Fluellen Andan v Northern Rise Village Services Pty Ltd
[2015] FWC 5837
•24 AUGUST 2015
| [2015] FWC 5837 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Fluellen Andan
v
Northern Rise Village Services Pty Ltd
(U2015/8179)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 24 AUGUST 2015 |
Application for relief from unfair dismissal.
[1] This decision arises from an application 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).
[2] After considering the submissions the parties I was satisfied that the relationship between Mr Andan and the respondent ended on 21 May 2015. The application was therefore not lodged out of time. The substance of the notice of termination is extracted below.
“Dear Andan
Termination of your employment by reason of loss of contract
The purpose of this letter is to confirm that as of 12th May 2015 Northern Rise will no longer be operating at Combabula – Hillview.
As a result of this loss of contract the position of Chef is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection of your performance.
In line with your contract of employment and the National Employment Standards, Northern Rise has attempted to find you an alternative position within the organisation and any associated entities.
Unfortunately no suitable vacancies currently exit (sic) at Northern Rise sites although we will ensure to consider you for any opportunities that may exist in the future.
Based on your length of service, your notice period is 4 weeks. Your employment will end on 21st May 2015.
Your contract of employment states that you will not be entitled to severance when redundancy is due to ordinary and customary turnover of labour. Further, the contract of employment explains that for the purpose of your employment, ordinary and customary turnover of labour includes Northern Rise losing a contract with the client for any reason.
You will be paid your accrued entitlements and any outstanding pay, including superannuation, up to and including your last day of employment.
We thank you for your valuable contribution during your employment with us. We are currently looking at new business opportunities in Queensland and if successful, we will be in contact with you.
Please contact me if you have any questions regarding this matter.”
[3] The respondent contended that the effective date of termination of employment was 8 May 2015. If this was the case the application was lodged six days outside the prescribed time for lodgement. For greater caution I decided to also consider the application for an extension of time on the basis of the respondent’s date. If the respondent’s contention was correct the application was lodged six days outside the statutory time limit.
[4] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Andan. Mr Andan did not consider that his application was late and did not include an explanation for delay in the application. I wrote to him on 7 July 2015 outlining the matters I was required to consider by the Act and asked him to provide a statement addressing these matters within 14 days. Mr Andan provided a statement on 16 July 2015. It is extracted below.
“I would like to request your kind office to please reconsider for the delay regarding the application seeking for remedy. Please understand that I am not a lawyer and haven’t sought help from one nor am I well versed with the technicality of this situation, as I had based my action in filing this complaint on the termination letter which was very much confusing.
I was not made aware that 8th of May 2015 would be the dismissal date. I felt that there had been a deception on the part of the Project Manager when I was asked if I would like to go home much earlier than I was supposed to be rostered (as the end of my swing would have been 12th of May 2015). I agreed to go ahead because in all honesty, in my mind the 12th of May till 19th of May 2015 which was my week off, & presumed that technically I was still officially an employee since it was stated in the Termination Letter that 21st of May was the end of my employment. Before I went on my week off, I asked for clarification of the company wants me to come back for two days (20th and 21st of May 2015) to work off the remaining days until the end date of my employment. I was told that it wasn’t necessary. As I had read in the Fair Work Act 2009, I have to apply for an Unfair Dismissal Application within 21 days after the end of my employment and I honestly thought that I was within that timeframe. I am attaching the Termination Letter for your personal evaluation.”
[5] I issued an Order allowing Mr Andan’s application for an extension of time on 11 August 2015.
[6] The relevant legislative framework for the exercise of the Fair Work 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.
[7] 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]
[8] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not necessary that the applicant for that 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.
[9] I considered the various criteria to which my attention is directed by s.394(3) of the Act.
reason for the delay-s.394(3)(a)
[10] The reason Mr Andan provided for his delay was reliance on the respondents information and correspondence. I am satisfied that the information was confusing and Mr Andan was entitled to rely on it.
whether the person first became aware of the dismissal after it had taken effect-s.394(3)(b)
[11] Mr Andan became aware of the end of his relationship with the respondent on 21 April 2015.
any action taken by the person to dispute the dismissal-s.394(3)(c)
[12] Mr Andan disputed his dismissal by lodging this application.
prejudice to the employer-s.394(3)(d)
[13] I was satisfied that there would be no greater prejudice to the respondent caused by Mr Andan’s application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.
the merits of the application-s.394(3)(e)
[14] Merit was a neutral issue in my consideration of this application.
fairness as between Mr Andan and other persons in a similar position-s.394(3)(f)
[15] There was no issue of fairness in relation to any other person in a similar position.
[16] Having considered all of the matters to which my attention is directed by the Act I was satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis allowed the application. I was satisfied that Mr Andan’s circumstances were out of the ordinary course, unusual, special or uncommon.
SENIOR DEPUTY PRESIDENT
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