Dr Mark Groves v Armitch Pty Ltd T/A Armitch Pty Ltd

[2016] FWC 8308

[2016] FWC 8308

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Dr Mark Groves
v
Armitch Pty Ltd T/A Armitch Pty Ltd
(U2016/10765)

COMMISSIONER PLATT ADELAIDE, 18 NOVEMBER 2016

Application for relief from unfair dismissal – exceptional circumstances- extension of time granted.

[1] Mr Groves lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Armitch Pty Ltd T/A the Hahndorf Veterinary Clinic.

[2] The application was lodged by Mr Groves on 29 August 2016.

[3] That application advised that Mr Groves dismissal took effect on 29 July 2016 and provided the following reason for the late lodgement:

“I was not aware that the dismissal was unfair until 26/8/2016. I was advised by Dr Darren Arnold W/E 10/7/2016 that the sale of the practice was agreed, and the new owner preferred not to takeover while business was quiet. I was offered to finish at the end of the week or the end of the month and asked to continue to the end of the month if possible as it suited the practice takeover better. I had accepted the reason for my redundancy and termination was bona fide and had no reason to doubt my employer. Sale of the practice was a legitimate reason for redundancy, and I had never experienced such professional misconduct in over 30 years since graduating. In addition, I thought my performance was exemplary given the practice growth I had achieved, and overwhelming positive client feedback I received during my tenure – in the absence of any complaints from my employer. On 22/8/2016, I discovered that Dr Amanda Auricht was the new vet at the clinic, but that she was only working part-time. This seemed unusual under the circumstances, and raised my concern whether the practice had actually been sold. I also found that my name and images were still being used on the clinic’s Facebook page and web site. I considered this was unethical and unprofessional given the new owner seemed to be exploiting the goodwill I had generated over the previous two years, hence I emailed Hahndorf Vet Clinic on 24/8/2016, and requested the references be removed - but I received no reply. I contacted the Veterinary Surgeon’s Board SA to ask if they had the details of practice owners (I received a voice mail reply that they didn’t have this information on record at a later date.) On 25/8/2016, I emailed the parent practice (Adelaide Hills Equine Clinic), and requested the contact details and preferred time to contact Dr Auricht (to ask her directly if she had bought the clinic) - but I again received no response. I considered the lack of email responses was abnormal, and together with some events leading up to my departure I felt it was prudent to definitively establish if the practice had been sold - so I checked the ASIC business register on 25/8/2016.The register indicated the Hahndorf Veterinary Clinic was still registered by Armitch Pty Ltd. At this point I suspected the practice had not been sold as I was led to believe by the directors and staff, but given it was possible that the ASIC register had not been amended, I still lacked legal confirmation on which to base an unfair dismissal claim. Being unable to get a response to my emails from the clinic I rang Hahndorf Veterinary Clinic on 26/8/2016 to try to confirm whether the practice had been sold, but there was no answer and no voice message available for clients. I considered this was extraordinary. I subsequently searched the internet for alternate contact details for Dr Amanda Auricht, and found she was listed on the veterinary staff of another practice - Vets4Pets. I contacted the practice and asked to speak with Dr Auricht. I was advised Dr Auricht was not available, but when she rang me back she confirmed she did not buy the practice, and indicated to me she never intended to buy the practice. In my opinion, given (a) under the circumstances I initially had no reason to doubt the basis of my termination; (b) the basis for an unfair dismissal claim relied on proving that the reason for my redundancy/termination (i.e. the sale of the practice) was false was very challenging and complex due to the apparent obstruction to my inquiries by my employer, and lack of access to relevant information; (c) the sale only came under suspicion this week when new information became available, and (d) I was unable to clarify whether or not the practice had been sold until today (26/8/2016) –– I considered I was unable to make this application within 21 days of my termination, and request that I be allowed dispensation from the time limit.”

[4] On 27 October 2016, my associate corresponded with both Mr Groves and the Hahndorf Veterinary Clinic and advised that the extension of time application would be heard at telephone conference on 17 November 2016. Substantial information about the extension of time issue was provided to the parties. The Applicant was was directed to provide a statement detailing his position and any document to be relied upon relative to the extension of time issue by 4 November 2016 and the Respondent was given the option to respond by 11 November 2016.

[5] The matter was listed for a telephone hearing on 17 November 2016.

[6] The Employer’s Response to the application indicated that it opposed the application based on the termination being a genuine redundancy, the applicant failing to meet the minimum employment period and it being lodged out of time.

[7] The written submissions filed on behalf of Mr Groves are summarised as follows:

● on or about 5 July 2016, Dr Darren Arnold advised Mr Groves that the practice had been sold and his position would be made redundant;
● this decision was confirmed in writing on 12 July 2016, by Mr Pete Flower the letter stated that his employment would terminated by way of redundancy on 29 July 2016, due to “the impending sale of the Hahndorf Vet Clinic business;”
● Mr Groves accepted the truth of the information provided and was dismissed on 29 July 2016;
● on or about 21 August 2016, Mr Groves became aware that a new vet, Dr Amanda Auricht had commenced employment at the Clinic;
● Ms Auricht advised Mr Groves that she had not and had never intended to purchase the business;
● Mr Groves then investigated the ownership of the Clinic and on 26 August 2016, he was informed by Ms Auricht that the Clinic had not been sold; and
● Mr Groves believed he had been misled by Dr Arnold and lodged his unfair dismissal application on 29 August 2016.

[8] The written submissions filed on behalf of the Hahndorf Veterinary Clinic are summarised as follows:

● the business has not been sold and remains for sale;
● the business was unprofitable in the 6 months leading up to Mr Groves’ dismissal which has made the sale of the business difficult;
● the poor business performance required operational changes;
● the best option was to try and sell the business to a current employee, this opportunity was offered to Mr Groves but was declined;
● the circumstances surround the late application are not exceptional.

[9] On 17 November 2016, a hearing was conducted by teleconference. Mr Groves represented himself and Hahndorf Veterinary Clinic was represented by Mr Arnold.

[10] A sound file record of the telephone conference was kept.

[11] At the conference, Mr Groves reiterated his written submissions, Mr Arnold denied stating that the business was sold but was unable to adequately explain why the letter provided to Mr Groves dated 12 July 2016 referred to the impending sale of the business. I prefer the evidence of Mr Groves on this matter.

[12] The information provided to the parties included a copy of s.394 of the Act and advised of the factors I am required to take into account in considering this matter.

[13] 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.”

[14] Mr Groves’ unfair dismissal application was made 10 days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended.

[15] I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ 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.”

[16] Mr Groves’ submission is that he was misled by Dr Arnold as to the cause of his redundancy and only became aware of the true position on 26 August 2016, lodging his application three days later.

[17] Based on the material before me it appears that Mr Groves was misled as to the reasons for his dismissal, and that upon realising the true position he acted promptly to contest the termination. This is somewhat analogous to the facts in Rodney Cross, Karin Thompson and Denis Payne v Bananacoast Community Credit Union Ltd T/A BCU 2 where Deputy President Sams found that information provided to employees which challenges the genuineness of a redundancy after the time for lodging an unfair dismissal has lapsed, may amount to exceptional circumstances warranting the granting of an extension of time.

[18] I am not satisfied that the granting of an extension of time represents prejudice to the respondent in this matter.

[19] In terms of the merits of the application, it appears to me that there is merit in Mr Groves’ claim and accordingly this is a positive factor with respect to the extension of time issue.

Conclusion

[20] For the reasons I have set out above, I am satisfied that Mr Groves circumstances can be regarded as exceptional so as to support an extension of time. I therefore, extend the time for Mr Groves to lodge his application to the date upon which he filed in the Commission. An Order 3 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

M Groves on his own behalf.

D Arnold, on behalf of the Respondent.

Hearing (Conference) details:

2016.

Adelaide:

November 17.

1 [2011] FWAFB 975.

 2   [2012] FWA 7681.

 3   PR587697.

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<Price code A, PR587696>