment with MSS.

[7] Mr Witzmann participated in the telephone conference. Ms Jansen, the MSS Human Resources Manager, represented MSS. 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.

[8] Section 365 relevantly states:

“365 Application for the FWC to deal with a dismissal dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

[9] Section 366 states:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[10] On the information before me I am satisfied that the application was made some 46 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.366 in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 1 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] I have concluded that Mr Witzmann was unaware of the time limit until around two weeks before he lodged his application. I have also concluded that, at least by early February 2015, he had reservations about whether his resignation could be characterised as a dismissal. Further, Mr Witzmann advised that the delay from 27 March 2015 to the lodgement of the application on 8 April 2015 was because Mr Witzmann could not afford the lodgement fee and was not aware of the capacity to seek a waiver of that fee.

[12] I have concluded that Mr Witzmann’s delay in accessing advice was his own decision and cannot be regarded as indicative of an exceptional circumstance. To the extent that Mr Witzmann was not aware of the time limit for the lodgement of this application, this is not indicative of an exceptional circumstance. Further, the later delay because he was not aware of the capacity to seek a fee waiver does not represent an exceptional circumstance. Consequently, I am not satisfied that Mr Witzmann has established that the reasons for this substantial delay in lodging the application reflect exceptional circumstances.

[13] I have concluded that Mr Witzmann was clearly aware that his employment with MSS concluded on 31 January 2015 and I have taken that date as the date that termination of employment took effect. I am not satisfied that, apart from the late lodgement of this application, Mr Witzmann pursued other actions so as to challenge the termination of his employment as distinct from addressing his concerns about alleged underpayments including redundancy entitlements. I consider that an extension of time of this magnitude would most likely prejudice MSS but have not relied on this in reaching a conclusion about the extension of time issue.

[14] In terms of the merits of the application, information which allows a definitive conclusion in this respect is not before me. I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

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

[16] Accordingly I have concluded that the material before me does not establish that Mr Witzmann's circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR567720) giving effect to this decision will be issued.

Appearances (by telephone):

D Witzmann on his own behalf.

R Jansen for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

May 25.

 1   [2011] FWAFB 975

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