Felix Ugomba v Weir Minerals Australia Ltd

[2014] FWC 5751

[2014] FWC 5751

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Felix Ugomba
v
Weir Minerals Australia Ltd
(U2014/7679)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 22 AUGUST 2014

Application for relief from unfair dismissal.

[1] Thisapplication for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act)was heard by me in Sydney on 15 August 2014.

[2] Mr Egelonu, solicitor, appeared for Mr Ugomba. Ms Rodriguez, from the Australian Industry Group, appeared for Weir Minerals Australia Ltd (Weir).

[3] Mr Ugomba's employment was terminated on 5 May 2014. He lodged his application on 30 May 2014. His application was four days outside the statutory time limit.

[4] The relevant legislative framework for the exercise of the Fair Work Commission’s (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.

[5] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 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]

[6] Mr Ugomba’s solicitor tendered a written submission 1. Although Ms Rodriguez confirmed that there was a factual dispute he declined to call Mr Ugomba to give evidence.

[7] Ms Rodriguez wished to cross-examine Mr Ugomba. Since Mr Ugomba did not volunteer to give evidence, and as she had not subpoenaed Mr Ugomba to give evidence, that was not possible.

[8] Ms Rodriguez provided statements from two witnesses. Mr Ugomba’s solicitor objected to those statements being tendered, or the witnesses being called to give evidence in support of those statements, on the basis that they were not executed in accordance with the rules. I allowed the witnesses to be called in support of their statements. Mr Daniel Newman, Senior Human Resources Adviser for Weir, and Mr Justin Barcz, Elastomer Production Manager, gave evidence and their statements 2 were tendered.

[9] After the witnesses for Weir were called to give evidence, and their statements were tendered, Mr Ugomba's solicitor was given the opportunity to cross-examine. He was unable to do so. He had relied on what he considered to be the probable success of his application to have the statements excluded from the proceedings and had therefore not prepared to cross-examine. I stood the application down to 3 pm on that day to allow him to prepare. At 3 pm he commenced cross-examination of both witnesses.

[10] I accept the evidence of Mr Newman and Mr Barcz. I am satisfied and find that the facts in relation to the termination of Mr Ugomba's employment, as summarised below, are as described by those witnesses.

[11] In December Mr Ugomba requested leave to get married and attend to the care of his father who he said needed to travel from Nigeria to India for medical treatment. The arrangement he entered into with Mr Barcz on 9 December 2014 was that he would take leave from 30 December 2013 to 31 March 2014. Ten weeks of that leave was leave without pay. I am satisfied that the arrangement in place was that Mr Ugomba would return to work on 31 March 2014 at the latest, although there was discussion of the possibility of an early return. The arrangement was that Mr Ugomba would call his supervisor, Mr Steve Kaliti, in February and again by 14 March 2014, to advise if he intended to return earlier. There was no agreement concerning a late return.

[12] Mr Ugomba's father died on 27 February 2014. Mr Ugomba advised Mr Barcz of that event by telephone on the same day. During this conversation Mr Ugomba did not ask for an extension of leave.

[13] On 5 March 2014 Mr Ugomba left a voice message asking for an extension of his leave. Following this message there were attempts made by Weir to contact Mr Ugomba by telephone on the mobile number from which Mr Ugomba had called.

[14] On 12 March 2014 a text message was sent to Mr Ugomba which was followed by a telephone conversation. There was further evidence concerning subsequent attempts to contact Mr Ugomba which I have not set out here. The content of the text message and the conversation of 12 March 2014 is set out below:

“At approximately 7:20pm, Felix called me back and I recall a conversation to the following effect:

Felix: The Priest can’t bury my father for another month because he is in Israel for lent. Priest won’t be back until April, first or second week.

Me: Why do you need until the end of April then?

Felix: It will take time after the Priest is back to organise something.

Me: Can you organise another Priest?

Felix: No

Me: I can’t give you leave until the end of April. Can you come back to work and then we’ll organise leave to go back to bury your father.

Felix: It costs too much. Will work pay for my ticket?

Me: Work won’t pay for it.

Felix: I can’t come back.

Me: I can’t guarantee your job after 31 March 2014.

Felix: I can’t believe you put me in this situation.

Felix either hung up or the phone cut out.”

[15] On 2 May 2014 Mr Ugomba turned up for work. He was not expected. On 5 May 2014 there was a meeting between Mr Newman, Mr Barcz and Mr Kaliti at which Mr Ugomba's employment was terminated for failure to comply with a direction to return to work.

[16] I accept the evidence of the two witnesses for Weir that, in all of their verbal exchanges with Mr Ugomba in the course of his employment, he understood the essential elements of their conversation. I accept the evidence of those two witnesses that, in all of their verbal exchanges with Mr Ugomba, there was no mention of his being hospitalised consequent upon the death of his father. I noted that, although an interpreter in the Igbo language was available when the matter was listed before me at 12 noon, the interpreter did not appear to interpret any of the proceedings.

[17] I have considered Mr Ugomba’s reasons for delay, being his ignorance of the law and his difficulty in understanding arising from a lack of English. Ignorance of the requirements of the Act is not usually sufficient to establish exceptional circumstances and in this case I am not satisfied that Mr Ugomba had sufficient difficulty with spoken English to persuade me that his circumstances amounted to exceptional circumstances.

[18] Mr Ugomba first became aware of his dismissal immediately it took effect. This was a neutral consideration.

[19] Mr Ugomba did not take any immediate action to dispute his dismissal except for his request to Weir to reconsider their decision at the dismissal meeting. There were no subsequent disputations of the dismissal until lodgement.

[20] There is no prejudice to the employer of any relevant kind. This was a neutral consideration.

[21] Having considered the evidence of Mr Newman and Mr Barcz I am satisfied that the substantive application of Mr Ugomba has very little merit and would be unlikely to succeed.

[22] There is no issue of fairness as between Mr Ugomba and any other person in a similar position.

[23] For these reasons I am satisfied that there are no exceptional circumstances justifying an extension of time for lodgement of Mr Ugomba's application. The application is dismissed.

SENIOR DEPUTY PRESIDENT

 1   Exhibit Ugomba 1

 2   Exhibits Weir Minerals Australia Limited 1 and 2

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